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Special Inspector General for Afghanistan Reconstruction.
Interim rule with request for comments.
The Special Inspector General for Afghanistan Reconstruction (SIGAR), with the concurrence of the Office of Government Ethics (OGE), is issuing an interim regulation for SIGAR employees that will supplement the executive branch-wide Standards of Ethical Conduct (Standards) issued by OGE. The supplemental regulation includes a requirement that SIGAR employees obtain prior approval for certain types of outside activities.
You may submit comments, in writing, to Hugo Teufel on this rule, identified by RIN 3460–AA01, by any of the following methods:
•
•
•
Christina Beach, Ethics Compliance Officer, at 703–545–5994, email:
In 1992, OGE published the Standards of Ethical Conduct for Employees of the Executive Branch, as codified at 5 CFR part 2635 and effective February 3, 1993, which established uniform standards of ethical conduct applicable to all executive branch personnel.
The National Defense Authorization Act (Pub. L. 110–181) established SIGAR. The agency's mission is to provide independent oversight of the treatment, handling, and expenditure of funds appropriated or otherwise made available for the reconstruction of Afghanistan; detect and deter fraud, waste, and abuse of U.S. funds; and promote actions to increase program economy, efficiency, and effectiveness. Afghanistan reconstruction includes any major contract, grant, agreement, or other funding mechanism entered into by any department or agency of the United States government that involves the use of amounts appropriated, or otherwise made available for the reconstruction of Afghanistan with any private entity to: (1) Build or rebuild physical infrastructure of Afghanistan, (2) establish or reestablish political or societal institutions of Afghanistan, (3) build the Afghanistan National Security Forces, and (4) provide products or services to the people of Afghanistan.
Given the importance of the agency's mission and the need to maintain objectivity and independence, SIGAR, through the proposed provisions, would require prior agency approval before employees engage in certain outside activities. Part 2635.105 authorizes executive branch agencies, with the concurrence of OGE, to publish such agency-specific supplemental regulations as may be necessary to implement their respective ethics programs. SIGAR, with OGE's concurrence, has determined that the following supplemental regulation is necessary, given SIGAR's unique status and mission, to implement the agency's ethics program.
Section 9303.101 explains that the regulations apply to all SIGAR employees and supplement the executive branch-wide Standards in 5 CFR part 2635. Section 9303.101 also provides a cross-reference to the executive branch-wide financial disclosure regulations contained in 5 CFR part 2634, the executive branch-wide regulation regarding outside employment at 5 CFR part 2636, and the regulation concerning executive branch financial interests contained in 5 CFR part 2640.
Under 5 CFR 2635.803, agencies may, by supplemental regulations, require employees to obtain approval before engaging in outside employment and activities. SIGAR has determined that it is necessary to the administration of its ethics program to require its employees, other than special Government employees, to obtain prior approval for certain types of outside employment and activities. This approval requirement will help to ensure that potential ethical problems are resolved before employees begin outside employment or activities that could involve a violation of applicable laws and regulations.
Under § 9303.102(a)(1), SIGAR employees must obtain prior approval regarding the provision of professional services that involve the application of the same specialized skills or the same educational background as performance of the employee's official duties. Such outside activities may raise a strong risk of a violation of the Standards. For purposes of this section, the definition of “professional services” in § 9303.102(d)(3) reflects the definition of “profession” as provided at 5 CFR 2636.305(b)(1), and means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession. Secretarial and clerical positions are not, for purposes of this requirement, considered to provide “professional services.”
Under § 9303.102(a)(2), SIGAR employees must obtain prior approval regarding teaching, speaking, or writing that relates to the employee's official
Under § 9303.102(a)(3), SIGAR employees must obtain prior approval regarding certain services for a “prohibited source.” The term “prohibited source” is defined in § 9303.102(d)(4) as having the meaning set forth in § 2635.203(d) of the Standards, and therefore in summary includes a person or organization, a majority of whose members seek official action by SIGAR, do or seek to do business with SIGAR, are subject to oversight by SIGAR pursuant to sections 1229 and 842 of the National Defense Authorization Act for FY 2008, Pub. L. No. 110–181, or who may be substantially affected by the performance or nonperformance of the employee's duties. The kind of services for a prohibited source for which § 9303.102(a)(3) requires prior approval are those that could raise a question of conflicting financial interests under subpart D of the Standards or a question of loss of impartiality in performing official duties under subpart E of the Standards. Those services include service as an officer, director, trustee, general partner, employee, agent, attorney, consultant, contractor, or “active participant.” The term “active participant” is defined in § 9303.102(d)(1) as having the meaning set forth in subpart E of the Standards, at 5 CFR 2635.502(b)(1)(v). In accordance with that definition, payment of dues to an organization, or the donation or solicitation of financial support, alone does not constitute active participation.
An exception to the prior approval requirement in § 9303.103(a)(3) excludes from the prior approval requirement therein a number of uncompensated and volunteer activities that are unlikely to raise issues under the Standards. Specifically, employees do not have to obtain approval before providing the services listed in § 9303.102(a)(3), if the service is without compensation (other than reimbursement of expenses) and the prohibited source for which the service is to be provided is a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization. However, prior approval for such an activity is required if the activity is covered by another of the prior approval requirements in this section.
Under § 9303.102(a)(4), SIGAR employees must obtain prior approval regarding the provision of services, other than clerical services or service as a fact witness, on behalf of any other person in connection with a particular matter in which the United States is a party, in which the United States has a direct and substantial interest, or if the provision of services involves the preparation of materials for submission to, or representation before, a Federal court or executive branch agency. Under 5 CFR 2635.805, employees are required to obtain authorization before acting as expert witnesses, other than on behalf of the United States, in any proceeding before a Federal court or agency in a matter in which the United States is a party or has a direct and substantial interest. Paragraph (a)(4) of § 9303.102 is intended to cover such testimony as an outside activity, thus eliminating the need to create a separate procedure for the required authorization. In addition, requiring prior approval under these circumstances will help employees to avoid violating the representational bars in 18 U.S.C. 203 and 205.
Section 9303.102(b) sets forth the procedures for submitting a request for approval of an outside activity, specifying the information to be included in the employee's request, and the contents of a certification the employee is to submit with the request for approval.
Section 9303.102(c) specifies the standard for granting approval. Approval shall be granted only upon a determination by the agency official who is the designated authority to make such a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation.
Section 9303.102(d) defines the terms “active participant,” “nonpublic information,” “professional services,” “prohibited source,” and “relates to the employee's official duties,” for purposes of the section, as explained above, consistent with the Standards and other regulations issued by OGE.
Requiring prior approval will give SIGAR managers the opportunity to review the proposed employment or activity in light of the employee's official duties and to consult with an agency ethics official concerning the applicability of Federal conflict of interest statutes and ethics regulations to the proposed activity. The executive branch-wide Standards, at 5 CFR 2635.802, explain that an activity conflicts with an employee's official duties if it is prohibited by statute or by an agency supplemental regulation, or if, under the standards set forth in §§ 2635.402 and 2635.502 of the Standards, it would require the employee's disqualification from matters so central or critical to the performance of the employee's official duties that the employee's ability to perform the duties of his or her position would be materially impaired. Even when prior approval is not required, conflict of interest statutes and the Standards may restrict the actions of employees in connection with participation in such activities or organizations.
Under 5 U.S.C. 1103(b)(1) and 1105, these regulations are not subject to the rulemaking requirements of the Administrative Procedure Act, at 5 U.S.C. 553(b), (c), and (d), because they apply solely to SIGAR or its employees. Furthermore, SIGAR finds good cause that it is in the public interest that these internal regulations take effect as an interim rule upon the date of publication of this
As Acting Inspector General of SIGAR, I have determined under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rule will not have a significant economic impact on a substantial number of small entities because it will primarily affect SIGAR employees.
As Acting Inspector General of SIGAR, I have determined that the Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this rule, because it does not contain any information collection requirements that would require the approval of the Office of Management and Budget.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.
SIGAR has determined that this rule is not a rule as defined in 5 U.S.C. 804 and, thus, does not require review by Congress.
In promulgating this rule, SIGAR has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. This rule has not been reviewed by the Office of Management and Budget under that Executive order, since it deals with agency organization, management, and personnel matters and is not in any way event deemed “significant” thereunder.
As Acting Inspector General of SIGAR, I have reviewed this rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.
Conflict of interests, Government employees.
For the reasons set forth in the preamble, the Special Inspector General for Afghanistan Reconstruction, with the concurrence of the Office of Government Ethics, is amending chapter LXXXIII of title 5 of the Code of Federal Regulations by adding part 9303 to read as follows:
5 U.S.C. Section 7301; 5 U.S.C. App. (Ethics in Government Act of 1978, as amended), E.O. 12674, 54 FR 15159, 3 CFR 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547; 3 CFR 1990 Comp., p. 306; 5 CFR 2635.105, 2635.702, 2635.703, 2635.801, 2635.802, 2635.803, and 2635.805.
In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. In addition to the regulations in 5 CFR part 2635 and this part, SIGAR employees are subject to the executive branch-wide financial disclosure regulations contained in 5 CFR part 2634; the executive branch regulations regarding outside employment at 5 CFR part 2636; and the regulations concerning executive branch financial interests contained in 5 CFR part 2640.
(a)
(1) Providing professional services involving the application of the same specialized skills or the same educational background as performance of the employee's official duties;
(2) Teaching, speaking, or writing that relates to the employee's official duties;
(3) Serving as an officer, director, trustee, general partner, employee, agent, attorney, consultant, contractor, or active participant for a prohibited source, except that prior approval is not required by this paragraph (a)(3) to provide such service without compensation (other than reimbursement of expenses) for a prohibited source that is a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization, unless prior approval for the activity is required by paragraph (a)(1), (a)(2), or (a)(4) of this section; or
(4) Providing services, other than clerical services or service as a fact witness, on behalf of any other person in connection with a particular matter:
(i) In which the United States is a party;
(ii) In which the United States has a direct and substantial interest; or
(iii) If the provision of services involves the preparation of materials for submission to, or representation before, a Federal court or executive branch agency.
(b)
(i) The employee's name and position title;
(ii) The name and address of the person or organization for whom or for which the outside activity is to be performed;
(iii) A description of the proposed outside activity, including the duties and services to be performed while engaged in the activity; and
(iv) The proposed hours that the employee will engage in the outside activity, and the approximate dates of the activity.
(2) Together with the employee's request for approval, the employee shall provide a certification that:
(i) The outside activity will not depend in any way on nonpublic information;
(ii) No official duty time or Government property, resources, or facilities not available to the general public will be used in connection with the outside activity; and
(iii) The employee has read subpart H (“Outside Activities”) of 5 CFR part 2635.
(3) Upon a significant change in the nature or scope of the outside activity or in the employee's official position, the employee shall submit a revised request for approval.
(c)
(d)
(1) “
(2) “
(3) “
(4) “
(5) “
In rule document 2012–7008 appearing on pages 19071–19074 in the issue of March 30, 2012, make the following correction:
Mine Safety and Health Administration, Labor.
Final rule.
The Mine Safety and Health Administration (MSHA) is revising its requirements for preshift, supplemental, on-shift, and weekly examinations of underground coal mines to require operators to identify violations of health or safety standards related to ventilation, methane, roof control, combustible materials, rock dust, other safeguards, and guarding, as listed in the final rule. Violations of these standards create unsafe conditions for underground coal miners. The final rule also requires that the mine operator record and correct violations of the nine safety and health standards found during these examinations. It also requires that the operator review with mine examiners on a quarterly basis all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. The final rule will increase the identification and correction of unsafe conditions in mines earlier, and improve protection for miners in underground coal mines.
George F. Triebsch, Director, Office of Standards, Regulations, and Variances, MSHA, at
Effective preshift, supplemental, on-shift, and weekly examinations are the first line of defense to protect miners working in underground coal mines. After analyzing the Agency's accident reports and enforcement data for underground coal mines covering a 5-year period, MSHA determined that the same types of violations of health or safety standards are found by MSHA inspectors in underground coal mines every year and that these violations present some of the most unsafe conditions for coal miners. These repeated violations expose miners to unnecessary safety and health risks that should be found and corrected by mine operators. The final rule will increase the identification and correction of unsafe conditions in mines earlier, removing many of the conditions that could lead to danger, and improve protection for miners in underground coal mines.
Section 303 of the Federal Mine Safety and Health Act of 1977 (Mine Act), which retained without change the
The final rule revises MSHA's requirements for preshift, supplemental, on-shift, and weekly examinations of underground coal mines to require operators to identify and correct violations of nine health or safety standards related to ventilation, methane, roof control, combustible materials, rock dust, other safeguards, and guarding, in addition to hazardous conditions. These nine standards are consistent with MSHA's “Rules to Live By” initiatives started in 2010 to prevent fatalities in mining. Violations of these nine standards represent the conditions or practices that, if uncorrected, present the greatest unsafe conditions and the most serious risks to miners. It is important to remind operators that if examiners observe other violations, they remain obligated, as they are under the existing standards, to address these violations. The final rule requires mine operators to record the actions taken to correct these violations.
The final rule, like the proposal, adds a new provision that requires the operator to review with mine examiners, on a quarterly basis, all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. The questions and discussions that arise during the quarterly reviews will educate and enhance the skills and knowledge of the operators and the examiners to identify hazards and violations, resulting in continual improvement in the quality of mine examinations, the safety and health conditions in the mines, and protection for miners.
MSHA estimates that the rulemaking will result in approximately $17.0 million in yearly costs for the underground coal mining industry. MSHA estimates that the monetized benefit to underground coal mine operators, in reduced fatalities and injuries, is approximately $21.3 million yearly, resulting in a net benefit of approximately $4.3 million yearly. MSHA estimates that, on average, the final rule will prevent approximately 2.4 fatalities and 6.4 lost-time injuries per year.
Sections 303(d)(1), (e), and (f) of the Federal Mine Safety and Health Act of 1977 (Mine Act), which retained without change the language of the Federal Coal Mine Health and Safety Act of 1969 (Coal Act), set requirements for preshift, on-shift, and weekly examinations.
Section 303(d)(1) of the Mine Act requires that certified examiners conduct preshift examinations within 3 hours prior to the next shift. The preshift examinations are for specified hazards and for such other hazards and violations of the health or safety standards, as an authorized representative of the Secretary may from time to time require (30 U.S.C. 863(d)(1)). The purpose of the preshift examination is to identify and correct hazards and unsafe conditions, such as methane accumulations, water accumulations, and adverse roof conditions, before other miners travel underground to work their shift.
Section 303(e) of the Mine Act requires on-shift examinations for hazardous conditions (30 U.S.C. 863(e)). The purpose of the on-shift examination is to identify and correct hazards that develop during the shift.
Section 303(f) of the Mine Act requires weekly examinations for hazardous conditions and for compliance with health or safety standards (30 U.S.C. 863(f)). The purpose of the weekly examination is to identify and correct hazards and violations of standards that develop in remote and less frequently traveled areas of the mine, such as worked-out areas and bleeder entries that carry away methane. Methane accumulations in these areas could result in an explosion if they are not discovered and removed from the mine.
On November 20, 1970, MSHA issued a final rule for preshift, on-shift, and weekly examinations for hazardous conditions (35 FR 17890). The final rule restated the statutory provisions of the Coal Act, which were retained in the Mine Act.
On January 27, 1988 (53 FR 2382), MSHA issued a proposed rule to revise the requirements for preshift, on-shift, and weekly examinations and add a new requirement for supplemental examinations. After evaluating the comments, MSHA issued a final rule on May 15, 1992 (57 FR 20868). Neither the proposed rule nor the final rule included a requirement that mine examiners check for violations of health or safety standards.
On May 19, 1994, MSHA proposed revisions to the preshift examination standard (59 FR 26356) to require that examiners look for violations of health or safety standards that could result in a hazardous condition. The proposal had the potential to enhance safety by placing the mine operator in a proactive rather than a reactive role in finding and fixing conditions before hazards develop. After evaluating the comments, MSHA issued a final rule on March 11, 1996 (61 FR 97640). In response to comments, the final rule did not include the proposed requirement that a preshift examination include examining for violations of health or safety standards. In the preamble to the 1996 final rule, MSHA stated its intent that examiners focus their attention on critical areas and the identification of conditions that pose a hazard to miners.
After reviewing accident investigation reports from nonfatal accidents from 2005 through 2009, MSHA identified a direct link between violations of nine standards and accidents that resulted in injuries and fatalities. During that 5-year period, MSHA found that the accident reports for 12 fatalities and 32 nonfatal injuries listed violations of one or more of the nine standards addressed by the final rule as contributing factors. The data shows that when left uncorrected these violations can create hazardous conditions and lead to accidents resulting in injuries and fatalities. Based on the data and the Agency's experience, MSHA determined that only focusing on hazardous conditions would not provide effective safety for miners. MSHA concluded that because the violations of the nine standards in the final rule repeatedly contributed to accidents, fatalities and injuries, the final rule would provide the greatest protection for underground coal miners.
On December 27, 2010 (75 FR 81165), MSHA issued a proposed rule that would have required underground coal mine operators to identify violations of health or safety standards during preshift, supplemental, on-shift, and weekly examinations. The proposal would also have required that mine operators record and correct violations and review with mine examiners, on a quarterly basis, all citations and orders issued in areas where these examinations are conducted. The Agency received comments on the proposed rule and held five public hearings in June and July 2011. These hearings were held in Denver, Colorado;
Underground coal mines are dynamic work environments where the working conditions change rapidly and without warning. Diligent compliance with safety and health standards and safety conscious work practices provide an effective measure of protection against unsafe and hazardous conditions that lead to accidents and emergencies in underground coal mines.
Effective examinations are the first line of defense to protect miners working in underground coal mines. At the beginning of the shift, miners in an underground coal mine are particularly vulnerable to hazards and dangerous conditions in the workplace that developed during the prior shift; the preshift and supplemental examinations are intended to protect miners from such hazards and dangerous conditions. This final rule revises MSHA's existing standards to require that operators examine for violations of health or safety standards in addition to hazardous conditions; it provides more effective underground coal mine examinations and increased safety and health protection for miners.
In developing the final rule, MSHA reviewed accident investigation reports, the Agency's enforcement data for underground coal mines covering a 5-year period, and the public comments received in response to the proposal. After analyzing the accident reports and enforcement data, MSHA determined that the same types of violations of health or safety standards are found by MSHA inspectors in underground coal mines every year. These repeated violations expose miners to unnecessary safety and health risks that should be found and corrected by mine operators. MSHA's review found that the most frequently cited standards accounted for about 50 percent of the total violations at underground coal mines in 2009 and that these violations present some of the most unsafe conditions in underground coal mines.
These violations include the following safety and health conditions: Accumulations of combustible materials; violations of ventilation and roof control plans; insufficient incombustible content of rock dust; improperly constructed airlock doors; or improperly maintained ventilation controls. Absent other conditions, such as a misaligned conveyor belt, an operator might not consider these to be hazardous conditions. However, conditions in underground coal mines change rapidly—a roof that appears adequately supported can quickly deteriorate and fall; stoppings can crush out and short-circuit air currents; conveyor belts can become misaligned or belt roller bearings can fail, resulting in an ignition source; and methane can accumulate in areas where it may not have been detected.
The final rule identifies violations of nine standards, which if left uncorrected, pose the greatest risk to miners' safety. Because the existence of these violations poses the greatest risk to miners, the mine operator is required to identify and correct them. Violations of the nine standards in the final rule can, individually or together, quickly lead to hazardous conditions, and ultimately to disastrous consequences. They represent the types of violations identified in MSHA's “Rules to Live By” initiatives, as well as some of the contributory violations in the Accident Investigation Report of the Upper Big Branch Mine disaster.
An accumulation of fine coal dust (fuel) in an underground air course, for example, contains sufficient oxygen for ignition and is lacking only a heat source to present an immediate fire hazard. In this situation, operators must remove the fuel source (fine coal dust) from the mine because an electrical arc or improperly maintained conveyor belt roller could provide the heat source and start a fire. Compliance with the health or safety standards (
Consistent with the Mine Act, this final rule revises MSHA's examination standards for underground coal mines to include a requirement that examiners conducting preshift, supplemental, on-shift, and weekly examinations identify not only hazardous conditions, but also violations of nine health or safety standards. In response to comments, MSHA has included those standards that represent nine of the most frequently cited violations by MSHA inspectors and are consistent with MSHA's Rules to Live By initiatives. These standards address unsafe conditions and hazards in underground coal mines that present dangers to miners. The final rule requires that mine examiners identify, record, and correct hazards and violations of these nine standards. It is important to remind operators that if examiners observe other violations, they remain obligated, as they are under the existing standards, to address these violations.
Many commenters opposed the proposed rule expressing concern that examinations for violations of all safety and health standards would diminish safety by distracting mine examiners from looking for the more serious hazardous conditions. These commenters noted that in previous rulemakings, after considering this same issue, MSHA decided against including this provision in the final rules. In support of their position, several commenters pointed to a statement in the preamble of MSHA's 1992 final rule in which the Agency stated that—
Commenters supporting the proposed requirement to examine for all violations stated that the proposal addresses a deficiency in the existing standard. They noted that, under the existing standard, a mine examiner might not record and correct an obvious violation of a health or safety standard because the examiner does not believe the violation to be a hazardous condition. MSHA inspection experience indicates that, if the violation is not recorded, operators often fail to correct the violations until they are cited by an MSHA inspector.
In response to commenters who stated that the proposed rule would distract examiners from more serious conditions and those who stated that examiners would overlook obvious violations, the final rule specifies the health or safety standards that must be included in preshift, supplemental, on-shift, and weekly examinations. These standards represent conditions or practices that, if uncorrected, could present the most unsafe conditions and serious risks to miners in underground coal mines. MSHA has identified violations of these standards as contributing to numerous fatalities occurring between 2000 and 2009, and most were emphasized in MSHA's Rules to Live By initiative started in 2010 to prevent fatalities in mining.
Under the final rule, examiners must examine for hazardous conditions and violations of the following nine standards:
§§ 75.202(a) and 75.220(a)(1)—roof support and the mine roof control plan;
§§ 75.333(h) and 75.370(a)(1)—maintenance of ventilation controls and the mine ventilation plan;
§§ 75.400 and 75.403—accumulations of combustible materials and application of rock dust;
§ 75.1403—other safeguards, limited to maintenance of travelways along belt conveyors, off track haulage roadways, track haulage, track switches, and other components for haulage;
§ 75.1722(a)—guarding moving machine parts; and
§ 75.1731(a)—maintenance of belt conveyor components.
These standards represent the conditions or practices that, if uncorrected, would present the greatest unsafe conditions and the most serious risks to miners in underground coal mines. In addition, based on MSHA data and experience, these also represent violations that are frequently found by MSHA inspectors year after year.
Violations of standards included in the final rule are the types of violations that well-trained and qualified examiners can observe while conducting effective examinations. Under the existing standards, violations of these standards may have gone undetected and uncorrected where operators did not believe that they were hazardous conditions. The final rule will provide for a more effective approach to safety and health and add a necessary margin of safety in a particularly dangerous work environment. It will also result in more effective and consistent examinations which assure that hazardous conditions and violations of the standards in the final rule will be timely identified and corrected. The final rule will continue to reflect MSHA's intent under the existing standards that operators prioritize and correct violations based on the seriousness of the hazard.
The final rule requires operators to be more proactive in their approach to mine health and safety and to find and fix violations of health or safety standards in the final rule before they become hazardous. As a result, conditions that might have been identified only by MSHA inspectors will now be found and corrected by the operator, and a culture of safety will be fostered at the mine. The final rule will also promote this culture of safety by requiring operators to review with mine examiners, on a quarterly basis, citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. The final rule will enhance miners' safety because violations of health or safety standards that present the greatest risks will be identified and corrected, removing many of the conditions that could lead to danger in underground coal mines.
The final rule revises the existing preshift examination standard to require operators to check for hazardous conditions and violations of nine health or safety standards in the rule. These standards represent areas which present unsafe conditions for miners where MSHA continues to find violations of safety and health standards. Consistent with the Mine Act, the final rule also provides that the District Manager may require examinations in other areas of the mine for hazardous conditions and for violations of safety or health standards, based on, for example, the violation history of the mine. Like the proposal, the final rule also requires operators to record hazards and all violations, along with the actions taken to correct them.
Some commenters were concerned that the proposed rule did not specify which standards in part 75 the mine examiners would be expected to identify and correct. They noted that while MSHA indicated that the proposed rule was intended to assure that violations of MSHA's most frequently cited standards were identified, the proposed rule language did not list those standards.
Several commenters suggested that MSHA include in the final rule language the violations of specific standards that examiners are expected to identify. Other commenters suggested that, if the proposal went forward, MSHA could limit the violations that examiners would look for to those covered by the Rules to Live By categories or conditions that are significant and substantial (S&S) violations. The nine standards specified in the rule are consistent with the standards identified in MSHA's Rules to Live By initiatives and derived from the ten most frequently cited standards discussed in the proposed rule and further analyzed in the preliminary regulatory economic analysis.
A number of commenters stated that there is not enough time allotted for preshift examinations to examine for all violations of the MSHA standards in 30 CFR part 75. Some commenters were concerned that, without allotting additional time for preshift examinations or limiting the list of standards they would be required to address, mine operators would be required to hire additional examiners. Some commenters indicated that mine examiners would need much more training to identify violations of all MSHA standards in part 75.
Commenters who supported the proposal stated that the rule addresses a deficiency in the existing standard because a mine examiner might not record and correct an obvious violation of a health or safety standard as the examiner might not believe the violation to be a hazardous condition. Other commenters were concerned that the proposal could place mine examiners in a difficult position. They noted that examiners could be disciplined or fired for missing some violations during their examinations even while they may be disciplined for finding many minor technical violations.
Commenters also stated that based on the proposed rule, a mine could get cited twice for the same violation—one citation for the violation of a health or safety standard and another citation for an inadequate examination. Under the existing regulation, operators must conduct required examinations and take required actions to comply with specific standards. The final rule does not change this existing requirement and enforcement practice.
Generally, at the beginning of an inspection, an inspector will review an operator's examination records. As is the case under the existing standard, recording a violation does not automatically result in a citation.
In the final rule, MSHA responds to commenters' concerns by including the requirement that operators conducting preshift examinations examine for violations of nine standards. Operators are, therefore, put on notice as to the specific violations that examiners must look for in their examinations. In this way, operators can better focus on conditions and practices that represent higher risks to miners in the time allotted for the preshift examination. Consistent with the Mine Act, under the final rule, operators remain responsible for all violations; responsible operators should have policies in place to find and fix all violations and record them.
As stated in the proposed rule, the final rule will require that operators conduct more thorough examinations of underground coal mines. By requiring examinations for violations of health or safety standards in the final rule, miners will be better protected because mine operators will correct unsafe conditions before they result in hazardous conditions. Mine operators must identify hazards and violations of the nine standards, and record these and violations of other health or safety standards found during their examination in the examination records; the operator must assure that they are corrected. Under the final rule, however, operators are not required to
The mine operator is required by § 75.220(a)(1) to develop and follow a roof control plan and by § 75.370(a)(1) to develop and follow a mine ventilation plan approved by the District Manager. These plans are mine-specific and can sometimes be comprehensive and complex. MSHA expects that the operator will assure that the examiner should have broad knowledge of these plans.
Unlike the proposal, the final rule does not require operators to have examiners to look for violations of § 75.1725(a) related to mobile and stationary machinery and equipment (one of the most frequently cited standards). Many commenters opposed inclusion of this standard stating that it would require examiners to check permissibility, brakes, and electrical components. They stated that such tasks are beyond an examiner's knowledge and skills and that such tasks would consume most of the time allotted to conduct preshift examinations. In addition, they pointed out that other standards require the examination of mobile and stationary machinery and equipment and that adding a similar requirement to the preshift examination would be duplicative and unnecessary. Although § 75.1725(a) was part of the Rules to Live By I, available on MSHA's Web site at
In response to comments, the final rule does not include § 75.1725(a). MSHA's existing standards address the examination and maintenance of mobile and stationary machinery and equipment; this will provide necessary protection for miners.
Commenters who supported requiring operators to identify all violations stated that this would relieve examiners of the burden of determining whether a health or safety violation is hazardous at the time it is discovered, so that miners will be better protected. They added that the proposal would allow operators to learn about such conditions at an earlier time and abate the violations before they ever become hazardous. They stated that a requirement to identify and record all violations of health and safety standards instead of only those violations believed to be hazardous would simplify the examiner's task and make it more straightforward.
In response to these comments, the final rule requires operators to look for violations of nine safety or health standards which MSHA believes present unsafe conditions and risks to miners. Operators who examine for hazardous conditions and violations of the health or safety standards in the final rule will provide a safer workplace for their miners.
Some commenters were concerned that mine examiners would not be trained to recognize violations of all MSHA standards. Commenters stated that mine examiners are trained by state agencies, not MSHA, and none of the states require examinations to identify every condition that violates a standard. They pointed out that mine examiners are trained to recognize certain hazards. They were concerned that the proposal would require certified examiners to act as MSHA inspectors despite the lack of training on identifying violations of all health or safety standards.
As stated at the public hearings, operators are responsible under the Mine Act for finding and fixing violations of safety and health standards. Historically, MSHA accepted State certifications for mine examiners. The final rule addresses hazardous conditions required under the existing rule and violations of health or safety standards. Since violations of the nine standards generally relate to hazardous conditions covered by the existing rule, MSHA believes that the final rule will have only a minimal effect on states.
In response to questions from the MSHA Panel at the public hearings, some commenters provided information as to how they examine for violations of safety and health standards. The examinations in this final rule should represent only part of an operator's program for finding and fixing violations. Since this final rule requires examinations for hazards and violations of nine safety or health standards which present unsafe conditions and risks to miners, MSHA does not believe that there is a need for any additional requirement for training mine examiners. In addition, MSHA believes that the new requirement in § 75.363(e) (that the operator review with examiners on a quarterly basis all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required discussed elsewhere in the preamble), when conducted properly, provides examiners with necessary instruction to identify hazards and violations.
The final rule makes conforming changes to the existing requirement in § 75.360(a)(2) that allows pumpers, who are certified persons, to perform the preshift examination for themselves. Under the final rule, examinations conducted by pumpers must include hazardous conditions and violations of the nine standards. Like the existing rule, pumpers often work alone in remote areas of the mine. MSHA expects that the pumper would examine for hazardous conditions and violations of the nine standards. The pumper must record hazardous conditions and violations of the nine health or safety standards found during the preshift examination.
Some commenters addressed proposed § 75.360(e) that would permit the District Manager to require examinations in other areas of the mine for other hazards or violations of safety or health standards. Most of those commenters stated that this would add to the existing burden on both the District Managers and mine operators. Commenters were concerned that this would give the District Manager broad powers to dictate additional areas, other hazards, or violations to be examined by certified persons. Under the existing standard, the District Manager may require the certified person to examine other areas of the mine or examine for other hazards during the preshift examination.
It was the intent of Congress in the Mine Act and MSHA in the existing standard that the District Managers have the discretion to require additional examinations as necessary. MSHA's experience reveals that District Managers rarely exercise this discretion. Therefore, MSHA does not believe that this provision will result in additional costs. Consistent with the Mine Act, like the proposal, the final rule revises this provision to allow the District Manager to require additional examinations based on, among others, the violation history of the mine.
For example, if a mine is experiencing safety issues and violations due to obstructed walkways on the off side of the belt conveyor, it would be appropriate for the District Manager to require that the mine operator focus on this area. Most operators do not routinely examine the off side of the belt conveyor, but there are occasions when miners are required to work or travel on the off side, such as to align the belt, replace a roller, or remove accumulations. As another example, the District Manager may require a mine operator to verify that battery charging stations are adequately ventilated if a mine operator has received violations of § 75.340(a)(1)(i) for failure to ventilate battery charging stations with intake air that is directly coursed into a return air course or to the surface or with air that
A number of commenters were concerned about the recordkeeping requirements in proposed §§ 75.360(g), 75.363(a) and (b), and 75.364(h). Although commenters recognized the importance of recordkeeping, some were concerned that the proposal would increase recordkeeping dramatically.
MSHA understands that the final rule will increase recordkeeping requirements. The final rule requires that the operator focus on nine standards which present the greatest risks to miners in underground coal mines.
The final rule revises existing § 75.361(a) to require that the supplemental examination identify hazards and violations of nine standards to provide necessary protection for miners. As with the existing rule, operators cannot ignore violations of other standards seen during the examination. As discussed above, in response to comments, MSHA is adding language to make clear which violations operators are required to identify. The same language referencing these standards is also being added to the final requirements for preshift, on-shift, and weekly examinations.
The final rule revises existing § 75.362(a)(1) and (b) to require that the mine operators identify hazards and violations of the nine standards during any shift when anyone is assigned to work on the section and where mechanized mining equipment is being installed or removed. Like the existing rule, operators cannot ignore violations of other standards seen during the examination. As discussed above, in response to comments, the final rule clarifies that operators are required to look for violations of nine standards, in addition to hazards, while also recording and correcting violations of other standards when they see them.
The final rule revises existing § 75.363 to require the mine operator to post hazardous conditions, correct, and record hazardous conditions and violations of all health or safety standards found during preshift, supplemental, on-shift, and weekly examinations and record the corrective actions taken. The final rule also includes a new requirement in § 75.363(e) that the operator review with examiners, on a quarterly basis, all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. MSHA expects that, during the review, the operator and examiners would discuss the violations found since the previous review.
Some commenters were concerned about the recordkeeping requirements in proposed §§ 75.363(a) and (b) and 75.364(h); those comments were addressed above under the discussion of recordkeeping in § 75.360(g).
Commenters suggested that MSHA clarify what the Agency meant when it stated in the preamble that operators would have to correct violations within a reasonable time. They indicated that without such clarification, there could be a range of interpretations about what would be reasonable and whether this would be determined by the MSHA inspector or the company.
In the final rule, MSHA has not included a time frame for correcting violations but is relying on the Agency's historical practice related to mine operators' correction of violations. Consistent with its position in the preamble to the proposed rule, MSHA anticipates that operators will correct violations within a reasonable time period based on the conditions and circumstances at the mine. The mine operator is in the best position to determine the resources necessary to correct a violation including the time frame. If resources and personnel are available to correct a violation, the violation should be corrected at that time.
For example, a mine examiner is conducting an examination of a belt conveyor entry and identifies a broken roller as a violation. It is not generating any heat or sparks and, therefore, does not pose a hazard. To prevent the broken roller from becoming a potential fire hazard, the mine examiner removes the roller assembly. The mine examiner completes the examination of the belt conveyor entry and returns to the surface. The condition “damaged roller—needs replaced” is entered into the preshift examination book. The mine operator must order a new roller assembly, which will take two days to obtain and install. The mine operator places an order for the roller assembly and has the purchase order available for review by the inspector. The roller is ordered and replaced when it is received. In this particular example, the mine operator would not receive a citation.
Some commenters opposed proposed § 75.363(e), the requirement for quarterly reviews of citations and orders. They stated that quarterly meetings to review citations and orders with mine examiners are not needed because all citations are required to be posted in a conspicuous area. Other commenters supported the proposed requirement. They agreed that it makes sense to make mine examiners aware of citations, orders, and violations identified by inspectors in areas where examinations are required so the examiners can improve identification of recurring violations. Therefore, if citations and orders are being issued for violations other than the nine standards identified in the rule, the mine examiner will be better able to find and correct those violations as well.
MSHA believes that the final rule will result in continual improvement in the quality of mine examinations in underground coal mines and a greater level of protection for underground coal miners. The questions and discussions that arise during the quarterly reviews will educate operators and examiners and enhance their skills and knowledge.
The final rule revises the weekly examination standard to require operators to examine for hazards and violations of the nine standards to provide greater protection for miners. The operator must look for violations of the nine standards listed in the final rule, but also record and correct violations of other health or safety standards when they see them.
The weekly examination involving § 75.1403 will require operators to address maintenance of track haulage, off track haulage roadways, track switches, and other components for haulage. Since weekly examinations are required in worked out areas, bleeder entries, and air courses where equipment and conveyor belts are not typically installed, mine examiners are unlikely to encounter conditions related to § 75.1403—other safeguards, maintenance of travelways along belt conveyors; § 75.1722(a)—guarding moving machine parts; and § 75.1731(a)—maintenance of belt conveyor components.
The final rule includes conforming changes to require the identification, recording, and correcting of hazardous conditions and violations of the nine health or safety standards found during the weekly examinations.
MSHA has not prepared a separate regulatory economic analysis for this rulemaking. Rather, the analysis is presented below.
The final rule applies to all underground coal mines in the United States. The number of underground coal mines that MSHA used to estimate the cost of the final rule is the quarterly average of underground coal mines that reported employment underground at any time during 2010 regardless of production. Underground mines that only reported employment at the surface were not included since the examinations covered by this final rule are only performed when miners are working underground. The number of employees reflects the average underground employment at these mines for the year.
There are approximately 549 underground coal mines employing 51,706 miners, excluding office workers. Table 1 presents the number of underground coal mines and employment by mine size.
Underground coal mines produced an estimated 337 million short tons of coal in 2010. The average price of coal in underground mines in 2010 was $60.73 per short ton (Department of Energy (DOE), Energy Information Administration (EIA),
One of MSHA's primary goals with this rulemaking is to reduce violations of health or safety standards that occur in underground coal mines year after year. These violations ultimately lead to accidents, injuries, and illnesses. This section presents a summary of the potential benefits resulting from final rule changes to requirements for preshift, supplemental, on-shift, and weekly examinations in underground coal mines.
For informational purposes, MSHA provides estimates of monetized potential benefits of the final rule. Under the Mine Act, MSHA is not required to use monetized benefits or estimated net benefits as the basis for its decisions on standards designed to protect the health and safety of miners.
Based on the estimated prevention of 2.4 fatalities and 6.4 lost-time injuries per year, MSHA estimates that the final rule could result in monetized benefits of up to $21.3 million per year (2.4 × $8.7 million + 6.4 × $62,000). An explanation of the methodology MSHA relied upon to calculate the monetized benefits is presented towards the end of the benefits section.
To derive the estimated number of preventable injuries and fatalities used above, MSHA reviewed accident investigation reports from 2005 through 2009 where an inadequate examination of the underground work area contributed to the accident. MSHA further looked to see how many of those accidents involved, as a contributing factor, violations of nine standards cited by MSHA inspectors year after year.
Over the 5-year review period, there were 91 fatalities in underground coal mines. Of this total, the investigation reports for 15 of the fatalities (11 reports) specifically listed violations of the preshift, supplemental, on-shift, or weekly examinations standards as factors contributing to the accident. Although these fatalities involved conditions exposing risks to miners and violations of existing standards, the examiners did not perceive them as hazardous conditions. MSHA determined that only focusing on hazardous conditions would not provide effective safety for miners. Under the final rule, mine operators would be required to identify and correct these violations in addition to hazardous conditions.
Based on MSHA's review and the findings explained below, the final rule requires the examiner to identify and record, and the operator to correct, violations of the nine standards listed in the final rule that are found during preshift, supplemental, on-shift, or weekly examinations.
After analysis of the 15 fatalities, MSHA determined that nine of them involved violations of one or more of the health or safety standards listed in the final rule. MSHA concluded that, if these violations had been identified and corrected as required by the final rule, these nine fatalities, or approximately
MSHA also examined the fatal investigation reports that did not list violations of the preshift, supplemental, on-shift, or weekly examinations standards as contributing to the accident to determine if a violation of any of the nine standards in the final rule was listed as a contributing cause of the accident. Based on its review of these reports, MSHA determined that three additional fatalities could have been prevented by identifying violations of one or more of the nine standards and taking necessary corrective actions. Based on the frequency of the required examinations, MSHA believes that the examiner could have identified the violations during either the preshift or on-shift examination, triggering corrective action. Thus, MSHA estimates that the final rule could have prevented a total of up to 12 fatalities or 2.4 fatalities per year.
MSHA estimates that the final rule could have prevented 13 percent of the 91 fatalities that occurred in underground coal mines during the 5-year review period (12/91 fatalities). The fatal investigation reports for all 12 fatalities are included in the rulemaking docket at
In addition to reducing the number of fatalities, the final rule also could reduce the number of injuries. For the 5-year review period, 2005 through 2009, MSHA reviewed the descriptions of 75 accidents involving 90 nonfatal injuries where the citation or order listed an inadequate examination, or a violation of one or more of the nine standards in the final rule, or both, as a contributing cause of the accident. Based on this review and its experience in investigating accidents, MSHA determined that the final rule could have prevented 32 nonfatal injuries or approximately 6.4 nonfatal injuries per year (32 nonfatal injuries/5 years).
Violations of the standards listed in the final rule create unsafe conditions for underground coal miners and are directly linked to fatalities and injuries. The final rule includes a new requirement in § 75.363(e) that the operator review with examiners, on a quarterly basis, all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. This new requirement may provide qualitative benefits that increase over time.
MSHA expects that, during the review, the operator and examiners would discuss any hazards or violations found since the previous review. MSHA believes that the questions and discussions that arise during the quarterly reviews will educate and enhance the skills and knowledge of the operators and the examiners. This provision will promote a culture of safety, resulting in a continual improvement in the quality and effectiveness of mine examinations. This will ultimately lead to an overall improvement in compliance with health and safety standards at the mine, and provide a greater level of protection for underground coal miners. Furthermore, if the examinations and corrective actions are applied effectively, individual operators may see some reductions in the time and administrative staff associated with violations of mandatory health or safety standards.
Based on the nature of the standards in the final rule, MSHA believes that the final rule will also reduce respirable dust exposures in underground coal mines and reduce the incidence of black lung. According to a recent NIOSH report (2010), “[v]entilating air to a * * * mining section, whether blowing or exhausting, is the primary means of protecting workers from overexposure to respirable dust.” Mine examinations are critical to ensuring that all of the requirements in the mine ventilation plan, including the dust control plan, are in place and working. Examiners check section and outby ventilation controls and the respirable dust control parameters, which are key factors in reducing miners' exposure to respirable coal mine dust. The final rule will provide better identification and correction of violations of the ventilation standards. This, in turn, should lower miners' exposure to respirable coal mine dust, thereby lowering the incidence of black lung and other respiratory diseases. MSHA also is engaged in a separate rulemaking (RIN 1219–AB64, 75 FR 64412) that directly addresses miners' exposure to respirable coal mine dust. Due to lack of data, MSHA is unable to incrementally quantify the reduced incidence of disease attributable to this final rule alone.
MSHA based its estimates of the monetary values for the benefits on relevant literature. To estimate the monetary value of the reduction in fatalities, MSHA performed an analysis of the value of fatalities avoided based on a willingness-to-pay approach. This approach relies on the theory of compensating wage differentials in the labor market, (
Viscusi & Aldy (2003) conducted an analysis of studies that use a willingness-to-pay methodology to estimate the value of life-saving programs (
Although MSHA is using the Viscusi & Aldy (2003) study as the basis for monetizing the expected benefits of the final rule, the Agency does so with several reservations, given the methodological difficulties involved in estimating the compensating wage differentials (Hintermann, Alberini, and Markandya, 2008). Furthermore, these estimates pooled across different industries may not capture the unique circumstances faced by coal miners. For example, some have suggested that VSL models be disaggregated to account for different levels of risk, as might occur in coal mining (Sunstein, 2004). In addition, coal miners may have few employment options and in some cases only one employer (near-monopsony or monopsony), which may depress wages below those in a more competitive labor market.
MSHA recognizes that monetizing the VSL is difficult and involves uncertainty and imprecision. In the future, MSHA plans to work with other agencies to refine the approach taken in this final rule.
A number of commenters disputed MSHA's analysis of the 11 fatal accident investigation reports discussed in the benefits section of the preamble to the proposed rule. One of these commenters noted that the report does not say how the investigators determined that the violations were present during the mine examinations. Another said that their review of the accident reports led them to disagree with MSHA's conclusion that the fatal injuries would have been prevented by examinations that identified violations as well as hazards.
Another commenter who reviewed the fatality reports stated that their analysis led them to conclude that the
A number of commenters addressed the potential benefits that MSHA indicated would be achieved if the proposed provisions were made final. A commenter who supported the proposed provisions said that, in their entirety, the data reveal that some accidents and injuries could have been avoided if the examiners had reported violations of standards as well as hazardous conditions. Another stated that MSHA needed to be more specific as to what it wants and what benefits MSHA thinks will be gained from the regulation. Others were uncertain about the data and experience MSHA relied on for these calculations, and suspected that the calculations were hugely understated.
As explained above, MSHA used accident reports that specifically listed violations of nine standards to derive the estimated benefits of the final rule. While the Agency feels that these accident reports best represent the types of violations that lead to injuries and fatalities, MSHA realizes that operators may find and correct violations of standards that were not considered when the Agency estimated the potential benefits and as a result the benefits above may be understated.
In this regulatory economic analysis section, MSHA provides estimated potential benefits of the final rule. MSHA includes supporting data for its estimates of benefits and describes the methodology used to derive those benefits. MSHA also has included two links in the benefits section where interested parties can view the raw data-sets that the Agency relied on for the analysis and determination of the estimated benefits.
Table 3 below presents the summary of annual costs for all underground coal mine operators. MSHA's response to comments on the economic analysis in the proposed rule and a summary cost analysis for anthracite mines can be found at the end of this cost analysis section.
The annualized benefits are $21.3 million while the annualized costs are $17.0 million. The estimates remain unchanged between years so changing the time period or the discount rate results in the same values over time or rate changes.
As stated previously in the industry profile section, MSHA used the quarterly average of active mines (549) that reported underground employment to estimate the costs for preshift, supplementary and weekly examinations because these examinations are only performed when miners are working underground. To estimate the cost for the on-shift examination, MSHA used the quarterly average of active mines reporting production (424) because on-shift examinations are typically performed on production shifts. MSHA used a conservative approach in estimating costs and as a result the cost figures may be overstated. This update to the number of mines resulted in an increase in total costs but not at the same rate of increase. The net effect is that the cost per mine is lower in the final rule than was presented in the proposed rule.
Because the examinations covered by this final rule are only performed when miners are working underground MSHA limited the cost estimates to mines that reported underground employment. MSHA is aware that, because of changing conditions and differing production schedules, not every mine with underground employment will perform each of the examinations nor will every mine perform them year-round; however, for the purpose of estimating average yearly costs, MSHA has assumed that mines with underground employment will perform each of the examinations year-round.
For the purpose of this analysis, MSHA estimates that preshift and on-shift examinations would be conducted by a supervisory certified examiner (paid an hourly rate of $84.69, including benefits); and that the supplemental and weekly examinations would be conducted by non-supervisory certified examiners (paid an hourly rate of $36.92, including benefits). MSHA also estimates that—
• Mines with 1–19 employees operate one shift per day, 200 days per year;
• Mines with 20–500 employees operate two shifts per day, 300 days per year; and
• Mines with 501+ employees operate three shifts per day, 350 days per year.
Final § 75.360 requires examiners conducting preshift examinations to identify violations of nine standards, in addition to examining for hazards, and record all violations found along with the corrective actions taken. MSHA estimates that it will take an examiner an additional 30 minutes (0.5 hr) per preshift examination to identify and record these violations and the corrective actions taken. Although the final rule narrows the scope of the preshift examination, from requiring the examiner to identify violations of all standards to requiring the examiner to identify violations of nine standards, the time estimates for the proposal were based on violations of ten of the most frequently cited standards by MSHA inspectors. MSHA, therefore, is using the same estimate for additional
MSHA estimates that the additional time required for the preshift examinations will result in costs of approximately $11.3 million:
• $1.5 million in mines with 1–19 employees (172 mines × 1 exam/day × 200 days/yr × 0.5 hr × $84.69/hr);
• $9.3 million in mines with 20–500 employees (366 mines × 2 exams/day × 300 days/yr × 0.5 hr × $84.69/hr); and
• $500,000 in mines with 501+ employees (15 mines × 3 exams/day × 350 days/yr × 0.5 hr × $84.69/hr).
Final § 75.361 requires examiners conducting supplemental examinations to identify violations of nine standards, in addition to identifying hazards. MSHA estimates that it will take an examiner an additional 15 minutes (0.25 hr) to identify and record these violations and the corrective actions taken. Supplemental examinations are only performed in areas where a preshift examination has not been conducted. MSHA estimates that examiners would perform four supplemental examinations per year at mines with 1–19 employees and 24 supplemental examinations per year at mines with 20–500 employees and 501+ employees.
MSHA estimates that the additional time required for supplemental examinations will result in costs of approximately $90,000:
• $6,400 in mines with 1–19 employees (172 mines × 4 exams/mine × 0.25 hr/exam × $36.92/hr);
• $81,000 in mines with 20–500 employees (366 mines × 24 exams/mine × 0.25 hr/exam × $36.92/hr); and
• $2,400 in mines with 501+ employees (11 mines × 24 exams/mine × 0.25 hr/exam × $36.92/hr).
Final § 75.362 requires examiners conducting on-shift examinations to identify violations of nine standards, in addition to identifying hazards. MSHA estimates that it would take an examiner an additional 15 minutes (0.25 hr) to identify and record these violations and the corrective actions taken. Because on-shift examinations are performed during each production shift, MSHA used the quarterly average of active mines reporting production (424) to estimate the costs below.
MSHA estimates that the additional time required for on-shift examinations will result in estimated costs of approximately $4.8 million:
• $343,000 in mines with 1–19 employees (81 mines × 1 shift/day × 200 days/yr × 0.25 hr/shift × $84.69/hr);
• $4.2 million in mines with 20–500 employees (331 mines × 2 shifts/day × 300 days/yr × 0.25 hr/shift × $84.69/hr); and
• $267,000 in mines with 501+ employees (12 mines × 3 shifts/day × 350 days/yr × 0.25 hr/shift × $84.69/hr).
Final § 75.363(b) requires examiners to record all violations noted and the corrective actions taken for supplemental and on-shift examinations (preshift and weekly examinations have separate recordkeeping requirements and are not covered by this provision). The costs associated with this final requirement are included in cost estimates for final §§ 75.361 and 75.362 above.
Final § 75.363(e) is a new provision that requires the operator to review with mine examiners, on a quarterly basis, citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. MSHA estimates that 80 percent of underground coal mine operators currently discuss violations with examiners. Although some operators and examiners may meet less frequently and some more frequently, for costing purposes, MSHA assumes that these operators and examiners are meeting on a quarterly basis.
MSHA estimates that approximately 20 percent of mine operators do not currently discuss violations with examiners and would, therefore, incur new costs from this provision. MSHA estimates that 84 agents of the operators, 641 examiners for preshift and on-shift examinations, and 159 examiners for weekly and supplemental examinations would need to review the citations and orders as follows:
• 34 agents, 49 preshift and on-shift examiners, and 17 weekly and supplemental examiners in mines with 1–19 employees;
• 73 agents, 530 preshift and on-shift examiners, and 132 weekly and supplemental examiners in mines with 20–500 employees; and
• 2 agents, 62 preshift and on-shift examiners, and 10 weekly and supplemental examiners in mines with 501+ employees.
Examiners on preshift and on-shift exams are supervisory certified examiners earning an hourly wage of $84.69 and examiners on weekly and supplemental exams are non-supervisory certified examiners earning an hourly wage of $36.92. MSHA estimates the operator's agent conducting the review earns an hourly wage of $84.69.
MSHA estimates that these quarterly reviews will result in costs of approximately $548,000 per year:
• $31,000 in mines with 1–19 employees [(34 agents + 49 examiners) × $84.69/hr × 4 mtg × 1 hr/mtg] + [17 examiners × $36.92/hr × 4 mtg × 1 hr/mtg];
• $448,000 in mines with 20–500 employees [(73 agents + 530 examiners) × $84.69/hr × 4 mtg × 2 hr/mtg] + [132 examiners × $36.92/hr × 4 mtg × 2 hr/mtg]; and
• $69,000 in mines with 501+ employees [(2 agents + 62 examiners) × $84.69/hr × 4 mtg × 4 hr/mtg] + [10 examiners × $36.92/hr × 4 mtg × 4 hr/mtg].
Final § 75.364 requires operators to conduct examinations at least every 7 days to identify and record hazards and violations of nine health or safety standards.
MSHA estimates that it will take a certified examiner an additional 15 minutes (0.25 hr) to identify and record violations of standards and the corrective actions taken and that, on average, mines operate for 50 weeks per year.
The additional time required for weekly examinations for violations will result in costs of approximately $253,000 per year:
• $79,000 in mines with 1–19 employees (172 mines × 50 wk/yr × 0.25 hr/wk × $36.92/hr);
• $169,000 in mines with 20–500 employees (366 mines × 50 wk/yr × 0.25 hr/wk × $36.92/hr); and
• $5,000 in mines with 501+ employees (11 mines × 50 wk/yr × 0.25 hr/wk × $36.92/hr).
MSHA's cost estimates for recording corrective actions for hazards or violations found during preshift, supplemental, on-shift, and weekly examinations do not include costs for any corrective actions taken to eliminate the hazardous condition or comply with the health or safety standard identified during the mine examination. These compliance costs were included in the cost estimates associated with the existing standards and are not new
MSHA estimates that the final rule could prevent some accidents because mine operators will be required to take corrective actions earlier than under the existing standards,
A number of commenters were concerned that the final rule will force companies to hire additional personnel to meet the requirements of the proposed examinations provisions. One commenter pointed out that, if examiners were compelled to walk both sides of conveyor belts, it would require twice the time or two examiners for preshift examinations. Another stated that the cost of the proposed requirements are more than the cost analysis in the proposed rule shows, and provided detailed estimates for all four mine examinations. This commenter estimated that it would take an additional half-hour for a preshift examination per working section, and at their mine with three working sections, they would need an additional preshift examiner per shift. The commenter added that the mine is new, and examination times for short travel distances and belt lengths will increase as the mine develops.
In response to commenters, MSHA has narrowed the scope of the final rule from the proposal to match what MSHA originally intended and what was originally assumed in the analysis in the proposed rule. The final rule requires examiners to look for hazardous conditions and violations of nine standards. Under the final rule, MSHA intends that the examiner focus on those violations that present the most unsafe conditions. It is important to remind operators that, however, if examiners observe other violations, they remain obligated, as they are under the existing standards, to address these violations.
The existing rule requires that the preshift examination be conducted within 3 hours of the beginning of the oncoming shift, but most preshift examinations do not take the whole 3 hours. All the estimates of time, number of shifts, and working sections that MSHA uses in this cost section are the averages for all underground coal mines in a given size category and are not meant to be exact measurements for any individual mine.
As stated previously, MSHA does not intend that the final rule expand the examination to require additional tests or additional measurements, or to require examiners to open and examine equipment or boxes. MSHA expects the mine examiner to look for violations of these nine standards as they conduct their examinations and to complete the entire examination in the time allotted without the need for additional examiners.
In addition, several comments stated the need for a separate economic analysis of underground anthracite coal mines. One commenter indicated that the economic hardship on the anthracite underground mining community far exceeds the MSHA published figure of 0.43 percent of annual revenues for small mines with 1–19 employees and 0.12 percent for mines with 20–500 employees. The commenter provided several calculations to show that the economic impact on underground anthracite coal mines would be 36.1 percent of annual revenues for anthracite mines with 1–19 employees and 43.7 percent of annual revenues for anthracite mines with 20–500 employees.
In response to these comments, MSHA reviewed the commenter's calculations and found that, while the calculations used only revenues from anthracite mines, the cost estimates included the cost to all mines instead of the cost to anthracite mines only. Thus, the percentages of costs relative to revenues are overstated.
MSHA conducted a separate and more detailed analysis of the economic impact of the final rule on underground anthracite coal mines. Table 4 below summarizes industry data for underground anthracite coal mines.
Because anthracite mines are generally smaller than most bituminous mines and most violations of the standards in this final rule typically are not the types of conditions that are most cited found at underground anthracite underground mines, MSHA estimates that examination and recordkeeping times would be less for anthracite mines than the average used for all underground coal mines. After conducting this separate analysis with more accurate examination time estimates for anthracite mines, MSHA has determined that the cost of the final rule for anthracite mines will not exceed 1 percent of total anthracite coal mine revenues and will be economically feasible.
MSHA has included the results of the Agency's separate anthracite cost analysis for each provision in the final rule. Table 5 below presents the summary cost data for underground anthracite coal mines.
Taking the total cost to underground anthracite coal mines of $47,390 and dividing it by the total revenues in 2010 for underground anthracite coal mines of $8,251,300 the economic impact of the final rule to underground anthracite coal mines is 0.57 percent of total revenues ($47,390/$8.25 million).
MSHA has concluded that the requirements of the final rule are technologically and economically feasible. The existing regulations require mine operators to perform the examinations to identify hazardous conditions. The final rule expands the existing standards to require the mine examiner to identify violations of specific health or safety standards listed in the final rule.
MSHA concludes that the final rule is technologically feasible because it simply requires operators to identify, record, and correct violations of health or safety standards. There are no technology issues raised by the final rule.
MSHA concludes that the final rule is economically feasible. The U.S. underground coal mining sector produced an estimated 337 million short tons of coal in 2010. Multiplying the production by the 2010 price of underground coal of $60.73 per short ton yields estimated 2010 underground coal revenues of approximately $20.5 billion. MSHA estimated the yearly compliance cost of the final rule to be $17.0 million, which is 0.08 percent of revenues ($17.0 million/$20.5 billion) for underground coal mines. MSHA has traditionally used a revenue screening test—whether the yearly compliance costs of a regulation are less than 1 percent of revenues—to establish presumptively that compliance with the regulation is economically feasible for the mining community.
Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the final rule on small businesses. Based on its analysis, MSHA notified the Chief Counsel for Advocacy, Small Business Administration, and made the certification under the Regulatory Flexibility Act at 5 U.S.C. 605(b) that the final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is presented below.
Under the RFA, in analyzing the impact of the final rule on small entities, MSHA must use the Small Business Administration (SBA) definition for a small entity or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the
In addition to examining small entities as defined by SBA, MSHA has also looked at the impact of this final rule on underground coal mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, the cost of complying with the final rule and the impact of the final rule on small mines will also be different. It is for this reason that small mines are of special concern to MSHA.
MSHA initially evaluates the impact on “small entities” by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. When estimated compliance costs do not exceed 1 percent of the estimated revenues, the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, MSHA investigates whether a further analysis is required.
For underground coal mines, the estimated preliminary 2010 production was approximately 3.7 million tons for mines that had fewer than 20 employees and 251 million tons for mines that had 500 or fewer employees. Using the 2010 price of underground coal of $60.73 per short ton and total 2010 coal production in short tons, underground coal revenues are estimated to be approximately $224 million for mines employing fewer than 20 employees and $15.0 billion for mines employing 500 or fewer employees. The annual costs of the final rule for mines that have fewer than 20 employees is 0.86 percent ($1.9 million/$224 million) of annual revenues, and the annual costs of the final rule for mines that have 500 or fewer employees is 0.10 percent ($16.1 million/$15.2 billion) of annual revenues.
Using either MSHA's traditional definition of a small mine (one having fewer than 20 employees) or SBA's definition of a small mine (one having 500 or fewer employees), the yearly costs for underground coal mines to comply with the final rule will not exceed 1 percent of their estimated revenues. Accordingly, MSHA certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
This final rule contains changes that affect the burden in an existing paperwork package with OMB Control Number 1219–0088. The final rule also contains a new burden for information collection requirements, which is shown in Table 6. MSHA estimates that the final rule will result in approximately 15,478 burden hours with an associated cost of approximately $1.2 million annually. The change in the number of mines increased the burden hours and cost. However, the net effect per mine is a decrease from the proposed rule.
Many of the commenters were concerned that under the proposal, recordkeeping requirements would increase dramatically. One stated that the recordkeeping will require additional personnel on each shift, 7 days per week and, thus, add four people at an annual cost of $400,000 per mine with wages and benefits. MSHA estimated additional time for identifying, correcting, and recording violations of nine standards found during preshift, supplemental, on-shift, and weekly mine examinations. Out of the additional time for examining for violations, MSHA estimates that an average of 3 minutes (0.05 hr) will be for recording the violations found and the corrective actions taken. MSHA has determined that requiring examiners to look for violations of nine standards during required examinations and recording the violations found and corrective actions taken, will increase the burden on operators, but will not require additional examiners.
Final § 75.360 requires operators to record hazardous conditions and violations of standards found during the preshift examination and the corrective actions taken. MSHA estimates that it would take an examiner an average of 3 minutes (0.05 hr) out of the total additional time needed to perform the preshift examination to record the violations and any corrective actions taken. An examiner conducting a preshift examination earns a supervisory wage of $84.69 an hour (includes benefits). MSHA estimates that—
• Mines with 1–19 employees operate one shift per day, 200 days per year;
• Mines with 20–500 employees operate two shifts per day, 300 days per year; and
• Mines with 501+ employees operate three shifts per day, 350 days per year.
MSHA's estimates of underground coal operators' annual burden hours and burden hour costs for preshift examinations are presented below.
There are no other associated costs because the final rule adds to an existing system of recordkeeping.
Final § 75.363 requires operators to record any violations of mandatory health or safety standards found on supplemental and on-shift examinations and any corrective actions taken. The final preshift (§ 75.360) and weekly (§ 75.364) examinations have their own recordkeeping requirements. The final supplemental (§ 75.361) and on-shift (§ 75.362) standards contain new recordkeeping requirements if a violation of a mandatory health or safety standard is found. The recordkeeping for these final standards would be recorded under final § 75.363.
During FY 2005 through 2009, MSHA inspectors found an annual average of 22,062 violations of the 9 top cited standards MSHA believes are most likely to be identified on preshift, supplemental, on-shift, and weekly examinations (see Section IV). Because conditions resulting in these violations can occur and require corrective action multiple times during the year (e.g., insufficient rock dust), MSHA multiplied the 22,062 violations found by MSHA inspectors by a factor of 1.5 to arrive at an estimated 33,093 violations that could be found by mine examiners. MSHA assumes that half of these violations, 16,547 violations, would be identified on the preshift and weekly examinations and the other half would be identified on supplemental and on-shift examinations.
MSHA estimates that 80 percent of these violations (13,237 = 0.80 × 16,547) would be found on the on-shift examinations and 20 percent of these violations (3,309 = 0.80 × 16,547) would be found on the supplemental examinations. MSHA estimates that it would take 3 minutes (0.05 hrs.) to record any violations identified and the corrective actions taken. Supervisors earning $84.69 an hour perform on-shift exams and certified examiners earning $36.92 perform supplemental exams.
MSHA's estimates of underground coal operators' annual burden hours and related costs are presented below.
Final § 75.364 requires operators to conduct examinations every 7 days and record hazardous conditions and violations of standards found and corrective actions taken. MSHA estimates that it will take a certified examiner approximately 3 minutes (0.05 hr) out of the total time needed to conduct the examination to record the violations found and corrective actions taken. An examiner conducting these weekly examinations earns a non-supervisory wage of $36.92 an hour (includes benefits). MSHA also estimates that, on average, mines operate for 50 weeks per year.
MSHA's estimates of underground coal operators' annual burden hours and related costs for weekly examinations are presented below.
There are no other associated costs because the final rule adds to an existing system of recordkeeping.
The information collection package for this final rule was submitted to OMB for review under 44 U.S.C. 3504, paragraph (h) of the Paperwork Reduction Act of 1995, as amended. MSHA requested comment on its estimates for information collection requirements in the proposal and responded to these comments in the final rule. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.
The Department will, concurrent with publication of this rule, submit the information collections contained in this final rule for review under the PRA to the OMB, as part of a revision to Control Number 1219–0088. The Department will publish an additional Notice to announce OMB's action on the request and when the information collection requirements will take effect. The regulated community is not required to respond to any collection of information unless it displays a current, valid, OMB control number. MSHA displays the OMB control numbers for the information collection requirements in its regulations in 30 CFR part 3.
MSHA has reviewed the final rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
This final rule does not have “federalism implications” because it will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Accordingly, under E.O. 13132, no further Agency action or analysis is required.
One commenter stated that they disagreed with MSHA's finding regarding E.O. 13132, that the proposed rule would not have `federalism implications' or a `substantial direct effect' on states. The commenter said that the rule would have real implications for states, with potentially substantial costs associated with training and certification. Historically, MSHA accepted state certifications for mine examiners. The final rule addresses hazardous conditions required under the existing rule and violations of health or safety standards. Since violations of the nine standards generally relate to hazardous conditions covered by the existing rule, MSHA believes that the final rule will have only a minimal effect on states. It is currently the responsibility of the mine operator to correct any violation of a health or safety standard. Based on Agency experience, MSHA does not anticipate that requiring examiners on preshift, supplemental, on-shift, and weekly examinations to look for and identify violations of the nine standards in the final rule will affect training and certification done by the states.
Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that this final rule will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. This final rule impacts only the underground coal mine industry. Accordingly, MSHA certifies that this final rule would not impact family well-being.
This final rule does not implement a policy with takings implications. Accordingly, under E.O. 12630, no further Agency action or analysis is required.
This final rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. Accordingly, this final rule will meet the applicable standards provided in section 3 of E.O. 12988, Civil Justice Reform.
This final rule will have no adverse impact on children. Accordingly, under E.O. 13045, no further Agency action or analysis is required.
This final rule does not have “tribal implications” because it will not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” Accordingly, under E.O. 13175, no further Agency action or analysis is required.
Executive Order 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action that adversely affects energy supply, distribution or use. MSHA has reviewed this final rule for its energy effects because the final rule applies to the underground coal mining sector. Because this final rule will result in yearly costs of approximately $17.0 million to the underground coal mining industry, relative to annual revenues of $18.8 billion in 2010, MSHA has concluded that it is not a significant energy action because it is not likely to have a
MSHA has reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined and certified that the final rule does not have a significant economic impact on a substantial number of small entities.
Mine safety and health, Underground coal mines, Ventilation.
For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977 as amended, chapter I of title 30, part 75 of the Code of Federal Regulations is amended as follows:
30 U.S.C. 811, 863.
(a) * * *
(2) Preshift examinations of areas where pumpers are scheduled to work or travel shall not be required prior to the pumper entering the areas if the pumper is a certified person and the pumper conducts an examination for hazardous conditions and violations of the mandatory health or safety standards referenced in paragraph (b)(11) of this section, tests for methane and oxygen deficiency, and determines if the air is moving in its proper direction in the area where the pumper works or travels. The examination of the area must be completed before the pumper performs any other work. A record of all hazardous conditions and violations of the mandatory health or safety standards found by the pumper shall be made and retained in accordance with § 75.363 of this part.
(b) The person conducting the preshift examination shall examine for hazardous conditions and violations of the mandatory health or safety standards referenced in paragraph (b)(11) of this section, test for methane and oxygen deficiency, and determine if the air is moving in its proper direction at the following locations:
(11) Preshift examinations shall include examinations to identify violations of the standards listed below:
(i) §§ 75.202(a) and 75.220(a)(1)—roof control;
(ii) §§ 75.333(h) and 75.370(a)(1)—ventilation, methane;
(iii) §§ 75.400 and 75.403—accumulations of combustible materials and application of rock dust;
(iv) § 75.1403—other safeguards, limited to maintenance of travelways along belt conveyors, off track haulage roadways, and track haulage, track switches, and other components for haulage;
(v) § 75.1722(a)—guarding moving machine parts; and
(vi) § 75.1731(a)—maintenance of belt conveyor components.
(e) The district manager may require the operator to examine other areas of the mine or examine for other hazards and violations of other mandatory health or safety standards found during the preshift examination.
(g)
(a)(1) Except for certified persons conducting examinations required by this subpart, within 3 hours before anyone enters an area in which a preshift examination has not been made for that shift, a certified person shall examine the area for hazardous conditions and violations of the mandatory health or safety standards referenced in paragraph (a)(2) of this section, determine whether the air is traveling in its proper direction and at
(2) Supplemental examinations shall include examinations to identify violations of the standards listed below:
(i) §§ 75.202(a) and 75.220(a)(1)—roof control;
(ii) §§ 75.333(h) and 75.370(a)(1)—ventilation, methane;
(iii) §§ 75.400 and 75.403—accumulations of combustible materials and application of rock dust;
(iv) § 75.1403—other safeguards, limited to maintenance of travelways along belt conveyors, off track haulage roadways, and track haulage, track switches, and other components for haulage;
(v) § 75.1722(a)—guarding moving machine parts; and
(vi) § 75.1731(a)—maintenance of belt conveyor components.
(a)(1) At least once during each shift, or more often if necessary for safety, a certified person designated by the operator shall conduct an on-shift examination of each section where anyone is assigned to work during the shift and any area where mechanized mining equipment is being installed or removed during the shift. The certified person shall check for hazardous conditions and violations of the mandatory health or safety standards referenced in paragraph (a)(3) of this section, test for methane and oxygen deficiency, and determine if the air is moving in its proper direction.
(3) On-shift examinations shall include examinations to identify violations of the standards listed below:
(i) §§ 75.202(a) and 75.220(a)(1)—roof control;
(ii) §§ 75.333(h) and 75.370(a)(1)—ventilation, methane;
(iii) §§ 75.400 and 75.403—accumulations of combustible materials and application of rock dust;
(iv) § 75.1403—other safeguards, limited to maintenance of travelways along belt conveyors, off track haulage roadways, and track haulage, track switches, and other components for haulage;
(v) § 75.1722(a)—guarding moving machine parts; and
(vi) § 75.1731(a)—maintenance of belt conveyor components.
(b) During each shift that coal is produced, a certified person shall examine for hazardous conditions and violations of the mandatory health or safety standards referenced in paragraph (a)(3) of this section along each belt conveyor haulageway where a belt conveyor is operated. This examination may be conducted at the same time as the preshift examination of belt conveyors and belt conveyor haulageways, if the examination is conducted within 3 hours before the oncoming shift.
(a) Any hazardous condition found by the mine foreman or equivalent mine official, assistant mine foreman or equivalent mine official, or other certified persons designated by the operator for the purposes of conducting examinations under this subpart D, shall be posted with a conspicuous danger sign where anyone entering the areas would pass. A hazardous condition shall be corrected immediately or the area shall remain posted until the hazardous condition is corrected. If the condition creates an imminent danger, everyone except those persons referred to in section 104(c) of the Act shall be withdrawn from the area affected to a safe area until the hazardous condition is corrected. Only persons designated by the operator to correct or evaluate the hazardous condition may enter the posted area. Any violation of a mandatory health or safety standard found during a preshift, supplemental, on-shift, or weekly examination shall be corrected.
(b) A record shall be made of any hazardous condition and any violation of the nine mandatory health or safety standards found by the mine examiner. This record shall be kept in a book maintained for this purpose on the surface at the mine. The record shall be made by the completion of the shift on which the hazardous condition or violation of the nine mandatory health or safety standards is found and shall include the nature and location of the hazardous condition or violation and the corrective action taken. This record shall not be required for shifts when no hazardous conditions or violations of the nine mandatory health or safety standards are found.
(e)
(b)
(8) Weekly examinations shall include examinations to identify violations of the standards listed below:
(i) §§ 75.202(a) and 75.220(a)(1)—roof control;
(ii) §§ 75.333(h) and 75.370(a)(1)—ventilation, methane;
(iii) §§ 75.400 and 75.403—accumulations of combustible materials and application of rock dust; and
(iv) § 75.1403—maintenance of off track haulage roadways, and track haulage, track switches, and other components for haulage;
(v) § 75.1722(a)—guarding moving machine parts; and
(vi) § 75.1731(a)—maintenance of belt conveyor components.
(d) Hazardous conditions shall be corrected immediately. If the condition creates an imminent danger, everyone except those persons referred to in section 104(c) of the Act shall be withdrawn from the area affected to a safe area until the hazardous condition is corrected. Any violation of the nine mandatory health or safety standards found during a weekly examination shall be corrected.
(h)
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Rock Island Railroad and Highway Drawbridge across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois. The deviation is necessary to allow the Quad Cities Live Uncommon Walk to cross the bridge. This deviation allows the bridge to be maintained in the closed-to-navigation position for two hours.
This deviation is effective from 8:30 p.m. to 10:30 p.m. on June 2, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0165 and are available online by going to
If you have questions on this rule, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone (314) 269–2378, email
The U.S. Army Rock Island Arsenal requested a temporary deviation for the Rock Island Railroad and Highway Drawbridge, across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois to remain in the closed-to-navigation position for a two-hour period from 8:30 p.m. to 10:30 p.m., June 2, 2012, while a walk is held between the cities of Davenport, IA and Rock Island, IL. The Rock Island Railroad and Highway Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that drawbridges shall open promptly and fully for the passage of vessels when a request to open is given in accordance with the subpart.
There are no alternate routes for vessels transiting this section of the Upper Mississippi River.
The Rock Island Railroad and Highway Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 23.8 feet above normal pool. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This temporary deviation has been coordinated with waterway users. No objections were received.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Final rule.
The Coast Guard is changing the regulations that govern the operation of the S189 Bridge over Blackwater River, mile 9.2, at South Quay, VA. The new rule will change the current regulation requiring a 24-hour advance notice and allow the bridge to remain in the closed position for the passage of vessels. There have been no requests for openings in 11 years.
This rule is effective May 7, 2012.
Comments and related materials received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG–2011–0943 and are available by going to
If you have questions on this rule, call or email Jim Rousseau, Bridge Management Specialist, Coast Guard; telephone 757–398–6557, email
On December 8, 2011, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Blackwater River, South Quay, VA in the
Virginia Department of Transportation has requested a change in the operation regulation of the S189 Bridge across Blackwater River, mile 9.2, at South Quay VA. There has been no request for openings since the year 2000. The only industrial waterway user to request openings left the area in 2000. Since 2008 up to the present day, the average daily vehicular count is approximately 2,930. The Coast Guard will allow the above mentioned bridge to remain in the closed to navigation position in accordance with 33 CFR 117.39.
The vertical clearance of the Swing Bridge is 14 feet above mean high tide in the closed position and unlimited in the open position. The current operating schedule for the bridge is set out in 33 CFR 117.999. The current 24 hour advance notice is no longer necessary because of the lack of openings.
The Coast Guard will revise 33 CFR 117.999 for the S189 Bridge over Blackwater River, mile 9.2, at South Quay, VA. The current regulation states: The draw of the S189 bridge, mile 9.2 at South Quay, shall open on signal if at least 24 hours notice is given. The new regulation would allow the bridge to not open for the passage of vessels. The change of the operating regulation will reflect the current use of the waterway. Pursuant to the NPRM, there was a comment period of 60 days and no comments were received.
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, 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. The Office of Management and Budget has not reviewed it under that Order. The change is expected to have minimal impact on mariners, because there have been no requests for openings for the past 11 years, and there is no anticipated change to vessel traffic.
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 action will not have a significant economic impact on a substantial number of small entities for the following reasons: There have been no vessel requests for openings for the past 11 years. Vessels that can safely transit under the bridge may do so at any time. Before the effective period, we will issue maritime advisories widely available to users of the river.
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.
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 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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
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
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 guides 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 because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05–1; and Department of Homeland Security Delegation No. 0170.1.
The draw of the S189 bridge, mile 9.2 at South Quay, need not be opened for the passage of vessels.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Broadway Bridge across the Willamette River, mile 11.7, at Portland, OR. This deviation is necessary to accommodate the Bridge to Brews foot race scheduled for April 15, 2012. This deviation allows the bridge to remain in the closed position to allow safe movement of event participants.
This deviation is effective from 8 a.m. on April 15, 2012 through 11:15 a.m. April 15, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0217 and are available online by going to
If you have questions on this rule, call or email the Bridge Administrator, Coast Guard Thirteenth District; telephone 206–220–7282 email
Multnomah County has requested that the Broadway Bascule Bridge remain closed to vessel traffic to facilitate safe, uninterrupted roadway passage of participants of the Bridge to Brews event. The Bridge to Brews event is an annual 8–10K footrace held in Portland, OR. The race course passes over the Broadway Bridge. The Broadway Bridge crosses the Willamette River at mile 11.7 and provides 90 feet of vertical clearance above Columbia River Datum 0.0 while in the closed position. Vessels which do not require a bridge opening may continue to transit beneath the bridge during this closure period. Under normal conditions this bridge operates in accordance with 33 CFR 117.897 which allows for the bridge to remain closed between 7 a.m. and 9 a.m. and 4 p.m. and 6 p.m. Monday through Friday and also requires advance notification when a bridge opening is needed. This deviation period is from 8 a.m. on April 15, 2012 through 11:15 a.m. April 15, 2012. The deviation allows the bascule span of the Broadway Bridge across the Willamette River, mile 11.7, to remain in the closed position and need not open for maritime traffic from 8 a.m. through 11:15 a.m. on April 15, 2012. The bridge shall operate in accordance to 33 CFR 117.897 at all other times. Waterway usage on this stretch of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Mariners will be notified and kept informed of the bridge's operational status via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. The draw span will be required to open, if needed, for vessels engaged in emergency response operations during this closure period.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Coast Guard has issued a temporary deviation from the operating regulation that governs the Isleton Drawbridge across Sacramento River, mile 18.7, at Isleton, CA. The deviation is necessary to allow California Department of Transportation to paint and perform routine maintenance on the drawbridge. This deviation allows
This deviation is effective from 7 a.m., April 20, 2012, to 6 p.m. on June 18, 2012.
Documents mentioned in this preamble as being available in the docket are part of the docket USCG–2012–0230 and are available online by going to
If you have questions on this rule, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510–437–3516, email
The California Department of Transportation has requested a temporary change to the operation of the Isleton Drawbridge, mile 18.7, over Sacramento River, at Isleton, CA. The drawbridge navigation span provides a vertical clearance of 15 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given to the drawtender at the Rio Vista bridge across the Sacramento River, mile 12.8, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.
Either leaf of the double bascule drawspan may be secured in the closed-to-navigation position from 7 a.m., April 20, 2012 to 6 p.m. on June 18, 2012, to allow Caltrans to conduct painting and maintenance on the bridge. The opposite leaf will continue to operate normally, providing unlimited vertical clearance and 83 feet horizontal clearance between leafs. A work platform will be installed below the secured leaf, reducing vertical clearance by 6 feet. This temporary deviation has been coordinated with waterway users. No objections to the proposed temporary deviation were raised.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the waters of Matlacha Pass in the vicinity of the Matlacha Bridge in Matlacha, Florida. The safety zone will be enforced during construction of the Matlacha Bridge from Monday, March 12, 2012 through Tuesday, April 10, 2012. The safety zone is necessary to protect life and property on navigable waters of the United States during the Matlacha Bridge construction. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port St. Petersburg or a designated representative.
This rule is effective from 7 a.m. on March 12, 2012 through 7 p.m. on April 10, 2012. This rule will be enforced daily from 7 a.m. until 7 p.m. on March 12, 2012 through April 10, 2012.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2012–0037 and are available online by going to
If you have questions on this temporary final rule, call or email Marine Science Technician First Class Nolan L. Ammons, Sector St. Petersburg Prevention Department, Coast Guard; telephone 813–228–2191, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive notice of this stage of the Matlacha Bridge construction until February 6, 2012. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to construction operations to install the new bascule leaf on the Matlacha Bridge. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the public during the bridge construction.
For the same reason discussed above, under 5 U.S.C. 553(d)(3) the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 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; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
The purpose of the rule is to protect life and property on navigable waters of the United States during the Matlacha Bridge construction.
From Monday, March 12, 2012 through Tuesday, April 10, 2012, Archer Western Contractors, Ltd., Inc. will be installing a new bascule leaf on the Matlacha Bridge in Matlacha, Florida. The bascule leaf installation will require a barge to be placed between the fender system at the Matlacha Bridge, thereby closing the Matlacha Pass channel to marine traffic. The construction poses a danger to mariners located in or transiting the area.
The safety zone encompasses certain waters of Matlacha Pass in the vicinity of the Matlacha Bridge in Matlacha, Florida. The safety zone will be in effect during the installation of the bascule leaf, which is scheduled to take place between March 12, 2012 and April 10, 2012. At this time the Coast Guard does not know the exact hours of construction. However, prior to each enforcement period, the Coast Guard will provide notice by publication in the local notice to mariners and via broadcast notice to mariners. On-scene notice will also be provided by the Coast Guard or local law enforcement.
Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port St. Petersburg or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port St. Petersburg by telephone at 727–824–7524, 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 safety zone is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
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.
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, 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 rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866.
The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for 12 hours per day for a total of 29 days; (2) vessel traffic in the area is expected to be minimal during the enforcement periods; (3) the barge placed in the main channel will be able to move with 12 hours advance notice; (4) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement periods; (5) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone during the enforcement periods if authorized by the Captain of the Port St. Petersburg or a designated representative; and (6) the Coast Guard will provide advance notification of the safety zone to the local maritime community by 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 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 Matlacha Pass encompassed within the safety zone between 7 a.m. and 7 p.m. from March 12, 2012 through April 10, 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.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offer to assist small entities in understanding the rule so that they can 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 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 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. This rule involves establishing a temporary safety zone that will be enforced 12 hours per day for a total of 29 days. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
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. 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; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port St. Petersburg by telephone at 727–824–7524, 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 area is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative.
(3) The regulated area will only be enforced during the installation of the new bascule leaf requiring the placement of a barge within the main channel.
(4) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Environmental Protection Agency (EPA).
Final rule.
This regulation amends an exemption from the requirement of a tolerance for residues of 2-ethyl-1-hexanol (CAS no. 104–76–7) to increase the maximum use level for residues from 2.5% to 10% in final pesticide formulations, when used as an inert ingredient as a cosolvent, defoamer, solvent in pesticide formulations, inert ingredients used pre- and post-harvest, and inert ingredients applied to animals. Cognis submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an amendment to the existing exemption for 2-ethyl-1-hexanol.
This regulation is effective April 6, 2012. Objections and requests for hearings must be received on or before June 5, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2011–0604. All documents in the docket are listed in the docket index available at
Janet Whitehurst, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–6129; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2011–0604 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 5, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2011–0604, by one of the following methods:
•
•
•
In the
Based upon review of the data supporting the petition, EPA has increased the maximum use limit for 2-ethyl-1-hexanol under 40 CFR 180.910 and 180.930 to 10% and not 20% as requested by the petitioner due to aggregate risk concern. This limitation is based on the Agency's risk assessment which can be found at
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for 2-ethyl-1-hexanol including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with 2-ethyl-1-hexanol follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by 2-ethyl-1-hexanol as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit. The available toxicity studies for 2-ethyl-1-hexanol are summarized in detail in the Decision Document for Petition Number 1E7893: “2-Ethylhexanol; Human Health Risk Assessment and Ecological Effects Assessment for Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations.”
The Agency has determined that 2-ethyl-1-hexanol is of low acute toxicity by the oral and dermal routes. Studies in rats and mice have LD
All the studies show that repeated exposure to 2-ethyl-1-hexanol has low potential for toxicity. The major target organ for 2-ethyl-1-hexanol is the liver with peroxisome proliferation as the major hepatic endpoint. The lowest NOAEL was observed in rats at 100 mg/kg/day based on liver weights and liver peroxisomes at the LOAEL of 320 mg/kg/day. No neurotoxic effects, even at high doses, were observed in the subchronic or chronic studies, so there is no reason to assume 2-ethyl-1-hexanol has neurotoxic potential.
Numerous genotoxicity studies have been conducted with 2-ethyl-1-hexanol, including five Ames tests, an
Carcinogenicity studies in both rats and mice were conducted. In the mouse study, male and female mice were gavaged with 2-ethyl-1-hexanol at doses of 0, 50, 200 or 750 mg/kg/day for 18 months. No substance-related changes were seen at 50 or 200 mg/kg/day. At 750 mg/kg/day, reduced body weight gain related to decreased food consumption and increased mortality was noted. Treatment-related hematological changes were seen, and slight but not statistically significant increases were noted in focal hyperplasia of the epithelium of the forestomach. No statistically significant increases in tumor incidence were noted in mice. In the rat study, male and female rats were gavaged five days/week for 24 months at 0, 50, 150 or 500 mg/kg/day. Dose-related reduced body weight gain was noted at 150 mg/kg/day and higher. Clinical findings included poor general condition, labored breathing, and piloerection. Increased mortality occurred in females at 500 mg/kg/day. No increase in tumor incidence was noted. Based on the results of the rat and mice studies and lack of mutagenicity concerns, it can be reasonably concluded that 2-ethyl-1-hexanol is not likely to be carcinogenic.
Developmental toxicity studies have been performed with 2-ethyl-1-hexanol; and a reproductive study has been performed using diethylhexyl adipate (DEHA) that readily metabolizes to 2-ethyl-1-hexanol in mammals. EPA concluded that none of the studies
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
Several subchronic, chronic/carcinogenicity studies are available for 2-ethyl-1-hexanol. No endpoint of concern for acute exposure was identified in the available database. The NOAEL, from the carcinogenicity study in rat was 50 mg/kg/day based on dose-related reduced body weights at the LOAEL of 450 mg/kg/day. The chronic RfD is 0.5 mg/kg/day using a hundredfold uncertainty factor (10X intraspecies and 10X interspecies variation). The population adjusted dose is equal to chronic RfD (0.5 mg/kg/day) since the FQPA factor is reduced from 10X to 1X. This endpoint of concern was used for all exposure durations in order to be conservative in the risk assessment.
1.
Implicit in this assumption is that there would be similar rates of degradation between the active and inert ingredient (if any) and that the concentration of inert ingredient in the scenarios leading to these highest of tolerances would be no higher than the concentration of the active ingredient. The model assumes 100 percent crop treated (PCT) for all crops (every food eaten by a person each day has tolerance-level residues).
2.
3.
There are no current residential uses known to the Agency and thus no residential exposures are expected. Therefore, a residential exposure assessment was not conducted.
4.
EPA has not found 2-ethyl-1-hexanol to share a common mechanism of toxicity with any other substances, and 2-ethyl-1-hexanol does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2-ethyl-1-hexanol does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for 2-ethyl-1-hexanol includes several subchronic, chronic/carcinogenicity studies, mutagenicity studies, metabolism studies, and developmental studies. No two generation reproduction study is available in the database for 2-ethylhexanol, however, no effects on sperm and other reproductive parameters were observed in rats at doses up to 1,080 mg/kg/day when fed on diets containing diethylhexyl adipate (DEHA). In mammals, DEHA is readily metabolized to 2-ethylhexanol.
ii. There is no indication that 2-ethyl-1-hexanol is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity. No neurotoxicity studies are available in the database, however, no clinical signs of neurotoxicity were observed in the available subchronic and chronic studies. Therefore, the developmental neurotoxicity study is not necessary at this time.
iii. No immunotoxicity study is available, however, there were no effects on the thymus or spleen indicated in the available database. Therefore, an immunotoxicity study is not required.
iv. There is no evidence that 2-ethyl-1-hexanol results in increased susceptibility in
v. There are no residual uncertainties identified in the exposure databases. The food and drinking water assessment is not likely to underestimate exposure to any subpopulation, including those comprised of infants and children. The food exposure assessments are considered to be highly conservative as they are based on the use of the highest tolerance level from the surrogate pesticides for every food and 100% crop treated is assumed for all crops. EPA also made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to 2-ethyl-1-hexanol in drinking water. These assessments will not underestimate the exposure and risks posed by 2-ethyl-1-hexanol.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
4.
An intermediate-term adverse effect was identified; however, 2-ethyl-1-hexanol is not currently used as an inert ingredient in pesticide products that are registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for 2-ethyl-1-hexanol.
5.
6.
An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of 2-ethyl-1-hexanol in or on any food commodities. EPA is establishing a limitation on the amount of 2-ethyl-1-hexanol that may be used in pesticide formulations. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nation Food and Agriculture Organization/World Health
The Codex has not established a MRL for 2-ethyl-1-hexanol.
Therefore, the exemptions from the requirement of a tolerance for 2-ethyl-1-hexanol (CAS Reg. No. 104–76–7) at 40 CFR 180.910 and 180.930 are amended to increase the maximum use level from 2.5% to 10% in final pesticide formulations.
This final rule amends an exemption from the requirement for a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
In rule document 2011–33772 appearing on pages 423–425 in the issue of Thursday, January 5, 2012 make the following correction:
On page 425, in the table, in the column “Chief executive officer of community”, on the 10th line, “Mr. Robert Hyatt Davidson, County Manager” should read “Mr. Robert Hyatt, Davidson County Manager”.
In rule document 2011–25157 appearing on pages 60748–60751 in the issue of Friday, September 30, 2011, make the following corrections:
1. In the table appearing on page 60750, in the column titled “Chief executive officer of the community”, the eighth entry from the bottom of the page, “199 Town Center, Parkway Spring Hill, TN 37174” should read “199 Town Center Parkway, Spring Hill, TN 37174”.
2. In the table appearing on page 60750, the last entry in the column titled “Chief executive officer of the community”, “301 West 2nd Street, 2nd Floor Austin, Texas 78701” should read “301 West 2nd Street, 2nd Floor, Austin, Texas 78701”.
Coast Guard, DHS.
Direct final rule; withdrawal.
The Coast Guard is withdrawing its direct final rule published on December 14, 2011. The direct final rule notified the public of the Coast Guard's intent to revise regulations for the inspection and certification of seagoing barges to align with the language of the applicable statutes. We are withdrawing that rule because we received two adverse comments. That rule will not become effective as scheduled. Instead, we plan to consider these issues in a notice of proposed rulemaking.
The direct final rule published December 14, 2011, (76 FR 77712), is withdrawn on April 6, 2012.
The docket for this withdrawn rulemaking is 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 about this notice, call or email Mr. Ken Smith, U.S. Coast Guard, telephone 202–372–1413, email
On December 14, 2011, we published a direct final rule entitled “Seagoing Barges” in the
In 1983, section 2101(32), Public Law 98–89, 97 Stat. 500 (46 U.S.C. 2101) redefined “seagoing barge” as a non self-propelled vessel of at least 100 gross tons making voyages beyond the Boundary Line. Coast Guard regulations at 46 CFR 91.01–10(c) do not reflect the language change and instead refer to seagoing barges as vessels “on the high seas or ocean.” The withdrawn rule would have changed the language in 46 CFR 91.01–10 from “on the high seas or ocean” to “beyond the Boundary Line” to reflect the language of Public Law 98–89.
In 1993, Congress exempted from inspection seagoing barges that are unmanned and (1) not carrying hazardous material as cargo, or (2) carrying a flammable or combustible liquid, including oil, in bulk. (
We published the withdrawn rule as a direct final rule under 33 CFR 1.05–55 because we considered the rule to be noncontroversial and therefore did not expect any adverse comments. In the direct final rule, we notified the public of our intent to make the rule effective on April 12, 2012, unless an adverse comment or notice of intent to submit an adverse comment was received on or before February 13, 2012.
We received two submissions from the same commenter during the comment period, and we determined that both are adverse comments, as explained below. As such, we are withdrawing the direct final rule. We plan to consider the issues raised in the adverse comments in a notice of proposed rulemaking.
We received two comments in response to the direct final rule. In the first comment, the commenter stated that without a definition of the term “oil in bulk,” the rule would be ineffective. In the second comment, the commenter stated that without a definition of the term “manned,” the rule would be ineffective. In the direct final rule, we explained that a comment is considered adverse if the commenter explains why this rule or part of this rule would be inappropriate, including a challenge to its underlying premise or approach, or would be ineffective or unacceptable without a change. We have determined that both comments received are adverse comments.
In the first comment, the commenter expressed concern that, without a definition of “in bulk,” the rule does not make it clear whether a barge that carries flammable or combustible liquids, including oil, in bulk for use by the vessel and not as cargo, is exempt from inspection and certification. Furthermore, the commenter asked at what quantity of such flammable or combustible liquid carried in bulk is the barge no longer considered exempt under the rule. The commenter also expressed concern that without a definition of “in bulk,” barges that carry flammable or combustible liquid, including oil, in bulk as cargo would be subject to inspection regardless of how small the quantity.
In the second comment, the commenter requested a definition for the term “manned,” and stated that without such a definition, the rule would be ineffective. The commenter was concerned that there are times when barges that do not require manning to operate have personnel on board to prepare the barges for transfer and off-load, and that without a definition in the rule, it is not clear whether barges with personnel permissively on board require inspection or are exempt.
We issue this notice of withdrawal under the authority of 33 U.S.C. 494, 502, 525, 33 CFR 1.05–55, and Department of Homeland Security Delegation No. 0170.1.
Because we consider these comments to be adverse, we are withdrawing the direct final rule. We plan to seek comment on these concerns in a forthcoming notice of proposed rulemaking.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This action approves Framework Adjustment 23 to the Atlantic Sea Scallop Fishery Management Plan (Framework 23) and implements its measures. Framework 23 was developed and adopted by the New England Fishery Management Council and includes measures to: Minimize impacts on sea turtles through the requirement of a turtle deflector dredge; improve the effectiveness of the scallop fishery's accountability measures related to the yellowtail flounder annual catch limits; adjust the limited access general category Northern Gulf of Maine management program; and modify the scallop vessel monitoring system trip notification procedures to improve flexibility for the scallop fleet.
Effective May 7, 2012.
An environmental assessment (EA) was prepared for Framework 23 that describes the action and other considered alternatives and provides a thorough analysis of the impacts of these measures and alternatives. Copies of Framework 23, the EA, and the Initial Regulatory Flexibility Analysis (IRFA), are available upon request from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950.
Emily Gilbert, Fishery Policy Analyst, 978–281–9244; fax 978–281–9135.
The New England Fishery Management Council (Council) adopted Framework 23 on September 27, 2011, initially submitted it to NMFS on October 25, 2011, for review and approval, and submitted a revised final framework document on November 30, 2011. Framework 23 includes measures that require vessels fishing in the Atlantic Sea Scallop fishery to use a turtle deflector dredge (TDD), including where, when, and to which vessels this TDD requirement applies. It also revises the current accountability measures (AMs) related to the yellowtail flounder (YTF) annual catch limits (sub-ACLs) for the Georges Bank (GB) and Southern New England/Mid-Atlantic (SNE/MA) YTF stock areas. These modifications only alter the months when a closure applies and do not change the locations for these seasonal closure AMs. Framework 23 also changes how scallop landings are applied to the Northern Gulf of Maine Management (NGOM) total allowable catch (TAC) when harvested by federally NGOM-permitted vessels. Finally, Framework 23 implements procedural changes to when and where a vessel can declare a scallop trip through vessel monitoring systems (VMS).
The Council reviewed the Framework 23 proposed rule regulations as drafted by NMFS, which included regulations proposed by NMFS under the authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and deemed them to be necessary and consistent with section 303(c) of the Magnuson-Stevens Act. The proposed rule for Framework 23 published in the
The final Framework 23 management measures are described below. Details concerning the Council's development of these measures were presented in the
This action implements a requirement that all limited access (LA) vessels (regardless of permit category or dredge size), and limited access general category (LAGC) Individual Fishing Quota (IFQ) vessels that fish with a dredge with a width of 10.5 ft (3.2 m) or greater, use a TDD in the Mid-Atlantic (west of 71° W long.) from May through October.
The TDD is designed to reduce injury and mortality of sea turtles that come into contact with scallop dredges on the sea floor by deflecting sea turtles over the dredge frame and dredge bag. The TDD includes five modifications to the standard commercial dredge frame:
(1) The cutting bar must be located in front of the depressor plate.
(2) The angle between the front edge of the cutting bar and the top of the dredge frame must be less than or equal to 45 degrees.
(3) All bale bars must be removed, except the outer bale (single or double) bars and the center support beam, leaving an otherwise unobstructed space between the cutting bar and forward bale wheels, if present. The center support beam must be less than 6 in (15.24 cm) wide. For the purpose of flaring and safe handling of the dredge, a minor appendage not to exceed 12 in (30.5 cm) in length may be attached to the outer bale bar.
(4) Struts must be spaced no more than 12 in (30.5 cm) apart from each other.
(5) The TDD must include a straight extension (“bump out”) connecting the outer bale bars to the dredge frame. This “bump out” must exceed 12 in (30.5 cm) in length.
Each element of this dredge is based on direct field research that has been conducted over several years. The combination of these modifications is designed to reduce the likelihood of a sea turtle passing under the dredge frame when the gear is on the seafloor, which could result in the sea turtle being crushed or injured. Available information indicates that these modifications cumulatively benefit sea turtle conservation, while not compromising the structural integrity of the dredge design and scallop yield. These TDD components can be modified by future actions, if additional modifications are developed to further minimize impacts on sea turtles or improve the effectiveness of these measures.
This action requires that all LA vessels, regardless of permit category or dredge width, and all LAGC IFQ vessels that fish with dredge gear greater than or equal to 10.5 feet (3.2 m) in width in the applicable area and season, use a TDD. Because the bump out modification has not yet been fully tested on small dredges, Framework 23 exempts LA scallop vessels that use dredges with a width less than 10.5 ft (3.2 m) from that requirement of the TDD. Thus, LA vessels fishing with dredges less than 10.5 ft (3.2 m) in width only have to use a TDD with the first four modifications listed above. If an LA vessel fishes with two dredges at a time, both of which are less than 10.5 ft (3.2 m) in width, neither dredge is required to have the bump out extension, even though the combined width of both dredges is greater than 10.5 ft (3.2 m). The bump out exemption does not apply to LAGC vessels that use dredges less than 10.5 ft (3.2 m) wide because such vessels are exempted from the requirement to use a TDD entirely, due to concerns of the financial burden that building a new dredge would have on these small day boats, which may have lower IFQ allocations. If an LAGC vessel fishes with two dredges, both of which are less than 10.5 ft (3.2 m) wide, neither dredge is required to comply with the TDD requirements, even though the combined width of both dredges is greater than 10.5 ft (3.2 m).
Due to the time it will take manufacturers to develop TDDs for the scallop fishery, this measure will be effective 1 year after the effective date of Framework 23 (e.g., if Framework 23 is effective on March 15, 2012, the TDD regulations would be effective on March 15, 2013, and TDDs would be required to be used starting May 1, 2013). This delay also provides vessel operators and crew time to fish with the new dredge design before the TDD season begins, should they choose to do so.
This TDD requirement is an important measure to ensure compliance with the second reasonable and prudent measure (RPM#2) and accompanying terms and conditions (T/C) of the 2008 Biological Opinion (2008 Biological Opinion) on the Scallop FMP. RPM#2 states that “NMFS must continue to investigate and implement, as appropriate, gear modifications for scallop dredge and trawl gear to reduce the capture of sea turtles and/or the severity of the interactions that occur.” Along with effort restrictions in the Mid-Atlantic, which are required under the first RPM of the 2008 Biological Opinion, and previously implemented regulations requiring the use of chain mate (50 CFR 223.206(d)(11)), TDDs are expected to provide an additional conservation benefit to sea turtles by reducing the severity of any interactions that occur.
This action also revises the YTF seasonal closure AM schedules in both GB and SNE/MA such that the closures will occur during months with the highest YTF catch rates, rather than being in place for consecutive months beginning at the start of the fishing year (FY). These AM adjustments still only apply to LA vessels. Table 1 compares the current SNE/MA AM schedule with the new Framework 23 schedule. The major difference for SNE/MA is that the Framework 23 closure schedule occurs in the early spring and winter first, rather than starting with the spring and summer, as under the current AM for that stock area. AMs will occur in the same FY, with the winter closures occurring at the end of the FY.
Tables 2 and 3 compare the current GB AM schedules with the new Framework 23 schedules. The GB AM schedule is still complex because the extent of the closure period depends on whether or not Closed Area II Scallop Access Area (CAII) is open in the FY following a GB sub-ACL overage. In general, the major difference is that the current GB AM closures begin in the fall, when GB YTF catch rates are highest, followed by the winter months. The updated GB schedule will begin the closures at a time of year when scallop meat weights are lowest, thus impacts on the scallop resource and fishery should be lower compared to closing the area beginning in March through the spring and summer when scallop meat weights are larger. Similar to the Framework 23 SNE/MA schedule, all closures will occur in the same FY.
This action modifies the YTF AM regulations by allowing NMFS to re-examine the implementation of an AM once the FY has ended and all data are available. After the end of a given FY, if available end-of-year data results in different projected YTF catch levels than those that determined the initial announcement of any AM triggering (e.g., the extent of the estimated overage was higher or lower than originally estimated, or that an AM should or should not have been triggered), NMFS will adjust the AM determination to reflect the best information available. Currently the only sub-ACLs allocated to the scallop fishery are for SNE/MA YTF and GB YTF, but the Council's intent is for this flexibility to apply to any species' sub-ACL, should they be implemented in the scallop fishery in the future.
On or around January 15 of each year, the Regional Administrator is required to determine if the bycatch sub-ACLs are projected to be exceeded for that FY. If a sub-ACL is exceeded, a closure will be implemented in the following FY based on the overage schedule specified in this final rule. Several months after an FY is complete, a final estimate of YTF catch in the scallop fishery will be completed when all observer and scallop catch data are available. The timing of the final YTF year-end estimate is ultimately based on the availability of the observer data for a given FY. Ideally, observer data in open areas will be available 90 days after the completion of an observed trip. As such, the earliest month that the complete FY observer data would be available is likely June of the following FY. If the final estimate of YTF catch differs from the original estimate, this action gives the Regional Administrator the authority to revise the AM for the YTF sub-ACLs based on the final estimates. Due to the timing of the current AMs, there may not always be an opportunity to adjust AMs if the seasonal closure has already occurred during that FY, but the intent is to be more flexible to incorporate updated information when possible. This action does not give the
In November 2011, the Council adopted Framework Adjustment 47 (Framework 47) to the Northeast (NE) Multispecies FMP. Under Framework 47, the YTF AMs applicable to the scallop fishery would only be triggered if either the entire YTF ACL for a given stock area (SNE/MA or GB) is exceeded, or the scallop fishery exceeds its ACL by 50 percent or more. For example, if the entire YTF ACL for SNE/MA is exceeded in a given FY, and the scallop fishery exceeded its sub-ACL by 1.5 percent, an AM would be triggered for the following scallop FY based on the new Framework 23 schedule (i.e., a portion of SNE/MA would close in March and April). However, if the scallop fishery exceeded its sub-ACL by 1.5 percent but the total ACL for SNE/MA was not exceeded, no AM would be triggered in the scallop fishery for the following FY (i.e., an AM would only be triggered if the scallop FY exceeded its sub-ACL by 150 percent). The proposed rule for Framework 47 (77 FR 18179) published in the
To address some concerns regarding the management of the NGOM, this action allows federally permitted NGOM vessels to declare a state waters-only trip within the NGOM and not have those landings applied to the Federal NGOM TAC. If the vessel decides to fish exclusively in state waters within the NGOM area (i.e., MA, NH, and ME state waters), on a trip-by-trip basis, the scallop catch from state water only trips will not be applied against the Federal NGOM TAC. On a trip-by-trip basis, each NGOM vessel can decide which area it is going to fish in (i.e., Federal or state NGOM trip). A NGOM vessel may still fish in both state and Federal waters on a single trip, but that vessel will need to declare a Federal trip before leaving, and the entire catch from that trip will be applied to the Federal TAC, even if some of it was harvested in state waters.
Currently, NGOM and IFQ vessels that declare NGOM trips must have all landings applied to the Federal TAC, regardless of whether or not they were fishing in state or Federal waters of the NGOM. Although this action makes adjustments for NGOM-permitted vessels, the Council did not include a similar provision for IFQ vessels that fish in the NGOM. As a result, IFQ vessels will continue to have all of their landings applied to the NGOM TAC, as well as their IFQ allocations, when fishing in Federal or state waters within the NGOM.
Once the Federal TAC is closed, all federally permitted scallop vessels (i.e., LA, IFQ, and NGOM) are prohibited from fishing in any part of the NGOM until the next FY, unless they permanently relinquish their Federal NGOM permits and fish exclusively in state waters. This action does not change this provision for any scallop vessel, including NGOM vessels. NGOM vessels cannot declare state-only NGOM trips after the effective date of the Federal NGOM closure.
To date, the annual NGOM TAC of 70,000 lb (31.75 mt) has not been fully harvested in any FY, and most NGOM landings come from vessels fishing in state waters. Framework 23 does not change the NGOM hard TAC of 70,000 lb (31.75 mt). The Council will reevaluate the NGOM TAC in the next framework adjustment that will set the specifications for FYs 2013 and 2014.
Although this action applies to all NGOM permitted vessels, the ability for such vessels to fish in state waters within the NGOM (i.e., ME, NH, MA state waters) depends on whether or not such vessels have the necessary state permits to do so. In addition, NGOM permit holders still have to abide by the more restrictive possession limit of either their state or Federal NGOM scallop permit. This action does not exempt vessels from their Federal possession limit when fishing in state waters of the NGOM. To be exempt from Federal scallop possession limits, a state would have to apply for such exemption through the scallop state waters exemption program.
This action implements a measure that changes the current VMS trip declaration requirement for scallop vessels only, allowing them to declare a scallop trip anywhere shoreward of the VMS Demarcation Line, rather than from a designated port. Under current regulations, vessels that are involved in VMS fisheries (e.g., vessels with scallop, monkfish, multispecies, surfclam/quahog, and herring permits) must make their VMS trip declarations from inside a port. This action adjusts this process by allowing scallop vessels the authority to declare their scallop trips outside of a designated port, prior to crossing the VMS Demarcation Line and fishing, but does not change the trip declaration requirements for any other fishery. The Council's rationale for this alternative is to improve safety by eliminating the requirement that sometimes results in scallop vessels steaming into unfamiliar ports to declare their scallop trips before being able to fish. The Council may choose to address this issue in other VMS fisheries in future actions for those FMPs, and NMFS recommends that the Council discuss this further for other FMPs in order to be consistent, where possible, when addressing safety issues across all fisheries requiring VMS.
The Council has implemented this action for LA, LAGC IFQ, and LAGC NGOM vessels, although many of these scallop-permitted vessels will likely continue to declare from port, regardless of the option to do otherwise. The only vessels that will likely take advantage of this increased flexibility in trip declarations are the LA vessels declaring scallop DAS trips for fishing grounds that are far from their home port. These trips are what most commonly require a vessel to go into an unfamiliar port to declare into the DAS program because DAS begin to accrue once a vessel crosses to the seaward side of the VMS Demarcation Line and it is not possible, safe, or practicable to remain inside the VMS Demarcation Line throughout the steam to the fishing grounds. Because the current estimate of landings-per-unit-effort (LPUE) is calculated using DAS charged, this action does not change how LPUE is estimated, and increased catch is not expected.
This action includes several revisions to the regulatory text to address text that is duplicative and unnecessary, outdated, unclear, or otherwise could be improved through revision. For example, there are terms and cross references in the current regulations that are now inaccurate due to the regulatory adjustments made through Amendment 15 rulemaking (i.e., references to “TAC” in some cases should now refer to “annual catch limits (ACLs)”). NMFS revises the regulations to clarify the terminology intended by Amendment 15 to the FMP (76 FR 43746, July 21, 2011), and to provide more ease in locating these regulations by updating cross references.
This action also clarifies the intent of certain regulations. For example, the VMS regulations are clarified in § 648.10 to more clearly indicate the reporting requirements for various aspects of the scallop fishery (e.g., pre-landing notification requirements and state water exemption trip declaration requirements), to reflect the instructions
NMFS also removes outdated text regarding LAGC quarterly TACs, which ceased to exist after the IFQ program was implemented in FY 2010, and references to the CAII rotational management schedule, which was intended to be removed in the rulemaking for Framework 22, along with the schedules for the other GB access areas. NMFS makes these changes consistent with section 305(d) of the Magnuson-Stevens Act.
NMFS also changes, pursuant to its authority under section 305(d) of the Magnuson-Stevens Act, the coordinates of the Closed Area I (CAI) access area and the CAI North and South essential fish habitat (EFH) areas. These coordinates were initially developed through Framework 16 to the FMP (69 FR 63460, November 2, 2004) and were implemented through Amendment 15 for FY 2011. During the course of FY 2011, vessels fishing in the CAI access area discovered that the new coordinates for the access area created a western boundary that is
Finally, although this does not affect the current regulations, NMFS clarifies an error in table 3 of the final rule to Framework 22 (76 FR 43774; July 21, 2011). The scallop sub-ACL values of YTF in GB and SNE/MA were mistakenly reversed in this table and should have stated that the FY 2011 sub-ACLs in GB and SNE/MA are 200.8 mt and 82 mt, respectively, and the FY 2012 sub-ACLs in GB and SNE/MA are 307.5 mt and 127 mt, respectively. The regulations already indicate the correct values for these FYs, so this action makes no regulatory changes due to this error.
NMFS received three comment letters in response to the proposed rule from: A representative from Nordic Fisheries, a family-owned company that runs out of New Bedford, MA; the Fisheries Survival Fund (FSF), writing on behalf of full-time limited access scallop fleet members; and Oceana, a non-profit organization focused on ocean-related environmental issues. Six relevant issues relating to the proposed Framework 23 measures were raised; responses are provided below. NMFS may only approve, disapprove, or partially approve measures in Framework 23, and cannot substantively amend, add, or delete measures beyond what is necessary under section 305(d) of the MSA to discharge its responsibility to carry out such measures.
In § 648.14(i)(2)(ii)(B)(
The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws.
The Office of Management and Budget has determined that this rule is not significant according to Executive Order 12866.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of Framework 23 in this final rule. The FRFA consists of and incorporates the IRFA, the relevant analyses and summaries thereof prepared for Framework 23, and the following discussion. This FRFA describes the economic impact that this final rule, along with non-adopted alternatives, will have on small entities. A copy of the IRFA, the RIR, and the EA are available upon request (see
This action implements four specific management measures applicable to the scallop fishery for FY 2012 and beyond. A description of the action, why it is being considered, and the legal basis for this action are contained in Framework 23 and in the preambles of the proposed and final rules, and are not repeated here.
No public comments were received in response to the IRFA summary in the proposed rule or the economic impacts of these measures more generally on small businesses. Summaries of the public comments and NMFS' responses are provided in the “Comments and Responses” section of this final rule.
For the purposes of the RFA, the Small Business Administration (SBA) defines a small business entity in any fish-harvesting or hatchery business as a firm that is independently owned and operated and not dominant in its field of operation (including its affiliates), with receipts of up to $4 million annually. All of the vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $3 million according to the dealer's data for
The Office of Advocacy at the Small Business Association (SBA) suggests two criteria to consider in determining the significance of regulatory impacts; namely, disproportionality and profitability. The disproportionality criterion compares the effects of the regulatory action on small versus large entities (using the SBA-approved size definition of “small entity”), not the difference between segments of small entities. Because Framework 23 estimates that no individual vessel grosses more than $3 million in any FY from 1994 through 2010, all permit holders in the sea scallop fishery were considered small business entities for the purpose of this analysis. Therefore, it is not necessary to perform the disproportionality assessment to compare the effects of the regulatory actions on small versus large entities. A summary of the economic impacts relative to the profitability criterion is provided below.
The measures contained in this final rule affect vessels with LA and LAGC scallop permits. The Framework 23 document from the Council provides extensive information on the number and size of vessels and small businesses that would be affected by the proposed regulations, by port and state. There were 313 vessels that obtained full-time LA permits in 2010, including 250 dredge, 52 small-dredge, and 11 scallop trawl permits. In the same year, there were also 34 part-time (i.e., vessels that receive annual scallop allocations that are 40 percent of what is allocated to full-time vessels, based on the permit eligibility criteria established through Amendment 4 to the Scallop FMP) LA permits in the sea scallop fishery. No vessels were issued occasional scallop permits (i.e., vessels that receive annual scallop allocations that are 8.33 percent of what is allocated to full-time vessels, based on the permit eligibility criteria established through Amendment 4 to the Scallop FMP). In FY 2010, the first year of the LAGC IFQ program, 333 active IFQ (including IFQ permits issued to vessels with a LA scallop permit), 122 NGOM, and 285 incidental catch permits were issued. Since all scallop permits are limited access, vessel owners only cancel permits if they decide to stop fishing for scallops on the permitted vessel permanently. This is likely to be infrequent due to the value of retaining the permit. As such, the number of scallop permits could decline over time, but the decline would likely be less than 10 permits per year.
This action contains no new collection-of-information, reporting, or recordkeeping requirements. It does not duplicate, overlap, or conflict with any other Federal law.
A summary of the economic impacts of adopted and alternative measures is provided below. A detailed analysis of the economic impacts can be found in Section 5.4 of the Framework 23 document (see
In summary, in the short-term, the aggregate economic impact of this action on small businesses could range from a low negative to low positive, depending on the extent that positive impacts of the measures outweigh the costs of TDD requirement. These measures are not expected to have significant impacts on the viability of the vessels, especially in a highly profitable industry like the scallop fishery. Over the long-term, Framework 23 is expected to have positive economic impacts for the participants of the scallop fishery and related businesses. This action is not expected to have a considerable adverse impact on the net revenues and profits of the majority of the scallop vessels in the short and the medium term.
The following describes all of the alternatives considered by the Council.
This action implements a requirement for some scallop vessels to use a TDD from May 1 through October 31 in waters west of 71° W long. This requirement is applicable to all LA vessels (regardless of permit category or dredge size) and to those LAGC vessels that fish with a dredge(s) that has a width of 10.5 ft (3.2 m) or greater. The Council estimates that the cost of a new dredge plus the cost of freight would be about $5,000 for a standard dredge, and $2,500 to $3,000 for smaller dredges. The cost of buying a dredge and the freight cost will be a very small proportion (1 to 2 percent) of the average scallop revenues per LA vessel, even when the maximum estimate of costs is used. For an average LAGC vessel that uses only one dredge, the cost could be small, as well, amounting to about 2 percent of scallop revenue. Alternatively, for some vessels that use two dredges, the cost of buying and installing the dredges could be higher. Some of these vessels could choose to fish during times and in areas for which a TDD is not required.
The Council considered two other alternatives regarding which vessels would be required to use a TDD: One would have required the TDD for all LA vessels and no LAGC vessels, and thus would not have any adverse impacts on the LAGC IFQ vessels. The other non-selected alternative would have required the use of TDD for all vessels, including all LA and LAGC IFQ vessels, and would have had negative impacts on some LAGC IFQ vessels that use smaller dredges. There are some short-term costs associated with buying and installing TDDs under all alternatives, but these costs are not large and are not expected to have adverse impacts on the financial viability of small business entities. Indirect positive economic benefits over the medium to long term are expected to outweigh these costs under the adopted measure, particularly because it exempts LAGC vessels that use small dredges.
The option to have the TDD be required west of 71° W long. covers the majority of areas the scallop fishery and expected turtle interactions in the Mid-Atlantic overlap and excludes GB, where interactions with turtles are rare. This adopted measure minimizes the economic impacts for scallop vessels that fish solely in GB east of 71° W long. and those that fish in the Gulf of Maine. The adopted measure exempts LAGC vessels with dredges less than 10.5 ft (3.2 m) in width from TDD requirement, mitigating some of these negative impacts on the smaller boats fishing in those areas. The only other location option related to the TDD requirement was the area used to set effort limitations in Framework 22, which is the greatest area of overlap in the
Based on research indicating that using a TDD is not expected to have negative impacts on scallop landings, the season for the TDD requirement will probably have marginal economic impacts on the fishery overall. LA vessels are unlikely to change dredges during the year, once they are required to operate with a TDD during a part of the year. Therefore, the relative difference between the adopted season option (May 1 through October 31) and other non-selected options (i.e., May 1 through November 1, or June 1 through October 31) is likely to have only negligible impacts on these vessels. The difference between the season options could impact LAGC IFQ vessels relatively more than the LA vessels, but exempting LAGC IFQ vessels that use dredges less than 10.5 ft (3.2 m) wide prevents the adopted measure from negatively affecting smaller vessels. The increase in costs could also be minimized to some degree by leasing quota to LAGC IFQ vessels that fish in other areas. The shortest season considered by the Council (June through October) would have had the least impacts, and the longest considered season option (May through November) would have had the largest impact on vessels. The adopted season option maximizes the benefits of reducing the impacts on turtles, while not impacting a large proportion of scallop landings.
The adopted implementation date of the TDD requirements, 1 year after Framework 23 is implemented (i.e., May 2013, if Framework 23 is implemented in March 2012), allows manufacturers enough time to build dredges and gives vessels time to fish with the new dredge before the TDD requirement begins. A shorter period for implementation, such as the non-selected options for 90 days and 180 days after Framework 23's implementation, would not be feasible because so many dredges need to be built and it may not be possible to have all dredges manufactured in time. Overall, there are no other alternatives that would generate higher economic benefits for the participants of the scallop fishery.
This action revises the YTF seasonal closure AM schedules in both GB and SNE/MA such that the closures will be during months with the highest YTF catch rates when an overage occurs, rather than beginning at the start of the FY and running for consecutive months under No Action. Overall, these modifications are not expected to have large impacts on scallop vessels, given that only a small percentage of LA scallop landings took place in those areas. Because the revised closure schedules include the winter months, they will shift effort to seasons when the meat weights are larger, benefiting the scallop resource and increasing landings and overall economic benefits for the scallop vessels in the medium to long term. There are no other alternatives that would generate higher economic benefits for the participants of the scallop fishery.
The action to re-evaluate the AM determination mid-year, thus allowing for more flexibility in determining the appropriate AM seasonal closure length, is positive for LA scallop vessels compared to No Action. Although adjusting the FY to which the AMs would apply could result in higher benefits to the scallop fishery (e.g., if YTF AMs were triggered the year after the overage occurred), these measures were not considered by the Council and can be re-examined in a future framework action. Thus, given the two alternatives considered by the Council, the selected action generates the higher economic benefits for the participants of the scallop fishery.
This action allows all vessels with a Federal NGOM permit to fish exclusively in state waters, on a trip-by-trip basis, without the scallop catch from exclusive state water trips counted against the Federal NGOM TAC. This change is not expected to have any significant impacts under the current resource conditions on landings and revenues from this area. However, if the scallop resource abundance and landings within the State of Maine's waters increase in the future, this action could prevent a reduction in landings from federally permitted NGOM vessels fishing in the NGOM. This action could potentially have positive economic impacts on the vessels that fish both in the state and Federal waters. In addition, this action will keep the Federal NGOM hard-TAC at 70,000 lb (31.74 mt), which will have a positive economic impact on the participants of the NGOM scallop fishery. The only other TAC alternative would have lowered the Federal TAC to 31,000 lb (14.06 mt) to prevent excess fishing in the NGOM above potentially sustainable levels. Although the selected TAC alternative, if continued over the long-term, could result in reduced landings and revenues for the NGOM fishery if effort in Federal waters increases substantially, given the present lack of effort in the Federal portion of the NGOM, it is unlikely that keeping the TAC at this level will cause near-term problems. In addition, the Council will re-evaluate the NGOM TAC in the next framework adjustment that will set the specifications for FYs 2013 and 2014. Thus, there are no alternatives that would generate higher economic benefits for the participants of the scallop fishery.
This action allows a vessel to declare into the scallop fishery shoreward of the VMS Demarcation Line rather than from a designated port, enabling the vessel to reduce steaming time to scallop fishing grounds and decease its fuel and oil costs. Therefore, this modification will have positive economic impacts on scallop vessels and small business entities. The only other alternative considered by the Council was No Action and, as such, there are no alternatives that would generate higher economic benefits for the participants of the scallop fishery.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule, and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide (i.e., permit holder letter) will be sent to all holders of permits for the scallop fishery and available online. The guide and this final rule will be available upon request.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(e) * * *
(5) * * *
(i) A vessel subject to the VMS requirements of § 648.9 and paragraphs (b) through (d) of this section that has crossed the VMS Demarcation Line under paragraph (a) of this section is deemed to be fishing under the DAS program, the Access Area Program, the LAGC IFQ or NGOM scallop fishery, or other fishery requiring the operation of VMS as applicable, unless prior to leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop, NE multispecies, or monkfish fishery, as applicable, for a specific time period. NMFS must be notified by transmitting the appropriate VMS code through the VMS, or unless the vessel's owner or authorized representative declares the vessel will be fishing in the Eastern U.S./Canada Area, as described in § 648.85(a)(3)(ii), under the provisions of that program.
(ii) Notification that the vessel is not under the DAS program, the Access Area Program, the LAGC IFQ or NGOM scallop fishery, or any other fishery requiring the operation of VMS, must be received by NMFS prior to the vessel leaving port. A vessel may not change its status after the vessel leaves port or before it returns to port on any fishing trip, unless the vessel is a scallop vessel and is exempted, as specified in paragraph (f) of this section.
(f)
(1)
(2)
(i) Prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop fishery, as specified in paragraphs (e)(5)(i) and (ii) of this section, and the vessel does not possess, retain, or land scallops while under such a declaration. After declaring out of the fishery, leaving port, and steaming to another location, if the NGOM scallop vessel has not fished for any other fish (i.e., steaming only), the vessel may declare into the NGOM fishery without entering another port by making a declaration before first crossing the VMS Demarcation Line.
(ii) The vessel has specifically declared into the state-only NGOM fishery, thus is fishing exclusively in the state waters portion of the NGOM management area.
(3)
(4) * * *
(5) * * *
(i) * * *
(A) Notify the Regional Administrator, via their VMS, prior to each trip of the vessel under the state waters exemption program, that the vessel will be fishing exclusively in state waters; and
(g) * * *
(1) Unless otherwise specified in this part, or via letters sent to affected permit holders under paragraph (e)(1)(iv) of this section, the owner or authorized representative of a vessel that is required to use VMS, as specified in paragraph (b) of this section, unless exempted under paragraph (f) of this section, must notify the Regional Administrator of the vessel's intended fishing activity by entering the appropriate VMS code prior to leaving port at the start of each fishing trip.
(3) * * *
(iii) The vessel carries onboard a valid limited access or LAGC scallop permit, has declared out of the fishery in port, and is steaming to another location, pursuant to paragraph (f) of this section.
(h) * * *
(1) Less than 1 hr prior to leaving port, for vessels issued a limited access NE multispecies DAS permit or, for vessels issued a limited access NE multispecies DAS permit and a limited access monkfish permit (Category C, D, F, G, or H), unless otherwise specified in paragraph (h) of this section, or an occasional scallop permit as specified in this paragraph (h), and, prior to leaving port for vessels issued a limited access monkfish Category A or B permit, the vessel owner or authorized representative must notify the Regional Administrator that the vessel will be participating in the DAS program by calling the call-in system and providing the following information:
(8) Regardless of whether a vessel's owner or authorized representative provides correct notification as required by paragraphs (e) through (h) of this section, a vessel meeting any of the following descriptions shall be deemed to be in its respective fishery's DAS or Scallop Access Area Program for the purpose of counting DAS or scallop access area trips/pounds, and, shall be charged DAS from the time of sailing to landing:
(i) Any vessel issued a limited access scallop permit and not issued an LAGC scallop permit that possesses or lands scallops;
(ii) A vessel issued a limited access scallop and LAGC IFQ scallop permit that possesses or lands more than 600 lb (272.2 kg) of scallops, unless otherwise specified in § 648.60(d)(2);
(iii) Any vessel issued a limited access scallop and LAGC NGOM scallop permit that possesses or lands more than 200 lb (90.7 kg) of scallops;
(iv) Any vessel issued a limited access scallop and LAGC IC scallop permit that possesses or lands more than 40 lb (18.1 kg) of scallops;
(v) Any vessel issued a limited access NE multispecies permit subject to the NE multispecies DAS program requirements that possesses or lands regulated NE multispecies, except as provided in §§ 648.10(h)(9)(ii), 648.17, and 648.89; and
(vi) Any vessel issued a limited access monkfish permit subject to the monkfish DAS program and call-in requirement that possesses or lands monkfish above the incidental catch trip limits specified in § 648.94(c).
(g) * * *
(1)
(5) * * *
(i) * * *
(A)
(
(
The revisions and additions read as follows:
(i) * * *
(1) * * *
(iii) * * *
(A) * * *
(
(
(iv) * * *
(C) Purchase, possess, or receive for commercial purposes; or attempt to purchase or receive for commercial purposes; scallops from a vessel other than one issued a valid limited access or LAGC scallop permit, unless the scallops were harvested by a vessel that has not been issued a Federal scallop permit and fishes for scallops exclusively in state waters.
(E) Fish for, possess, or retain scallops in Federal waters of the NGOM management area on a vessel that has been issued and carries on board a NGOM permit and has declared into the state waters fishery of the NGOM management area.
(2) * * *
(ii) * * *
(B) * * *
(
(iv) * * *
(A) Fish for, possess, or land scallops after using up the vessel's annual DAS allocation and Access Area trip allocations, or when not properly declared into the DAS or an Area Access program pursuant to § 648.10, unless the vessel has been issued an LAGC scallop permit pursuant to § 648.4(a)(2)(ii) and is lawfully fishing in a LAGC scallop fishery, unless exempted from DAS allocations as provided in state waters exemption, specified in § 648.54.
(v) * * *
(C) If a limited access scallop vessel declares a scallop trip before first crossing the VMS Demarcation Line, but not necessarily from port, in accordance with § 648.10(f), fail to declare out of the fishery in port and have fishing gear unavailable for immediate use as defined in § 648.23(b), until declared into the scallop fishery.
(D) Once declared into the scallop fishery in accordance with § 648.10(f), change its VMS declaration until the trip has ended and scallop catch has been offloaded.
(3) * * *
(iii) * * *
(C) Declare into the NGOM scallop management area after the effective date of a notification published in the
(iv) * * *
(B) Fail to comply with any requirement for declaring in or out of the LAGC scallop fishery or other notification requirements specified in § 648.10(b).
(C) If an LAGC scallop vessel declares a scallop trip shoreward of the VMS Demarcation Line, but not necessarily from port, in accordance with § 648.10(f), fail to declare out of the fishery in port and have fishing gear unavailable for immediate use as defined in § 648.23(b), until declared into the scallop fishery.
(D) Once declared into the scallop fishery in accordance with § 648.10(f), change its VMS declaration until the trip has ended and scallop catch has been offloaded.
(v) * * *
(B) Declare into or leave port for an area specified in § 648.59(b) through (d) after the effective date of a notification published in the
(4) * * *
(i) * * *
(C) Declare into the NGOM scallop management area after the effective date of a notification published in the
(D) Possess more than 100 bu (35.2 hL) of in-shell scallops seaward of the VMS Demarcation Line and not be participating in the Access Area Program, or possess or land per trip more than 50 bu (17.6 hL) of in-shell scallops shoreward of the VMS Demarcation Line, unless exempted from DAS allocations as provided in § 648.54.
(E) Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of a Sea Scallop Access Area by a vessel that is declared into the Access Area Program as specified in § 648.60.
(ii) * * *
(A) Have an ownership interest in vessels that collectively are allocated more than 5 percent of the total IFQ scallop ACL as specified in § 648.53(a)(5)(ii) and (iii).
(iii) * * *
(A) Apply for an IFQ transfer that will result in the transferee having an aggregate ownership interest in more than 5 percent of the total IFQ scallop ACL.
(5) * * *
(i) Declare into, or fish for or possess scallops outside of the NGOM Scallop Management Area as defined in § 648.62.
(iii) Fish for, possess, or land scallops in state or Federal waters of the NGOM management area after the effective date of notification in the
(iv) Fish for, possess, or retain scallops in Federal waters of the NGOM after declaring a trip into NGOM state waters.
(b) * * *
(1)
(5)
(ii)
(
(
(
(
(
(B) A limited access scallop vessel that uses a dredge with a width less than 10.5 ft (3.2 m) is required to use a TDD except that such a vessel is exempt from the “bump out” requirement specified in paragraph (b)(5)(ii)(A)(5) of this section. This exemption does not apply to LAGC vessels that use dredges with a width of less than 10.5 ft (3.2 m) because such vessels are exempted from the requirement to use a TDD, as specified in paragraph (b)(5)(ii) of this section.
(C) Vessels subject to the requirements in paragraph (b)(5)(ii) of this section transiting waters west of 71° W long., from the shoreline to the outer boundary of the Exclusive Economic Zone, are exempted from the requirement to only possess and use TDDs, provided the dredge gear is stowed in accordance with § 648.23(b) and not available for immediate use.
(D)
(
(
(
(b) * * *
(4) * * *
(vii) If, prior to the implementation of Framework 22, a vessel owner exchanges an Elephant Trunk Access Area trip for another access area trip as specified in § 648.60(a)(3)(ii) in fishing year 2011, the vessel that receives an additional Elephant Trunk Access Area trip will receive a DAS credit of 7.4 DAS in FY 2011, resulting in a total fishing year 2011 DAS allocation of 39.4 DAS (32 DAS plus 7.4 DAS). This DAS credit from unused Elephant Trunk Access Area trip gained through a trip exchange is based on a full-time vessel's 18,000-lb (8,165-kg) possession limit and is calculated by using the formula specified in paragraph (b)(4)(vi) of this section, but the DAS conversion is applied as a DAS credit in the 2011 fishing year, rather than as a DAS deduction in fishing year 2012. Similarly, using the same calculation with a 14,400-lb (6,532-kg) possession limit, part-time vessels will receive a credit of 5.9 DAS if the vessel owner received an additional Elephant Trunk Access Area trip through a trip exchange in the interim between the start of the 2011 fishing year and the implementation of Framework 22 and did not use it. If a vessel fishes any part of an Elephant Trunk Access Area trip gained through a trip exchange, those landings would be deducted from any DAS credit applied to the 2011 fishing year. For example, if a full-time vessel lands 10,000 lb (4,536 kg) from an Elephant Trunk Access Area trip gained through a trip exchange, the pounds landed would be converted to DAS and deducted from the trip-exchange credit as follows: The 10,000 lb (4,536 kg) is first be multiplied by the estimated average meat count in the Elephant Trunk Access Area (18.4 meats/lb) and then divided by the estimated open area average meat count (also 18.4 meats/lb) and by the estimated open area LPUE for fishing year 2011 (2,441 lb/DAS), resulting in a DAS deduction of 4.1 DAS ((10,000 lb × 18.4 meats/lb)/(18.4 meats/lb × 2,441 lb/DAS) = 4.1 DAS). Thus, this vessel would receive a reduced DAS credit in FY 2011 to account for the Elephant Trunk Access Area trip exchange of 3.3 DAS (7.4 DAS − 4.1 DAS = 3.7 DAS).
(h) * * *
(2)
(i)
(ii) * * *
(C)
(
(3) * * *
(i) * * *
(A) Unless otherwise specified in paragraphs (h)(3)(i)(B) and (C) of this section, a vessel issued an IFQ scallop permit or confirmation of permit history shall not be issued more than 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraph (a)(4)(ii) of this section.
(5) * * *
(iii)
(c) * * *
(1)
(5)
(d) Available RSA allocation shall be 1.25 million lb (567 mt) annually, which shall be deducted from the ABC/ACL specified in § 648.53(a) prior to setting ACLs for the limited access and LAGC fleets, as specified in § 648.53(a)(3) and (a)(4), respectively. Approved RSA projects shall be allocated an amount of scallop pounds that can be harvested in open areas and available access areas. The specific access areas that are open to RSA harvest shall be specified through the framework process as identified in § 648.60(e)(1). In a year in which a framework adjustment is under review by the Council and/or NMFS, NMFS shall make RSA awards prior to approval of the framework, if practicable, based on total scallop pounds needed to fund each research project. Recipients may begin compensation fishing in open areas prior to approval of the framework, or wait until NMFS approval of the framework to begin compensation fishing within approved access areas.
(b) * * *
(3) The Closed Area I Access Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request), and so that the line connecting points CAIA3 and CAIA4 is the same as the portion of the western boundary line of Closed Area I, defined in § 648.81(a)(1), that lies between points CAIA3 and CAIA4:
(c)
(g) * * *
(2)
(a) * * *
(4)
(a) The NGOM scallop management area is the area north of 42°20' N. lat. and within the boundaries of the Gulf of Maine Scallop Dredge Exemption Area as specified in § 648.80(a)(11). To fish for or possess scallops in the NGOM scallop management area, a vessel must have been issued a scallop permit as specified in § 648.4(a)(2).
(1) If a vessel has been issued a NGOM scallop permit, the vessel is restricted to fishing for or possessing scallops only in the NGOM scallop management area.
(2) Scallop landings by vessels issued NGOM permits shall be deducted from the NGOM scallop total allowable catch when vessels fished all or part of a trip in the Federal waters portion of the NGOM. If a vessel with a NGOM scallop permit fishes exclusively in state waters within the NGOM, scallop landings from those trips will not be deducted from the Federal NGOM quota.
(3) Scallop landings by all vessels issued LAGC IFQ scallop permits and fishing in the NGOM scallop management area shall be deducted from the NGOM scallop total allowable catch specified in paragraph (b) of this section. Scallop landings by IFQ scallop vessels fishing in the NGOM scallop management area shall be deducted from their respective scallop IFQs. Landings by incidental catch scallop vessels and limited access scallop vessels fishing under the scallop DAS program shall not be deducted from the NGOM total allowable catch specified in paragraph (b) of this section.
(4) A vessel issued a NGOM or IFQ scallop permit that fishes in the NGOM may fish for, possess, or retain up to 200 lb (90.7 kg) of shucked or 25 bu (8.81 hL) of in-shell scallops, and may possess up to 50 bu (17.6 hL) of in-shell scallops seaward of the VMS Demarcation Line. A vessel issued an incidental catch general category scallop permit that fishes in the NGOM may fish for, possess, or retain only up to 40 lb of shucked or 5 U.S. bu (1.76 hL) of in-shell scallops, and may possess up to 10 bu (3.52 hL) of in-shell scallops seaward of the VMS Demarcation Line.
(b)
(2) Unless a vessel has fished for scallops outside of the NGOM scallop management area and is transiting the NGOM scallop management area with all fishing gear stowed in accordance with § 648.23(b), no vessel issued a scallop permit pursuant to § 648.4(a)(2) may possess, retain, or land scallops in the NGOM scallop management area once the Regional Administrator has provided notification in the
(c)
(b) * * *
(2) * * *
(i) The sector allocation shall be equal to a percentage share of the ACL allocation for IFQ scallop vessels specified in § 648.53(a), similar to an IFQ scallop vessel's IFQ as specified in § 648.53(h). The sector's percentage share of the IFQ scallop fishery ACL catch shall not change, but the amount
(iii) A sector shall not be allocated more than 20 percent of the ACL for IFQ vessels specified in § 648.53(a)(4)(i) or (ii).
(b) * * *
(2) * * *
(i) For years when the Closed Area II Sea Scallop Access Area is open, the closure duration shall be:
(ii) For fishing years when the Closed Area II Sea Scallop Access Area is closed to scallop fishing, the closure duration shall be:
(c) * * *
(2)
(e)
Department of Energy.
Proposed rule; notice of extension of public comment period.
This document announces that the period for submitting comments on the proposed rule to amend the standards for medical, physical performance, training, and access authorizations for protective force (PF) personnel employed by contractors providing security services to the Department will be extended until April 13, 2012.
The comment period for the proposed rule published March 6, 2012 (77 FR 13206), is extended. The Department of Energy (DOE) will accept comments, data, and information on the proposal received no later than April 13, 2012.
You may submit comments, identified by DOE–HQ–2012–0002 and/or 1992–AA40, by any of the following methods:
•
•
•
•
Requests for additional information may be sent to Mr. John Cronin, Office of Security Policy at (301) 903–6209;
On March 6, 2012, DOE published a proposed rule to revise the standards for medical, physical performance, training, and access authorizations for PF personnel employed by contractors providing security services to the Department. (77 FR 13206) Commenters requested an extension of the comment period until April 13, 2012, stating that the extension was needed to allow sufficient time to address many important issues in the proposed revisions. Commenters cited the need to collect information and thoughts from various sites to prepare comments from the National Council of Security Police, and stated that the additional week would allow time to gather all the information and prepare focused comments. DOE has determined that an extension of the public comment period is appropriate based on the foregoing reasons and is hereby extending the comment period. DOE will consider any comments received by April 13, 2012.
Under 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for certain Lycoming Engines (L)O–360, (L)IO–360, AEIO–360, O–540, IO–540, AEIO–540, (L)TIO–540, IO–580, and IO–720 series reciprocating engines. That NPRM proposed to require replacing certain crankshafts of affected engine models. This action revises that NPRM by including the IO–390, AEIO–390, and AEIO–580 series engine models having affected crankshafts. We are proposing this supplemental NPRM to prevent failure of the crankshaft, which will result in total engine power loss, in-flight engine failure, and possible loss of the aircraft. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this supplemental NPRM by June 5, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Lycoming, 652 Oliver Street, Williamsport, PA 17701; phone: 570–323–6181; fax: 570–327–7101, or on the internet at
You may examine the AD docket on the Internet at
Norm Perenson, Aerospace Engineer, New York Aircraft Certification Office, FAA, Engine & Propeller Directorate, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 516–228–7337; fax: 516–794–5531; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued an NPRM supersedure to amend 14 CFR part 39 to include an AD that would apply to Lycoming Engines (L)O–360, (L)IO–360, AEIO–360, O–540, IO–540, AEIO–540, (L)TIO–540, IO–580, and IO–720 series reciprocating engines. That NPRM published in the
Since we issued the previous NPRM (76 FR 50152, August 12, 2011), Lycoming Engines made us aware of additional engine models with crankshafts affected by the unsafe condition. They are the IO–390, AEIO–390, and AEIO–580 series reciprocating engines. These engine models were considered experimental and did not have a type certificate when we issued AD 2006–20–09 (71 FR 57407, September 29, 2006). These models now have type certificates and so we propose to add them in this supplemental NPRM.
We gave the public the opportunity to comment on the original NPRM. We received no comments on that NPRM (76 FR 50152, August 12, 2011).
We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the original NPRM (76 FR 50152, August 12, 2011). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.
This supplemental NPRM would retain all of the requirements of AD 2006–20–09 (71 FR 57407, September 29, 2006). This supplemental NPRM would also change the start date of affected engine models from March 1, 1997, to January 1, 1997, and would add Lycoming Engines IO–390, AEIO–390, and AEIO–580 series reciprocating engines to the applicability.
We estimate that this proposed AD would require no additional costs of compliance over those in the original AD 2006–20–09, which are $60,384,000. This proposed AD carries over the original costs of compliance. We estimate that this proposed AD would affect 3,774 engines installed on airplanes of U.S. registry. Because the proposed AD compliance interval coincides with engine overhaul or other engine maintenance, we estimate no additional labor hours will be needed to comply with this proposed AD. Parts would cost about $16,000 per engine. Based on these figures, we estimate the total cost of the proposed AD to be $60,384,000. Our estimate is independent of any possible warranty coverage.
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
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
We must receive comments by June 5, 2012.
This AD supersedes AD 2006–20–09, Amendment 39–14778 (71 FR 57407, September 29, 2006).
This AD applies to Lycoming Engines (L)O–360, (L)IO–360, AEIO–360, IO–390, AEIO–390, O–540, IO–540, AEIO–540, (L)TIO–540, IO–580, AEIO–580, and IO–720 series reciprocating engines listed by engine model number and serial number in Table 1, Table 2, Table 3, or Table 4 of Lycoming Mandatory Service Bulletin (MSB) 569A, dated April 11, 2006, and those engines with crankshafts listed by crankshaft serial number in Table 5 of Lycoming MSB 569A, dated April 11, 2006. These applicable engines are manufactured new, rebuilt, overhauled, or had a crankshaft installed after January 1, 1997.
This AD results from Lycoming Engines discovering that the March 1, 1997 start date of affected engine models in MSB No. 569A, is incorrect. This AD also results from the need to include the IO–390, AEIO–390, and AEIO–580 series engine models having affected crankshafts. We are issuing this AD to prevent failure of the crankshaft, which will result in total engine power loss, in-flight engine failure, and possible loss of the aircraft.
You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(1) If you previously complied with any of the following ADs, no further action is required:
(i) AD 2002–19–03 (67 FR 59139, September 20, 2002); or
(ii) AD 2005–19–11 (70 FR 54618, September 16, 2005); or
(iii) AD 2006–06–16 (71 FR 14638, March 23, 2006).
(2) If you previously accomplished any of the following Lycoming MSBs, no further action is required:
(i) MSB No. 552; or
(ii) MSB No. 553; or
(iii) Supplement No. 1 to MSB No. 553; or
(iv) MSB No. 566; or
(v) Supplement No. 1 to MSB No. 566; or
(vi) MSB No. 569, MSB No. 569A, and Supplement 1 to MSB No. 569A.
(3) If Lycoming Engines manufactured new, rebuilt, overhauled, or repaired your engine, or replaced the crankshaft in your engine before January 1, 1997, and you have not had the crankshaft replaced, no further action is required.
(4) If Table 1, Table 2, Table 3, or Table 4 of Lycoming MSB No. 569A, dated April 11, 2006, lists your engine serial number (S/N), and Table 5 of MSB No. 569A, dated April 11, 2006, does not list your crankshaft S/N, no further action is required.
(5) For engine model TIO–540–U2A, S/N L–4641–61A, no action is required.
If you did not previously comply with any of the ADs listed in paragraph (f)(1) of this AD, do the following:
(1) If Table 1, Table 2, Table 3, or Table 4 of Lycoming MSB No. 569A, dated April 11, 2006, lists your engine S/N, and Table 5 of MSB No. 569A, dated April 11, 2006, lists your crankshaft S/N, replace the affected crankshaft with a crankshaft that is not listed in Table 5 of MSB No. 569A at the earliest of the following:
(i) The time of the next engine overhaul as specified in Lycoming Engines Service Instruction No. 1009AU, dated November 18, 2009; or
(ii) The next separation of the crankcase, or
(iii) No later than 12 years from the time the crankshaft first entered service or was last overhauled, whichever is later.
(2) If Table 1, Table 2, Table 3, or Table 4 of Lycoming MSB No. 569A, dated April 11, 2006, does not list your engine S/N, and Table 5 of MSB No. 569A does list your crankshaft S/N (an affected crankshaft was installed as a replacement), replace the affected crankshaft with a crankshaft that is not listed in Table 5 of MSB No. 569A at the earliest of the following:
(i) The time of the next engine overhaul as specified in Lycoming Engines Service Instruction No. 1009AU, dated November 18, 2009; or
(ii) The next separation of the crankcase, or
(iii) No later than 12 years from the time the crankshaft first entered service or was last overhauled, whichever is later.
After the effective date of this AD, do not install any crankshaft that has a S/N listed in Table 5 of Lycoming MSB No. 569A, dated April 11, 2006, into any engine.
The Manager, New York Aircraft Certification Office, may approve AMOCs to this AD. Use the procedures in 14 CFR 39.19 to make your request. AMOCs approved for AD 2002–19–03 (67 FR 59139, September 20, 2002) and AD 2006–20–09 (71 FR 57407, September 29, 2006) are approved as AMOCs for this AD.
(1) For more information about this AD, contact Norm Perenson, Aerospace Engineer, New York Aircraft Certification Office, FAA, Engine & Propeller Directorate, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 516–228–7337; fax: 516–794–5531; email:
(2) For service information identified in this AD, contact Lycoming, 652 Oliver Street, Williamsport, PA 17701; telephone: 570–323–6181; fax: 570–327–7101, or on the internet at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL–600–2B19 (Regional Jet Series 100 & 440) airplanes. This proposed AD was prompted by reports of jamming/malfunctioning of the left-hand engine thrust control mechanism. This proposed AD would require modifying the left-hand engine upper core-cowl. We are proposing this AD to prevent jamming/malfunctioning of the left-hand engine thrust control mechanism, which could lead to loss of control of the airplane.
We must receive comments on this proposed AD by May 21, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514–855–5000; fax 514–855–7401; email
You may examine the AD docket on the Internet at
Mazdak Hobbi, Aerospace Engineer, Propulsion and Services Branch, ANE–173, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue. Westbury, NY 11590; telephone (516) 228–7330; fax (516) 794–5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Transport Canada Civil Aviation, which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF–2011–38, dated October 19, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been several reported incidents of jamming/malfunctioning of the left hand (L/H) engine thrust control mechanism on the affected aeroplanes. The investigation has shown that an improperly stowed or dislodged upper core-cowl-door Hold Open Rod, can impede a Fuel Control Unit (FCU) function by obstructing the movement of the FCU actuating lever arm, hence rendering the L/H engine thrust control inoperable.
Due to the engine's orientation, the subject FCU fouling is limited only to the L/H engine installation on the affected twin engine powered aeroplanes; however the potential hazard of any in-flight engine shut down caused by jammed engine fuel control lever is a safety concern that warrants mitigating action.
In order to help alleviate the possibility of an in-flight engine shut down due to the subject fouling of the FCU lever by the core-cowl-door Hold Open Rod, Bombardier has issued a Service Bulletin (SB) to install a new bracket at the L/H engine upper core-cowl-door location. This [Canadian] directive is issued to mandate the incorporation of the SB 601R–71–033 on the affected aeroplanes.
You may obtain further information by examining the MCAI in the AD docket.
Bombardier, Inc. has issued Service Bulletin 601R–71–033, dated August 24, 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 601 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $54 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $134,624, or $224 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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 21, 2012.
None.
This AD applies to Bombardier, Inc. Model CL–600–2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category; serial numbers 7003 through 7067 inclusive, 7069 through 7990 inclusive, and 8000 through 8112 inclusive.
Air Transport Association (ATA) of America Code 71: Powerplant.
This AD was prompted by reports of jamming/malfunctioning of the left-hand engine thrust control mechanism. We are issuing this AD to prevent jamming/malfunctioning of the left-hand engine thrust control mechanism, which could lead to loss of control 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 36 months or 6,000 flight hours after the effective date of this AD, whichever occurs first: Modify the left-hand engine upper core-cowl, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601R–71–033, dated August 24, 2011.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI Canadian Airworthiness Directive CF–2011–38, dated October 19, 2011; and Bombardier Service Bulletin 601R–71–033, dated August 24, 2011; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace at Billings Logan International Airport, Billings, MT, to accommodate aircraft using Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures at Billings Logan International Airport. This action also would make a minor adjustment to the geographic coordinates of the airport. The FAA is proposing this action to enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before May 21, 2012.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366–9826. You must identify FAA Docket No. FAA–2012–0316; Airspace Docket No. 12–ANM–1, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA 2012–0316 and Airspace Docket No. 12–ANM–1) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2012–0316 and Airspace Docket No. 12–ANM–1”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Billings Logan International Airport, Billings, MT. Controlled airspace is necessary to accommodate aircraft using RNAV (GPS) standard instrument approach procedures at Billings Logan International Airport. Also, the geographic coordinates of the airport would be updated to coincide with the FAA's aeronautical database. This action would enhance the safety and management of IFR operations at the airport.
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify controlled airspace at Billings Logan International Airport, Billings, MT.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for 14 CFR Part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, and effective September 15, 2011 is amended as follows:
(Lat. 45°48′28″ N., long. 108°32′34″ W.)
That airspace extending upward from 700 feet above the surface within a 16-mile radius of Billings Logan International Airport; that airspace extending upward from 1,200 feet above the surface within a 63-mile radius of the Billings Logan International Airport.
Securities and Exchange Commission.
Proposed rule; reopening of comment period.
The Securities and Exchange Commission is reopening the period for public comment on amendments it originally proposed in Securities Act Release No. 9126 to allow interested persons to submit comments on the results of investor testing regarding target date retirement funds. The rule proposal would, if adopted, require a target date retirement fund that includes the target date in its name to disclose the fund's asset allocation at the target date immediately adjacent to the first use of the fund's name in marketing materials; require marketing materials for target date retirement funds to include a table, chart, or graph depicting the fund's asset allocation over time, together with a statement that would highlight the fund's final asset allocation; require a statement in marketing materials to the effect that a target date retirement fund should not be selected based solely on age or retirement date, is not a guaranteed investment, and the stated asset allocations may be subject to change; and provide additional guidance regarding statements in marketing materials for target date retirement funds and other investment companies that could be misleading.
The comment period for the proposed rule published June 23, 2010, at 75 FR 35920, is reopened. Comments should be received on or before May 21, 2012.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
J. Matthew DeLesDernier, Attorney-Adviser, at (202) 551–6792, Office of Regulatory Policy, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–8549.
The Securities and Exchange Commission (“Commission”) is reopening the period for public comment on proposed rule amendments that are intended to provide enhanced information to investors concerning target date retirement funds and reduce the potential for investors to be confused or misled regarding these and other investment companies. These amendments were proposed on June 16, 2010,
The Commission recently engaged a consultant to conduct empirical research on individual investors' understanding of target date retirement funds and marketing materials related to those funds. Investors participating in an online survey were asked questions about, among other things, documents containing information about a hypothetical target date retirement fund, including information that would be required by the proposed amendments, if adopted. We have placed in the comment file for the proposed rule amendments the consultant's report concerning the online survey.
We invite additional comment on the proposal in light of this material, and on any other matters that may have an effect on the proposal.
Accordingly, we will extend the comment period until May 21, 2012.
By the Commission.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish special local regulations during the swim segment of the “Ironman 70.3 National Harbor” triathlon, a marine event to be held on the waters of the Potomac River in Prince George's County, Maryland on August 5, 2012. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Potomac River and National Harbor Access Channel during the event.
Comments and related material must be received by the Coast Guard on or before May 21, 2012. Requests for public meetings must be received by the Coast Guard on or before April 20, 2012.
You may submit comments identified by docket number USCG–2012–0156 using any one of the following methods:
(1) Federal eRulemaking Portal:
(2) Fax: 202–493–2251.
(3) Mail: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590–0001.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329.
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 e-mail Mr. Ronald Houck, U.S. Coast Guard Sector Baltimore, MD; telephone 410–576–2674, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG–2012–0156), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one on or before May 7, 2012 using one of the four methods specified under
On August 5, 2012, the National Harbor Marina will sponsor the Ironman 70.3 National Harbor triathlon at Oxon Hill, Prince George's County, Maryland. The swim segment of the triathlon will occur on the Potomac River and in portions of the National Harbor Access Channel from 6 a.m. to 10 a.m. The sponsor has stated that this marine event is not expected to be postponed or rescheduled. The event will consist of approximately 3,000 participants competing on a designated, marked swim course with a distance of 1.2 miles. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels.
The Coast Guard proposes to establish temporary special local regulations on specified waters of the Potomac River and National Harbor Access Channel, in Prince George's County, MD. The regulations will be in effect from 5 a.m. until 11 a.m. on August 5, 2012. The regulated area includes all waters of the Potomac River, National Harbor Access Channel, within an area from the shoreline and then west to a line connecting the following positions: From position latitude 38°47′28″ N, longitude 077°01′20″ W; thence southerly to position latitude 38°46′49″ N, longitude 077°01′28″ W. The effect of this proposed rule will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. Vessel traffic will be allowed to transit the regulated area at slow speed only when the Coast Guard Patrol Commander determines it is safe to do so. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation will prevent traffic from transiting a portion of the Potomac River and National Harbor Access Channel during the event, 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 the Local Notice to Mariners and marine information broadcasts, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area at slow speed only 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 or anchor in the effected portions of the Potomac River and National Harbor Access Channel during the event.
Although this regulation prevents traffic from transiting a portion of the Potomac River and National Harbor Access Channel during the event, this proposed rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area, if the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Coast Guard Sector Baltimore, MD. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 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 effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
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 proposed rule involves implementation of regulations within 33 CFR Part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. Add a temporary section, § 100.35–T05–0156 to read as follows:
(a)
(b)
(2)
(c)
(2) The operator of any vessel in the regulated area must: (i) Stop the vessel immediately when directed to do so by the Coast Guard Patrol Commander or any Official Patrol.
(ii) Proceed as directed by the Coast Guard Patrol Commander or any Official Patrol.
(d)
Environmental Protection Agency (EPA).
Proposed rule.
This document proposes to establish a tolerance for residues of methyl bromide in or on cotton, undelinted seed under the Federal Food, Drug, and Cosmetic Act (FFDCA) because there is a need for imported undelinted cottonseed for use as feed for dairy cattle in the United States. This imported cottonseed has become necessary because cottonseed is a critical part of the dairy cattle diet and the 2011 U.S. cotton crop was significantly below average due to severe drought conditions in Texas.
Comments must be received on or before June 5, 2012.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2012–0245, by one of the following methods:
•
•
•
Kimberly Nesci, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–8059; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified. Comments not timely-filed will not be considered in EPA's decision on this proposal or in any subsequent proceedings in this rulemaking.
EPA on its own initiative, under FFDCA section 408(e), 21 U.S.C. 346a(e), is proposing to establish a tolerance for residues of the fumigant methyl bromide, in or on cotton, undelinted seed at 150 parts per million (ppm) in newly proposed 40 CFR 180.124. The Animal and Plant Health Inspection Service, an agency of the United States Department of Agriculture (USDA–APHIS), supports EPA's proposal to establish this tolerance.
Undelinted cottonseed, also known as fuzzy cottonseed, needs to be imported into the United States for use as feed for dairy cattle in the United States. Cottonseed is a critical part of the dairy cattle diet because it is high in protein, energy, and fiber. In 2011, the size of the U.S. cotton crop was significantly below average due to severe drought conditions in Texas, the leading cotton producing state in the United States. As a result, U.S. cottonseed has been in short supply since the November 2011 harvest causing hardship for U.S. dairy cattle farmers.
The USDA–APHIS has, in the past, pursuant to its authorities from the Plant Protection Act (PPA, as amended, 7 U.S.C. 7701 et seq.), required imported cottonseed to be fumigated as a condition of entry into the United States. APHIS evaluated the use of methyl bromide for such fumigation and has determined through efficacy studies that methyl bromide does effectively mitigate potential pests of concern such as
As a feed commodity, imported cottonseed that has been fumigated with methyl bromide requires a tolerance. Without a tolerance or exemption, food or feed containing pesticide residues is considered to be unsafe and therefore “adulterated” under section 402(a) of FFDCA, 21 U.S.C. 342(a). Such food or feed may not be distributed in interstate commerce (21 U.S.C. 331(a)).
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.* * *”
Given the characteristics of methyl bromide, EPA concludes that the use of methyl bromide on cottonseed will result in detectable residues on the cottonseed itself. Although the Agency does not have controlled fumigation trial data for this cottonseed use, EPA has received such data for numerous other related commodities and use patterns. The data that would be most representative of potential residues in/on cottonseed are from methyl bromide trials with tree nuts because commodities with higher fat content, such as nuts and oils, tend to have higher residues. EPA is proposing a tolerance level of 150 parts per million (ppm), which is based on the highest residue found in tree nuts 24 hours after fumigation (138 ppm). Dissipation studies indicated that residues dissipate relatively quickly, which is consistent with the high vapor pressure of methyl bromide. Despite the tendency for rapid dissipation shown in numerous studies, the Agency believes there is still the potential for quantifiable residues in the imported cottonseed. However, residues are likely to be much less than the proposed tolerance level.
EPA further concludes that the use of methyl bromide to fumigate imported cottonseed will not result in any human dietary exposure to methyl bromide residues. There are two potential human dietary exposure pathways from treated cottonseed: Cottonseed oil, an edible commodity produced from cottonseed, and livestock commodities from livestock fed treated cottonseed. Cottonseed itself is not consumed by humans, nor is it used to produce any other edible commodity because unrefined cottonseed and cottonseed meal contains a naturally occurring compound that is toxic to humans, gossypol.
Cottonseed will be imported for the purpose of feeding dairy cattle. There is no reasonable expectation of finite residues of methyl bromide in livestock commodities from the use of methyl bromide to fumigate cottonseed. Methyl bromide residues in/on feed items are likely to significantly dissipate during storage due to the volatile nature of methyl bromide. Should there be methyl bromide residues remaining, the methyl bromide would likely undergo considerable changes in the digestive system of livestock. Methyl bromide is an alkylating agent and will probably undergo chemical reactions with the contents of the gut. These chemical reactions break down the compound into a bromide ion and a methyl group; thus, there will be no absorption of methyl bromide into the edible tissues of livestock. Further, methyl bromide has a very low octanol-water co-efficient. Octanol-water co-efficient values measure the tendency for a chemical to partition into organic vs. aqueous environments, and is therefore commonly used to predict the likelihood for partitioning into fatty tissue where xenobiotics are more likely to persist. Chemicals that tend to bioaccumulate tend to have orders of magnitude higher octanol-water co-efficient values than methyl bromide. And, although methyl bromide tends to be lipid soluble, the low octanol-water co-efficient value overwhelms this chemical characteristic. For these reasons, EPA does not believe there will be transfer of methyl bromide residues into the edible tissues of livestock. In its Reregistration Eligibility Decision document for methyl bromide, EPA also determined that no livestock commodity tolerances for methyl bromide are needed under 40 CFR 180.6(a)(3) because there is no reasonable expectation of finite methyl bromide residues in livestock commodities. Any inorganic bromide residues on livestock feeding items resulting from fumigation of cottonseed with methyl bromide are covered by existing inorganic bromide tolerances at 40 CFR 180.124.
Even if the imported cottonseed were to be diverted to cottonseed oil production, there will be no human exposure to methyl bromide in the cottonseed oil. In producing oil from cottonseed, the oil is removed by mechanical high pressure screw, by solvent extraction, or a combination of the two processes. Under either procedure, the seed kernels are first rolled into flakes and heated in a cooker or conditioner to reduce moisture. Once the oil is extracted, it is refined by adding sodium hydroxide that removes impurities and soapstock from the oil. Most cottonseed oil is bleached to remove coloring agents and is then filtered. Finally, it is deodorized with steam under a partial vacuum to remove any off flavors. Bromide ion will be removed from the oil during the final clean-up steps because the bromide ion is water soluble and will be washed away during the sodium hydroxide refining procedure. See also Docket EPA–HQ–OPP–2006–0766 document number 0022 for further information on cottonseed processing. Because methyl bromide is a gas at room temperature, the heating procedures in cottonseed oil processing will dissipate all methyl bromide residues from the seed and oil. Cottonseed oil produced from cottonseed fumigated with methyl bromide would not contain residues of methyl bromide.
Accordingly, EPA has determined that there would be no human dietary exposure to methyl bromide from the use of methyl bromide to fumigate cottonseed. If meat, milk, or cottonseed
An adequate analytical method, the head-space procedure of King et al. is available for enforcement of methyl bromide tolerances. Samples are blended with water at high speed in air-tight jars for 5 minutes. After 15 minutes, the partitioned gas phase is sampled and analyzed by gas chromatography with electron capture detection (GC/EC). See the February 22, 2002, Residue Chemistry Chapter for the methyl bromide RED available in Docket EPA–HQ–OPP–2005–0123.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for methyl bromide on cottonseed.
A tolerance is proposed for residues of methyl bromide in cottonseed at 150 ppm based on the finding that there would be no human dietary exposure to methyl bromide from treated cottonseed and no exposure to children.
EPA, at its own initiative, proposes to establish a tolerance under FFDCA section 408(d). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
1. The authority citation for part 180 continues to read as follows:
21 U.S.C. 321(q), 346a and 371.
2. Add § 180.124 to subpart C to read as follows:
(a)
(b)
(c)
(d)
Federal Communications Commission.
Proposed rule.
In this document, the Commission seeks comment on how to amend its rules to implement certain provisions of the Local Community Radio Act of 2010 (“LCRA”) that are not already the subject of Commission action. It also proposes changes to its rules intended to promote the low power FM service's localism and diversity goals, reduce the potential for licensing abuses, and clarify certain rules.
Comments must be filed on or before May 7, 2012, and reply comments must be filed on or before May 21, 2012. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before June 5, 2012.
You may submit comments, identified by MM Docket No. 99–25, by any of the following methods:
•
•
•
In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to the Federal Communications Commission via email to
Peter Doyle (202) 418–2789. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an email to
This is a synopsis of the Commission's document in MM Docket No. 99–25, FCC No. 12–28, adopted March 19, 2012. A synopsis of the order segments of this decision were published in a previous issue of the
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, 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 the Commission's Electronic Comment Filing System (ECFS).
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. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
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.
This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104–13. Public and agency comments are due June 5, 2012.
Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page <
The FCC also proposes to modify its ownership rules. First, the FCC proposes to revise its cross-ownership rule to permit cross-ownership of an LPFM station and an FM translator or translators. Second, the FCC proposes to modify its cross-ownership rule to permit a full-service radio station permittee or licensee that is a Tribe or Tribal Organization to apply for an LPFM station and to hold an attributable interest in such station. Third, the FCC proposes to permit Tribes or Tribal Organizations to seek more than one LPFM construction permit to ensure adequate coverage of tribal lands. We have revised FCC Form 318 to reflect this proposal.
The FCC further proposes to modify the point system used to select among mutually exclusive LPFM applicants and set forth in § 73.872 of the rules. First, the FCC proposes to modify the “established community presence” criterion to require that an applicant have maintained an established local presence for four years instead of the two years currently required. Second, it proposes to extend the “established community presence” standard in rural areas. Under the current rule, an LPFM applicant was deemed to have an established community presence if it was physically headquartered or had a campus within ten miles of the proposed LPFM transmitter site, or if 75 percent of its board members resided within ten miles of the proposed LPFM transmitter site. The Fourth Further Notice proposes to modify the ten-mile requirement to twenty miles for all LPFM applicants proposing facilities located outside the top fifty urban markets, for both the distance from transmitter and residence of board member standards. Third, the FCC proposes to allow local organizations, tribal organizations and/or tribes to file as consortia and receive one point under the established community presence criterion for each organization or tribe that qualifies for such a point. Fourth, the FCC proposes to award two points—as opposed to the one point currently awarded—to applicants qualifying under the local program origination criterion. Fifth, the FCC proposes to modify the point system to award a point to Native Nations and entities owned or controlled by Native Nations, when they propose to provide LPFM service to Native Nation communities. We have revised the Form 318 to reflect these changes to the point system.
Finally, the FCC proposes to modify the manner in which it processes requests for waiver of the second-adjacent channel minimum distance separation requirement, and to amend the rule that sets forth the obligations of LPFM stations with respect to interference to the input signals of FM translator or FM booster stations. We have revised the Form 318 to reflect these proposed changes.
FCC staff uses the data to determine whether an applicant meets basic statutory and regulatory requirements to become a Commission licensee and to ensure that the public interest would be served by grant of the application. In addition, the information contained within this information collection ensures that (1) The integrity of the FM spectrum is not compromised, (2) unacceptable interference will not be caused to existing radio services, (3) statutory requirements are met, and (4) the stations operate in the public interest.
1. In the
2. A number of provisions of the LCRA require Commission action. We seek comment below on how to amend our rules to most faithfully implement these provisions of the LCRA.
3. In 2007, the Commission established an interim waiver processing policy that permits an LPFM station that will receive increased interference or be displaced by a new or modified full-service FM station to seek waiver of the second-adjacent channel spacing requirements in connection with an application to move the LPFM station to a new channel. The Commission found that circumstances had changed considerably since it last considered the issue of protection rights for LPFM stations from subsequently authorized full-service stations. Specifically, in late 2006, the Commission had streamlined its licensing procedures, and announced the lifting of its freeze on the filing of community of license modification applications. These actions resulted in “increased filings” that the Media Bureau (“Bureau”) estimated could force approximately 40 LPFM stations to cease operations. For many of the LPFM stations at risk of displacement, the Bureau had identified alternate channels that would require waivers of the second-adjacent channel spacing requirements. To avoid “potential harm to this small but not insignificant number of LPFM stations,” the Commission adopted the waiver processing policy. In adopting this policy, the Commission relied on the general waiver provisions set forth in § 1.3 of the rules.
4. Section 3(b)(2)(A) of the LCRA explicitly grants the Commission the authority to waive the second-adjacent channel spacing requirements. Section 3(b)(2)(A) permits waivers where an LPFM station establishes, “using methods of predicting interference taking into account all relevant factors, including terrain-sensitive propagation models,” that its proposed operations “will not result in interference to any authorized radio service.”
5. We tentatively conclude that the waiver standard set forth in section 3(b)(2)(A) of the LCRA supersedes the interim waiver processing policy adopted by the Commission in 2007. We note that, under the interim waiver processing policy, when the Commission considers a waiver request, it “balance[s] the potential for new interference to the full-service station at issue against the potential loss of an LPFM station.” Section 3(b)(2)(A) of the LCRA, on the other hand, clearly requires an LPFM station to establish that its proposed operations “will not result in interference to any authorized radio service.” It leaves no room for balancing of the potential for interference with the potential for loss of service. We seek comment on our tentative conclusion and our reasoning. We also seek comment on whether we should permit LPFM applicants to make the sort of showings we routinely accept from FM translator applicants to establish that “no actual interference will occur.” Section 74.1204(d) of the rules permits a translator applicant to demonstrate that “no actual interference will occur” due to “lack of population” and we have permitted translator applicants to use an undesired/desired signal strength ratio methodology to narrowly define areas of potential interference when proposing to operate near another station operating on a second- or third-adjacent channel. Are such showings consistent with the statutory mandate to accept showings that a proposed LPFM service “will not result in interference to any authorized radio service”? Should we permit the use of directional antennas in conjunction with proposals attempting to protect second-adjacent stations?
6. We request comment on the factors that we should take into account and the showings we should require when considering requests for waiver of the second-adjacent channel spacing requirements. Should we require a showing that there are no fully-spaced channels available to the LPFM applicant? Should we take into account that the proposal would eliminate or reduce the interference received by the LPFM applicant? Should we consider whether the proposal would avoid a short-spacing between the proposed LPFM facilities and a full-service FM station, FM translator or FM booster station on a third-adjacent channel? Should we also take into account the interference protection and remediation obligations such short-spacing would trigger? Should we consider whether the proposal would result in superior spacing to full-service FM, FM translator or FM booster stations operating on co- and first-adjacent channels? Are there other factors or showings that we should consider?
7. Section 3(b)(2)(B) of the LCRA also sets out a framework for handling complaints when an LPFM station operating pursuant to a second-adjacent channel waiver has caused interference to the reception of any existing or modified full-service FM station “without regard to the location of the station receiving interference.” Upon receipt of a complaint of interference caused by an LPFM station operating pursuant to a second-adjacent channel waiver, the Commission must notify the LPFM station “by telephone or other electronic communication within 1 business day.” The LPFM station must “suspend operation immediately upon notification” by the Commission that it is “causing interference to the reception of any existing or modified full-service FM station.” It may not resume operations “until such interference has been eliminated or it can demonstrate * * * that the interference was not due to [its] emissions.” The LPFM station, however, may “make short test transmissions during the period of suspended operation to check the efficacy of remedial measures.” We propose to incorporate this framework for handling complaints into the rules. We seek comment on this proposal. We also request comment on whether and how we should define what constitutes a bona fide complaint that would trigger the Commission's obligation to notify the LPFM station at issue and that station's obligation to suspend operations. Finally, we solicit comment on whether and how to specify the showing an LPFM station operating pursuant to a second-adjacent channel waiver must make to demonstrate that it was not the source of the interference at issue.
8. When the Commission created the LPFM service in 2000, it declined to impose third-adjacent channel distance separation requirements, stating “our own technical studies and our review of the record persuade us that 100-watt LPFM stations operating without [third]-adjacent channel separation requirements will not result in unacceptable new interference to the service of existing FM stations.” The Commission also noted that “imposing [third]-adjacent channel separation requirements on LPFM stations would unnecessarily impede the opportunities for stations in this new service, particularly in highly populated areas where there is a great demand for alternative forms of radio service.”
9. Subsequently, on reconsideration, the Commission again declined to impose third-adjacent channel separation requirements. However, it did establish complaint and license
Although we expect it to be the rare case where an LPFM station operating on a [third-]adjacent channel causes more than a de minimis level of interference within the service area of a full power station protected by the distance separation requirements for other channel relationships, such a result would be unacceptable if it were to occur. Accordingly, we conclude on reconsideration that it would be prudent to establish procedures that would encourage cooperation between the parties and permit the Commission to take prompt remedial action where a significant level of interference can be traced to the commencement of broadcasts by a new LPFM station.
10. As noted, in 2001, we adopted third-adjacent channel spacing requirements at the direction of Congress. While we did not delete the third-adjacent channel complaint and license modification procedures from our rules, with the adoption of the spacing requirements, the procedures became irrelevant. Now, however, with the elimination of the third-adjacent spacing requirements under section 3 of the LCRA, a process for handling complaints of third-adjacent channel interference again has relevance. Congress has recognized this.
11. Rather than simply utilize the procedures set forth in § 73.810 of the rules, though, Congress has opted to impose broader remediation obligations, which are set forth in section 7 of the LCRA. Specifically, section 7 sets forth the following requirements:
• Section 7(1) of the LCRA requires the Commission to adopt “the same interference protections that FM translator stations and FM booster stations are required to provide as set forth in [§ ] 74.1203 of [the] rules.” These obligations apply to LPFM stations that would be considered short-spaced under the existing third-adjacent channel spacing requirements (“Section 7(1) Stations”).
• Section 7(2) requires that a new LPFM station “constructed on a third-adjacent channel” must “broadcast periodic announcements” that alert listeners that any interference they are experiencing could be the result of the station's operations and that instruct affected listeners to contact the station to report any interference.
• Section 7(3) directs the Commission to modify § 73.810 of the rules to require “[LPFM] stations on third-adjacent channels * * * to address interference complaints within the protected contour of an affected station” and encourage them to address “all other interference complaints.”
• Section 7(4) requires the Commission, to the extent possible, to “grant low-power FM stations on third-adjacent channels the technical flexibility to remediate interference through the collocation of the transmission facilities of the low-power FM station and any stations on third-adjacent channels.”
• Section 7(5) requires the Commission to “permit the submission of informal evidence of interference, including any engineering analysis that an affected station may commission,” “accept complaints based on interference to a full-service FM station, FM translator station, or FM booster station by the transmitter site of a low-power FM station on a third-adjacent channel at any distance from the full-service FM station, FM translator station, or FM booster station,” and “accept complaints of interference to mobile reception.”
• Section 7(6) requires the Commission to impose additional interference protection and remediation obligations on one class of LPFM stations.
12. Below, we discuss certain preliminary issues and tentatively conclude that section 7 of the LCRA creates two different LPFM interference protection and remediation regimes, one for LPFM stations that would be considered short-spaced under third-adjacent channel spacing requirements, and one for LPFM stations that would not be considered short-spaced under those requirements. Then, we proceed to discuss each of those regimes. Given the comprehensive nature of the regimes created by section 7, we propose to eliminate the existing interference complaint and remediation procedures set forth in § 73.810 of the rules and replace them with those set forth below.
13. Section 7(1) and 7(3) of the LCRA both address the interference protection and remediation obligations of LPFM stations on third-adjacent channels. Only section 7(1) specifies requirements for “low-power FM stations licensed at locations that do not satisfy third-adjacent channel spacing requirements * * *” With regard to such stations, Section 7(1) instructs the Commission to adopt “the same interference protections that FM translator stations and FM booster stations are required to provide as set forth in § 74.1203 of [the] rules.” Section 7(3), in contrast, directs the Commission to modify § 73.810 of the rules to require “[LPFM] stations on third-adjacent channels * * * to address interference complaints within the protected contour of an affected station” and encourage them to address “all other interference complaints.” We tentatively conclude that, through these two provisions, Congress has created two different interference protection and remediation regimes—one that applies to Section 7(1) Stations and one that applies to all other LPFM stations (“Section 7(3) Stations”). We seek comment on this tentative conclusion.
14. We note that, were we to conclude otherwise, Section 7(1) Stations would be subject to different and conflicting interference protection and remediation obligations. Specifically, under section 7(1), LPFM stations that would be considered short-spaced under third-adjacent channel spacing requirements must “eliminate” any actual interference they cause to the signal of any authorized station in areas where that station's signal is “regularly used.” This requirement encompasses locations beyond the authorized station's protected contour. In contrast, section 7(3) merely requires LPFM stations to “address” complaints of interference occurring within a full-service FM station's protected contour. To conclude that sections 7(1) and (3) both apply to Section 7(1) Stations would run afoul of one of the cardinal rules of statutory construction—a statute should be read as a harmonious whole. We believe our conclusion that Congress has created two different interference protection and remediation regimes is the most reasonable reading of section 7 of the LCRA as a whole. It makes sense that Congress would impose more stringent interference protection and remediation obligations on stations that are located nearest to full-service FM stations and have the greatest potential to cause interference. Moreover, our reading is consistent with the general rule that, where a protection approach offers greater flexibility, that flexibility is counter-balanced by more stringent interference remediation and protection requirements. The LCRA provides greater flexibility by eliminating third-adjacent channel spacing requirements for LPFM stations, but counter-balances that flexibility with a prohibition on LPFM stations that would be short-spaced under such requirements causing any actual interference to other stations.
15. Based on the text of section 7(1) of the LCRA, we tentatively conclude that, although section 3(a) of the LCRA mandates the elimination of the third-adjacent channel spacing requirements, we should retain them solely for purposes of reference in order to
16. Sections 7(4) and (5) of the LCRA establish a number of requirements related to interference protection and remediation. These range from a requirement that the Commission allow LPFM stations on third-adjacent channels to remediate interference through collocation to requirements related to what constitutes a bona fide complaint of interference. We tentatively conclude these sections apply only to Section 7(3) Stations. We seek comment on our tentative conclusion. We believe this is the most reasonable reading of these provisions. We note that these provisions use the same “low-power FM stations on third-adjacent channels” language as section 7(3), not the more specific “low-power FM stations licensed at locations that do not satisfy third-adjacent channel spacing requirements” language set forth in section 7(1). In addition, as discussed above, section 7(1) subjects LPFM stations licensed at locations that would be considered short-spaced under third-adjacent channel spacing requirements to the interference protection and remediation regime set forth in § 74.1203 of the rules. Thus, Section 7(1) Stations must remediate any actual interference caused by their operations or go off the air; must respond to all complaints meeting the specifications set forth in § 74.1203; and, must do so in the manner described in that section. That Congress required our wholesale adoption of the well-established and comprehensive regime in § 74.1203 of the rules bolsters our tentative conclusion that sections 7(4) and 7(5), which establish discrete requirements inconsistent with the § 74.1203 regime, do not apply to Section 7(1) Stations.
17. Finally, we tentatively conclude that sections 7(1), (2), (3), (4) and (5) of the LCRA apply only to third-adjacent channel interference. While Congress did not specify the type of interference to which these provisions apply, we believe this is the most reasonable reading of them. We note that, in each of these provisions, Congress refers specifically to LPFM stations on third-adjacent channels or LPFM stations that do not satisfy the third-adjacent channel spacing requirements. These references reflect a focus on those stations located on third-adjacent channels to LPFM stations and any interference caused to them, which necessarily would be third-adjacent channel interference. We believe that our conclusion is further supported by the fact that Congress separately addressed the possibility of second-adjacent channel interference in section 3 of the LCRA. We seek comment on our tentative conclusion.
18. Section 7(1) Stations are subject to the same interference protection regime applicable to FM translator and booster stations, which is set forth in § 74.1203 of the rules. As indicated above, this regime is more stringent than that currently set forth in § 73.810. Section 74.1203(a) prohibits “actual interference to * * * [t]he direct reception by the public of the off-the-air signals of any authorized broadcast station. * * *” It specifies that “[i]nterference will be considered to occur whenever reception of a regularly used signal is impaired by the signals radiated by” the interfering FM translator station. An interfering FM translator station must remedy the interference or cease operation. The rule has been interpreted broadly. It places no geographic or temporal limitation on complaints. It covers all types of interference. The reception affected can be that of a fixed or mobile receiver. The Commission also has interpreted “direct reception by the public” to limit actionable complaints to those that are made by bona fide listeners. Thus, it has declined to credit claims of interference or lack of interference from station personnel involved in an interference dispute. More generally, the Commission requires that a complainant “be `disinterested,' e.g., a person or entity without a legal stake in the outcome of the translator station licensing proceeding.” The staff has routinely required a complainant to provide his/her name, address, location(s) at which interference occurs, and a statement that the listener is, in fact, a listener of the affected station. Moreover, as is the case with other types of interference complaints, the staff has considered only those complaints where the complainant cooperates in efforts to identify the source of interference and accepts reasonable corrective measures. Accordingly, when the Commission concludes that a bona fide listener has made an actionable complaint of uncorrected interference, it will notify the station that “interference is being caused” and direct the station to discontinue operations. We seek comment on whether it would be appropriate to modify the regime set forth in § 74.1203 in any way in order to apply it to Section 7(1) Stations and, if so, whether we have authority to make any such changes in light of the statutory mandate to adopt “the same interference protections that FM translator stations and FM booster stations are required to provide as set forth in [§ ] 74.1203 of [the] rules.”
19. We also request comment on requiring newly constructed LPFM stations that would be considered short-spaced under third-adjacent channel spacing requirements to make the same periodic announcements required of third-adjacent channel LPFM stations that would not be considered short-spaced under section 7(2) of the LCRA. We see no reason to distinguish between listeners of stations that may experience interference as a result of the operations of Section 7(1) Stations and those that may experience interference as a result of the operations of Section 7(3) Stations for such purposes. Indeed, there will be less distance separating Section 7(1) Stations and full-service FM stations on third-adjacent channels and thus a greater potential for these stations to cause such interference, so that we believe requiring announcements would serve the public interest. We note, however, that section 7(1) explicitly requires the Commission to “provide the same [LPFM] interference protections that FM translator stations * * * are required to provide as set forth in § 74.1203 of its rules.” Section 74.1203 does not require an FM translator station to notify either the Commission or an affected station of an interference complaint within 48 hours of the receipt of such a complaint. Accordingly, we seek comment on whether we may impose this requirement on Section 7(1) Stations and, if so, whether we should.
20. Section 7(3) of the LCRA requires the Commission to modify § 73.810 of the rules to require Section 7(3) Stations “to address interference complaints within the protected contour of an affected station” and encourage them to address all other interference complaints, including complaints “based on interference to a full-service FM station, an FM translator station or an FM booster station by the transmitter site of a low-power FM station on a third-adjacent channel at any distance from the full-service FM station, FM translator station or FM booster station.” As noted above, we tentatively conclude that sections 7(2), (4) and (5) apply only to Section 7(3) Stations. We discuss the general interference remediation requirements set forth in section 7(3) and the additional provisions below.
21.
22.
23. Section 7(2) also directs the Commission to require newly constructed Section 7(3) Stations to notify the Commission and all affected stations on third-adjacent channels of an interference complaint by electronic communication within 48 hours of receipt of such complaint. Finally, section 7(2) mandates that we require newly constructed Section 7(3) Stations on third-adjacent channels to cooperate in addressing any such interference complaints. We seek comment on whether to specify the scope of efforts which a Section 7(3) Station must undertake, and whether to relieve newly constructed Section 7(3) Stations on third-adjacent channels of their obligations to cooperate in instances where the complainant does not reasonably cooperate with the LPFM stations' remedial efforts.
24.
The Federal Communications Commission shall—(A) permit the submission of informal evidence of interference, including any engineering analysis that an affected station may commission; (B) accept complaints based on interference to a full-service FM station, FM translator station, or FM booster station by the transmitter site of a low-power FM station on a third-adjacent channel at any distance from the full-service FM station, FM translator station, or FM booster station; and (C) accept complaints of interference to mobile reception.
25. We request comment on whether any of the four criteria set forth in § 73.810(b)(1) of the rules remain relevant. We tentatively conclude that section 7(5) requires us to delete § 73.810(b)(1) (bona fide complaint must allege interference caused by LPFM station that has its transmitter site located within the predicted 60 dBu contour of the affected station), (2) (bona fide complaint must be in form of affidavit and state the nature and location of the alleged interference) and (3) (bona fide complaint must involve a fixed receiver located within the 60 dBu contour of the affected station and not more than 1 kilometer from the LPFM transmitter site). We solicit comment on whether we should retain the remaining criterion, which requires a bona fide complaint to be received within one year of the date an LPFM station commenced broadcasts.
26.
27. One additional provision of section 7—section 7(6)—requires the Commission to impose additional interference protection and remediation obligations on one class of LPFM stations. Specifically, section 7(6) of the LCRA directs the Commission to create special interference protections for “full-service FM stations that are licensed in significantly populated States with more than 3,000,000 population and a population density greater than 1,000 people per square mile land area.” The obligations apply only to LPFM stations licensed after the enactment of the LCRA. Such stations must remediate actual interference to full-service FM stations licensed to the significantly populated states specified in section 7(6) and “located on third-adjacent, second-adjacent, first-adjacent or co-channels” to the LPFM station and must do so under the interference and complaint procedures set forth in § 74.1203 of the rules. However, Congress has created an outer limit to the interference protection obligations in section 7(6). That outer limit is the co-channel spacing distance set forth in § 73.807 of the rules for the affected full-service station's class.
28. This statutory requirement is different than current policy. Today, if an LPFM station meets the spacing requirements, it is “not required to eliminate interference caused to existing FM stations.” With the enactment of LCRA, at least with respect to full-service FM stations licensed to the significantly populated states that meet the criteria set forth in section 7(6), LPFM stations licensed after its effective date must remediate any actual interference that occurs. We note that the section 7(6) interference requirements are, with one exception, unambiguous. We seek comment on how to interpret the term—“States.” Only New Jersey and Puerto Rico satisfy the population and population density thresholds set forth in section 7(6). This raises the question of whether Congress intended the term “States” to include the territories and possessions of the United States.
29. Section 6 of the LCRA requires the Commission to “modify its rules to address the potential for predicted interference to FM translator input signals on third-adjacent channels set forth in Section 2.7 of the technical report entitled `Experimental Measurements of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume One—Final Report (May 2003)'” (“Final Report”). Section 2.7 of the Final Report finds that significant interference to translator input signals does not occur for undesired/desired ratio values below 34 dB at the translator input. Section 2.7 sets out a formula (the “Mitre Formula”) that allows calculation of the minimum LPFM-to-translator separation that will ensure a undesired/desired ratio of 34 dB.
30. The Commission currently requires LPFM stations to remediate actual interference to the input signal of an FM translator station but has not established any minimum distance separation requirements or other preventative measures. Based on the language of section 6, which requires the Commission to “address the potential for predicted interference,” we tentatively conclude that our existing requirements regarding remediation of actual interference must be recast as licensing rules designed to prevent any predicted interference.
31. We propose to adopt a basic threshold test. This test is designed to closely track the interference standard developed by Mitre, without necessarily requiring LPFM applicants to obtain the receive antenna technical characteristics that are incorporated into the Mitre Formula. We propose that any application for a new or modified LPFM station construction permit may not use a transmitter site within the “potential interference area” of any FM translator station that receives directly off-air, the signal of a third-adjacent channel FM station. For these purposes, we define the “potential interference area” to be any area within 2 km of the translator site or any area within 10 km of the translator site within the azimuths from −30 degrees to +30 degrees of the azimuth from the translator site to the site of the station being rebroadcast by the translator. For example, if the primary station is located at 280 degrees true (from the translator site), the LPFM station must not be within 10 km of the translator between the azimuths 250 to 310 degrees true (from the translator site), and must be at least 2 km from the translator tower site in all other directions. If an LPFM application proposes a transmitter site within the potential interference area and fails to include an exhibit demonstrating lack of interference to the off-air reception, we would dismiss the application as defective.
32. We propose two ways for an LPFM applicant within the potential interference area to show lack of interference to the input signal of a potentially affected translator. First, we propose, as indicated in section 2.7 of the Final Report, that LPFM applicants may show that the ratio of the signal strength of the LPFM (undesired) proposal to the signal strength of the FM (desired) station is below 34 dB at all locations. Second, we propose to allow use of the equation provided in Section 2.7 of the Final Report to demonstrate lack of interference to the reception of the FM station at the translator transmitter site. Because we do not authorize translator receive antenna locations, we propose to assume that the translator receive antenna is co-located with its associated translator transmit antenna. In addition, this equation would require the horizontal plane pattern of the translator's receive antenna. This information is not typically available publicly or in the Consolidated Database System (“CDBS”). Therefore, we propose to allow the use of a “typical” pattern in situations where an LPFM applicant is not able to obtain information from the translator licensee, despite reasonable efforts to do so. We seek comment on this proposal.
33. As with similar situations involving dismissals for violation of interference protection requirements, we propose to permit LPFM applicants to seek reconsideration of a dismissal and reinstatement nunc pro tunc by demonstrating that their proposals will not cause any actual interference to the input signal of any FM translator station using either the ratio or the Mitre Formula. Furthermore, we seek comment on whether this process should be applicable to only translators receiving FM station signals, or also include those that receive third-adjacent channel translator signals directly off-air.
34. In this
35. There are two classes of LPFM facilities: LP100 and LP10. The Commission permits LP100 stations to operate with a maximum power of 100 watts ERP at 30 meters HAAT. LP10 stations may operate with a maximum power of 10 watts ERP at 30 meters HAAT. To date, the Commission has issued construction permits and licenses only for LP100 class facilities. Accordingly, we seek comment on whether to eliminate the LP10 class of service.
36. In addition, we seek comment on whether to permit LPFM stations in smaller communities, rural areas or “non-core” locations (i.e., areas outside population centers) in larger markets to increase power levels to a maximum ERP of 250 watts at 30 meters HAAT, as urged by both the Amherst Alliance (“Amherst”) and the Catholic Radio Association (“CRA”). Both Amherst and CRA support permitting LPFM stations to operate with up to 250 watts ERP. They focus on the particular challenges of maintaining economically viable LPFM stations in rural areas where population densities are low and larger coverage areas are possible.
37. We seek comment on whether increased power levels could offset limited potential audiences, promote LPFM station viability and expand radio service to areas where full service operations may not be economically feasible. Such an approach would be consistent with the Commission's decision to adopt a more flexible definition of “local” applicant in non-urban areas. We note that this potential revised maximum operating limit would put LPFM stations on similar footing to FM translator stations which may operate with a maximum power of 250 watts ERP.
38. We seek comment on whether establishing a higher power level for certain LPFM stations would allow these stations to better meet the needs of their local communities. Notwithstanding the potential service benefits, we also seek comment on whether an increase in the maximum LPFM power level can be implemented in a manner that would not undermine the detailed LCRA protection standards and interference remediation procedures, which are presumably grounded on the current LPFM maximum power level. Such an increase in power for certain LPFM stations may be possible as we will be maintaining or increasing the spacing requirements, not decreasing them. We also seek comment
39. LPFM stations are currently required to protect full-service stations on their intermediate frequencies (“I.F.”), while translator stations operating with less than 100 watts ERP are not. We recognize this disparity and propose to remove I.F. protection requirements for LPFM stations operating with less than 100 watts. We believe the same reasoning that the Commission applied in exempting FM translator stations operating with less than 100 watts ERP from the I.F. protection requirements applies for LPFM stations operating at less than 100 watts ERP. These stations too are the equivalent of Class D FM stations, which are not subject to I.F. protection requirements. We note that FM allotments would continue to be protected on the I.F. channels based on existing international agreements. We seek comment on this proposal.
40. The LPFM service is reserved solely to non-profit, community-based entities. However, we believe that the wording of § 73.853 of the rules is unclear and could be read to require that an applicant be “local” only at the time of application. Such a reading would contravene our intent in adopting—and reinstating—the local ownership requirement, which rested on our predictive judgment that “local entities with their roots in the community will be more attuned and responsive to the needs of that community, which have heretofore been underserved by commercial broadcasters.” We therefore propose to clarify this requirement by revising § 73.853(b) to read: “Only local applicants will be permitted to submit applications. For the purposes of this paragraph, an applicant will be deemed local if it can certify, at the time of application, that it meets the criteria listed below and if such applicant continues to satisfy the criteria at all times thereafter. * * *” We seek comment on this proposed requirement.
41. The current version of § 73.853 of the rules does not include federally recognized American Indian Tribes and Alaska Native Villages (“Native Nations”), consortia of Native Nations, or entities majority owned by Native Nations or consortia, among the categories of eligible applicants for stations in the LPFM service. We have recently expressed our commitment to assisting Native Nations in establishing radio service to their members living on tribal lands, including a Tribal Priority that we incorporated into the threshold fair distribution analysis performed pursuant to section 307(b) of the Communications Act of 1934, as amended (“Act”), when comparing mutually exclusive applications for permits to construct new or modified full-service NCE FM stations that propose service to different communities. In keeping with this commitment, we seek comment in this
42. Accordingly, we propose to revise § 73.853(a) of the rules by adding the following: “(3) Tribal Applicants, as defined in [§ ] 73.7000 of this [p]art, that will provide non-commercial radio services.” We further propose to revise § 73.853(b) of the rules by adding the following: “(4) In the case of a Tribal Applicant, as defined in [§ ]73.7000 of this [p]art, the proposed site for the transmitting antenna is located on that Tribal Applicant's `Tribal Lands,' as defined in [§ ] 73.7000 of this [p]art.” We believe that allowing Native Nations to hold LPFM licenses will be consistent with the localism and diversity goals of the LPFM service and will further our goal of assisting Native Nations in establishing radio service to their members on tribal lands.
43. From the outset, the Commission has prohibited common ownership of an LPFM station and any other broadcast station, as well as other media subject to the Commission's ownership rules. This prohibition furthers one of the most important purposes of establishing the LPFM service—“to afford small, community-based organizations an opportunity to communicate over the airwaves and thus expand diversity of ownership.” We seek comment on whether to revise our rules to permit cross-ownership of an LPFM station and an FM translator or translators. We note that this revision could enable LPFM stations to expand their listenership and provide another way in which translators could serve the needs of a community. We do not believe allowing limited cross-ownership of LPFM stations and FM translators will have a negative effect on the diversity of ownership. However, we solicit comment on this issue. In addition, we request comment on how cross-ownership of an LPFM station and an FM translator station would impact the extremely localized service that LPFM stations provide. Finally, we solicit input on whether to authorize such cross-ownership only if the FM translator rebroadcasts the programming of its co-owned LPFM station; whether we should require some overlap of the 60 dBu contours of the cross-owned stations; whether to set some distance or geographic limits on the cross-ownership; and whether to permit an LPFM station to use an alternative signal delivery mechanism to deliver its signal to a commonly owned FM translator.
44. We also seek comment on whether to modify our cross-ownership rule to permit a full-service radio station permittee or licensee that is a Native
45. To further its diversity goals and foster local, community-based service, the Commission prohibits entities from owning more than one LPFM station in the same community. We seek comment on whether we should permit Native Nations and entities owned or controlled by Native Nations to seek more than one LPFM construction permit to ensure adequate coverage of tribal lands. For instance, we could permit this when Native Nations and entities owned or controlled by Native Nations seek to serve large, irregularly shaped or rural areas. Where this is the case, an applicant may be unable to ensure adequate coverage of tribal members and tribal lands with one LPFM station. We also could permit multiple ownership only when there are available channels for other applicants. In such instances, there would be no risk that a new entrant would be precluded from offering service. We believe permitting Native Nations to hold more than one LPFM license would advance the Commission's efforts to enhance the ability of Native Nations not only to receive radio service tailored to their specific needs and cultures, but to increase ownership of such radio stations by Native Nations and entities owned or controlled by Native Nations. We seek comment on whether to accomplish this through amendment of § 73.855(a) of the rules or through waiver.
46. Below, we propose certain changes to the manner in which we process mutually exclusive LPFM applications. These changes are intended to better ensure that we award LPFM licenses to those organizations most capable of serving the very localized communities and underrepresented groups the LPFM service was designed to serve, and to improve the efficiency of the selection process.
47. Currently, under the LPFM selection procedures for mutually exclusive LPFM applications set forth in § 73.872 of the rules, the Commission awards one point to an applicant that has an established community presence. The Commission deems an applicant to have such a presence if, for at least two years prior to application filing, the applicant has been headquartered, has maintained a campus or has had three-quarters of its board members residing within ten miles of the proposed station's transmitter site. In adopting this criterion, the Commission intended to “favor organizations that have been operating in the communities where they propose to construct an LPFM station and thus have `track records' of community-service and established constituencies in their communities.” The Commission believed that, because of their longstanding organizational ties to their communities, applicants with established community presences were likely to be “more attuned to, and have organizational experience addressing, the needs and interests of their communities.”
48. We propose to revise the language of § 73.872(b)(1) to clarify that an applicant must have had an established local presence for a specified period of time prior to filing its application and must maintain that local presence at all times thereafter. We note that, while Section 73.872(b)(1) currently does not include the requirement that an applicant maintain its local presence, we believe that is the only reasonable interpretation of the rule. We seek comment on this proposed change to § 73.872(b)(1).
49. In addition, we seek comment on three additional changes to the rule. First, we request comment on whether to revise our definition of “established community presence” to require that an applicant have maintained such a presence for a longer period of time, such as four years. While this change in the rules would result in a smaller pool of organizations that could earn this comparative point, we believe it would better ensure that LPFM licensees are attuned to the local interests of the communities they seek to serve. Alternatively, should we maintain the two-year threshold but also award an additional point to applicants that have a substantially longer established community presence (e.g., four years)? Second, we solicit comment on whether we should modify § 73.872(b)(1) to extend the “established community presence” standard to 20 miles in rural areas. We note that such a change would bring § 73.872(b)(1) in line with § 73.853(b). Finally, we seek comment on whether to allow local organizations filing as consortia to receive one point under the established community presence criterion for each organization that qualifies for such a point. If we were to revise § 73.872(b)(1) in this fashion, should we cap the number of points awarded to consortia at three? We note that, currently, applicants tied with the highest number of points may enter into time-share agreements. In such a situation, their points are aggregated. This proposal would operate in a similar fashion, except that it would precede and potentially preclude post-filing point aggregation settlements. We believe this proposed change could significantly promote diversity, speed the licensing process and provide further incentive for applicants to enter into voluntary time-sharing arrangements in spectrum-limited areas. However, we seek comment on whether there is any potential for abuse of such a change in the rules and, if so, how we can prevent it. For instance, could this proposed rule change lead local organizations interested in constructing and operating an LPFM station to recruit other local organizations that have no interest in doing so to participate in a consortium in order to inflate the consortium's point total?
50. The Commission currently encourages LPFM stations to locally originate programming. It does so by incorporating local program origination as one of the three one-point criteria used to select among mutually exclusive applicants. In adopting the local program origination criterion, the Commission reasoned that “local program origination can advance the Commission's policy goal of addressing unmet needs for community-oriented radio broadcasting” and concluded that “an applicant's intent to provide locally-originated programming is a reasonable gauge of whether the LPFM station will function as an outlet for community self-expression.” We seek comment on whether to place greater emphasis on this selection factor by awarding two points—instead of the one point currently awarded—to an applicant that pledges to originate at least eight hours of programming each day. Do the limited licensing opportunities for LPFM stations in major markets support giving greater weight to this criterion? Does the
51. We seek comment on whether to develop additional selection criteria for the LPFM point system in order to limit the number of involuntary time-share licensing outcomes. Specifically, we seek comment on whether we should modify our point system to award a point to Native Nations and entities owned or controlled by Native Nations, when they propose to provide LPFM service to Native Nation communities. We note that this criterion would be similar to the “Tribal Priority” that we incorporated into the threshold fair distribution analysis that we perform pursuant to Section 307(b) of the Act, when we are faced with mutually exclusive applications for permits to construct new or modified full-service FM, AM, or NCE FM stations that propose service to different communities. We also note that we believe adoption of a Native Nation selection criterion would further our efforts to increase ownership of radio stations by Native Nations and entities owned or controlled by Native Nations and to enable Native Nations and such entities to serve the unique needs and interests of their communities. Finally, in addition to seeking comment on this “Native Nation” criterion, we invite the submission of additional proposals for new selection criteria, provided they are (a) specifically linked to Commission policy, and (b) structured to withstand scrutiny under applicable legal standards.
52. In the event the point analysis results in a tie, the Commission employs voluntary time-sharing as the initial tie-breaker. In these circumstances, the Commission releases a public notice announcing the tie and gives the tied applicants the opportunity to propose voluntary time-sharing arrangements. Currently, following the award of voluntary time-share construction permits, if one of the participants in a voluntary time-sharing arrangement does not construct or surrenders its station license after commencing operations, the remaining time-share participants are free to apportion the vacant air-time as they see fit. We seek comment on the procedures we should adopt to address the surrender or expiration of a construction permit—or the surrender of a license—issued to a participant in a voluntary time-sharing arrangement. We note that the current policy regarding air-time reapportionment presents the potential for abuse in the LPFM licensing process. For instance, out of a group of tied mutually exclusive applicants, some could enter into a time-share arrangement in order to aggregate their points and prevail over others with the knowledge that not all of the prevailing applicants intend to build and operate their LPFM stations. We solicit comment on ways to reduce the potential for abuse of the air-time reapportionment policy. Should we open a “mini-window” for the filing of applications for the abandoned air-time? Could we limit eligibility to unsuccessful applicants from the same mutually exclusive group in the initial window? Is such an approach consistent with
53. Currently, the Commission requires LPFM stations to meet the same minimum operating hour requirements as full-service NCE FM stations. Like NCE FM stations, LPFM stations must operate at least 36 hours per week, consisting of at least 5 hours of operation per day on at least 6 days of the week. However, while the Commission has mandated time sharing for NCE FM stations that meet the Commission's minimum operating requirements but do not operate 12 hours per day each day of the year, it has not done so for LPFM stations. We seek comment on whether we should extend this mandatory time-sharing to the LPFM service. We believe that doing so could increase the number of broadcast voices and promote additional diversity in radio voices and program services.
54.
55. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
56. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the
57.
58. The
59.
60.
61.
62. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any radio station from the definition of a small business on this basis and therefore may be over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.
63.
64.
65.
66. The passage of the LCRA required the Commission to propose certain changes to its technical rules. The Commission considered maintaining the
67. The LPFM service has created and will continue to create significant opportunities for new small businesses by allowing small businesses to develop LPFM service in their communities. In addition, the Commission generally has taken steps to minimize the impact on existing small broadcasters. To the extent that rules proposed in the
68.
69. Accordingly,
70.
Radio.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 part 73 as follows:
1. The authority for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
2. Revise § 73.807 to read as follows:
Minimum separation requirements for LP250 and LP100 stations, as defined in §§ 73.811 and 73.853, are listed in the following paragraphs. Except as noted below, an LPFM station will not be authorized unless the co-channel, first- and second-adjacent and I.F. channel separations are met. An LPFM station need not satisfy the third-adjacent channel separations listed in paragraphs (a) through (d) in order to be authorized. These third-adjacent channel separations are included for informational purposes only.
Minimum distances for co-channel and first-adjacent channel are separated into two columns. The left-hand column lists the required minimum separation to protect other stations and the right-hand column lists (for informational purposes only) the minimum distance necessary for the LPFM station to receive no interference from other stations assumed to be operating at the maximum permitted facilities for the station class. For second-adjacent channel and intermediate frequency (I.F.) channels, the required minimum distance separation is sufficient to avoid interference received from other stations.
(a)(1) An LP100 station will not be authorized initially unless the minimum distance separations in the following table are met with respect to authorized FM stations, applications for new and existing FM stations filed prior to the release of the public notice announcing an LPFM window period for LP100 stations, authorized LP250 and LP100 stations, LP250 and LP100 station applications that were timely-filed within a previous window, and vacant FM allotments. LPFM modification applications must either meet the distance separations in the following table or, if short-spaced, not lessen the spacing to subsequently authorized stations.
(2) LP100 stations must satisfy the second-adjacent channel minimum distance separation requirements of paragraph (a)(1) of this section with respect to any third-adjacent channel FM station that, as of September 20, 2000, broadcasts a radio reading service via a subcarrier frequency.
(3) An LP250 station will not be authorized initially unless the minimum distance separations in the following table are met with respect to authorized FM stations, applications for new and existing FM stations filed prior to the release of the public notice announcing an LPFM window period for LP250 stations, authorized LP250 and LP100 stations, LP250 and LP100 station applications that were timely-filed within a previous window, and vacant FM allotments. LPFM modification applications must either meet the distance separations in the following table or, if short-spaced, not lessen the spacing to subsequently authorized stations.
(4) LP250 stations must satisfy the second-adjacent channel minimum distance separation requirements of paragraph (a)(3) of this section with respect to any third-adjacent channel FM station that, as of September 20, 2000, broadcasts a radio reading service via a subcarrier frequency.
(5) LP100 stations operating with less than 100 watts effective radiated power (ERP) need not satisfy the I.F. channel minimum separations requirements.
(b)(1) In addition to meeting or exceeding the minimum separations in paragraph (a), new LP100 stations will not be authorized in Puerto Rico or the Virgin Islands unless the minimum distance separations in the following tables are met with respect to authorized or proposed FM stations:
(2) In addition to meeting or exceeding the minimum separations in paragraph (a), new LP250 stations will not be authorized in Puerto Rico or the Virgin Islands unless the minimum distance separations in the following tables are met with respect to authorized or proposed FM stations:
(3) LP 100 stations operating with less than 100 watts ERP need not satisfy the I.F. channel minimum separations requirements.
Minimum distance separations towards “grandfathered” superpowered Reserved Band stations are as specified.
Full service FM stations operating within the reserved band (Channels 201–220) with facilities in excess of those permitted in § 73.211(b)(1) or § 73.211(b)(3) shall be protected by LPFM stations in accordance with the minimum distance separations for the nearest class as determined under § 73.211. For example, a Class B1 station operating with facilities that result in a 60 dBu contour that exceeds 39 kilometers but is less than 52 kilometers would be protected by the Class B minimum distance separations. Class D stations with 60 dBu contours that exceed 5 kilometers will be protected by the Class A minimum distance separations. Class B stations with 60 dBu contours that exceed 52 kilometers will be protected as Class C1 or Class C stations depending upon the distance to the 60 dBu contour. No stations will be protected beyond Class C separations.
(c)(1) In addition to meeting the separations specified in paragraphs (a) and (b), LP100 applications must meet the minimum separation requirements in the following table with respect to authorized FM translator stations, cutoff FM translator applications, and FM translator applications filed prior to the release of the Public Notice announcing the LPFM window period.
(2) In addition to meeting the separations specified in paragraphs (a) and (b), LP250 applications must meet the minimum separation requirements in the following table with respect to authorized FM translator stations, cutoff FM translator applications, and FM translator applications filed prior to the release of the Public Notice announcing the LPFM window period:
(3) LP100 stations operating with less than 100 watts ERP need not satisfy the I.F. channel minimum separations requirements.
(d) Existing LP250 and LP100 stations which do not meet the separations in paragraphs (a) through (c) of this section may be relocated provided that the separation to any short-spaced station is not reduced.
(e) Commercial and noncommercial educational stations authorized under subparts B and C of this part, as well as new or modified commercial FM allotments, are not required to adhere to the separations specified in this rule section, even where new or increased interference would be created.
(f) International considerations within the border zones.
(1) Within 320 km of the Canadian border, LP100 stations must meet the following minimum separations with respect to any Canadian stations:
(2) Within 320 km of the Canadian border, LP250 stations must meet the following minimum separations with respect to any Canadian stations:
(3) Within 320 km of the Mexican border, LP100 stations must meet the following separations with respect to any Mexican stations:
(4) Within 320 km of the Mexican border, LP250 stations must meet the following separations with respect to any Mexican stations:
(5) The Commission will notify the International Telecommunications Union (ITU) of any LPFM authorizations in the US Virgin Islands. Any authorization issued for a US Virgin Islands LPFM station will include a condition that permits the Commission to modify, suspend or terminate without right to a hearing if found by the Commission to be necessary to conform to any international regulations or agreements.
(6) The Commission will initiate international coordination of a LPFM proposal even where the above Canadian and Mexican spacing tables are met, if it appears that such coordination is necessary to maintain compliance with international agreements.
3. Section 73.809 is amended by revising paragraph (a) introductory text to read as follows:
(a) If a full service commercial or NCE FM facility application is filed subsequent to the filing of an LPFM station facility application, such full service station is protected against any condition of interference to the direct reception of its signal that is caused by such LPFM station operating on the same channel or first-adjacent channel and is protected from any condition of interference to the direct reception of its signal caused by such LPFM station operating on an intermediate frequency (IF) channel with more than 100 watts ERP, provided that the interference is predicted to occur and actually occurs within:
4. Revise § 73.811 to read as follows:
(a) LP250 stations:
(1)
(2)
(b) LP100 stations:
(1)
(2)
5. Section 73.816 is amended by revising paragraph (c) to read as follows:
(c)(1) Public safety and transportation permittees and licensees, eligible pursuant to § 73.853(a)(ii), may utilize directional antennas in connection with the operation of a Travelers' Information Service (TIS) provided each LPFM TIS station utilizes only a single antenna with standard pattern characteristics that are predetermined by the manufacturer. In no event may composite antennas (i.e., antennas that consist of multiple stacked and/or phased discrete transmitting antennas) and/or transmitters be employed.
(2) LPFM permittees and licensees may utilize directional antennas for the purpose of preventing interference to a second-adjacent channel station when requesting a waiver of the second-adjacent channel minimum distance separations set forth in § 73.807.
6. Revise § 73.825 to read as follows:
(a) LPFM stations will be authorized on Channels 201 through 220 only if the pertinent minimum separation distances in the following table are met with respect to all full power TV Channel 6 stations.
(b) LPFM stations will be authorized on Channels 201 through 220 only if the pertinent minimum separation distances in the following table are met with respect to all low power TV, TV translator, and Class A TV stations authorized on TV Channel 6.
7. Section 73.827 is amended by redesignating paragraphs (a) and (b) as paragraphs (b) and (c) and adding new paragraph (a) to read as follows:
(a) Interference to the direct reception of FM signals at a translator input. An LPFM station will not be authorized unless it remains at least 2 km from a translator receiving a third-adjacent channel FM station (as compared to the LPFM) directly off-air, and unless it remains at least 10 km from the translator site within the azimuths from −30 degrees to +30 degrees of the azimuth from the translator site to the site of the station being rebroadcast by the translator. The provisions of this subsection will not apply if it can be demonstrated that no actual interference will occur due to an undesired (LPFM) to desired (FM) ratio below 34 dB at all locations, or due to a location at a distance from the translator that satisfies the following: d
8. Section 73.850 is amended by adding paragraph (c) to read as follows:
(c) All LPFM stations, including those meeting the requirements of paragraph (b) of this section, but which do not operate 12 hours per day each day of the year, will be required to share use of the frequency upon the grant of an appropriate application proposing such share time arrangement. Such applications must set forth the intent to share time and must be filed in the same manner as are applications for new stations. They may be filed at any time, but in cases where the parties are unable to agree on time sharing, action on the application will be taken only in connection with a renewal application for the existing station filed on or after June 1, 2019. In order to be considered for this purpose, such an application to share time must be filed no later than the deadline for filing petitions to deny the renewal application of the existing licensee.
(1) The licensee and the prospective licensee(s) shall endeavor to reach an agreement for a definite schedule of periods of time to be used by each. Such agreement must be in writing and must set forth which licensee is to operate on each of the hours of the day throughout the year. Such agreement must not include simultaneous operation of the stations. Each licensee must file the same in triplicate with each application to the Commission for initial construction permit or renewal of license. Such written agreements shall become part of the terms of each station's license.
(2) The Commission desires to facilitate the reaching of agreements on time sharing. However, if the licensees of stations authorized to share time are unable to agree on a division of time, the prospective licensee(s) must submit a statement with the Commission to that effect filed with the application(s) proposing time sharing.
(3) After receipt of the type of application(s) described in subsection (c)(2), the Commission will process such application(s) pursuant to §§ 73.3561 through 73.3568 of this part. If any such application is not dismissed pursuant to those provisions, the Commission will issue a notice to the parties proposing a time-sharing arrangement and a grant of the time-sharing application(s). The licensee may protest the proposed action, the prospective licensee(s) may oppose the protest and/or the proposed action, and the licensee may reply within the time limits delineated in the notice. All such pleadings must satisfy the requirements of section 309(d) of the Act. Based on those pleadings and the requirements of section 309 of the Act, the Commission will then act on the time-sharing application(s) and the licensee's renewal application.
(4) A departure from the regular schedule set forth in a time-sharing agreement will be permitted only in cases where a written agreement to that effect is reduced to writing, is signed by the licensees of the stations affected thereby, and is filed in triplicate by each licensee with the Commission, Attention: Audio Division, Media Bureau, prior to the time of the proposed change. If time is of the essence, the actual departure in operating schedule may precede the actual filing of the written agreement, provided that appropriate notice is sent to the Commission in Washington, DC, Attention: Audio Division, Media Bureau.
9. Section 73.853 is amended by adding paragraph (a)(3), revising paragraph (b) introductory text and adding paragraphs (b)(4) and (c) to read as follows:
(a) * * *
(3) Tribal Applicants, as defined in § 73.7000 of this part, that will provide non-commercial radio services.
(b) Only local applicants will be permitted to submit applications. For the purposes of this paragraph, an applicant will be deemed local if it can certify, at the time of application, that it meets the criteria listed below and if such applicant continues to satisfy the criteria at all times thereafter.
(4) In the case of a Tribal Applicant, as defined in § 73.7000 of this part, the proposed site for the transmitting antenna is located on that Tribal Applicant's “Tribal Lands,” as defined in § 73.7000 of this part.
(c) An LP250 station will be licensed only to applicants that:
(1) Propose transmitter sites located at least 30 kilometers from the reference coordinates for the top 100 radio markets; and (2) currently operate an LP100 station serving the community of license proposed to be served by the LP250 station.
10. Section 73.870 is amended by revising paragraph (a) introductory text to read as follows:
(a) A minor change for an LP250 station authorized under this subpart is limited to transmitter site relocations of 7.1 kilometers or less. A minor change for an LP100 station authorized under this subpart is limited to transmitter site relocations of 5.6 kilometers or less. These distance limitations do not apply to amendments or applications proposing transmitter site relocation to a common location filed by applicants that are parties to a voluntary time-sharing agreement with regard to their stations pursuant to § 73.872 paragraphs
11. Section 73.871 is amended by revising paragraphs (c)(1) and (c)(2) to read as follows:
(c) * * * (1) Filings subject to paragraph (c)(5) of this section, site relocations of 5.6 kilometers or less for LP100 stations;
(2) Filings subject to paragraph (c)(5) of this section, site relocations of 7.1 kilometers or less for LP250 stations;
12. Section 73.872 is amended by revising paragraphs (b) introductory text and (b)(1), and adding paragraph (b)(4) to read as follows:
(b) Except as specified in paragraph (b)(1) below, each mutually exclusive application will be awarded one point for each of the following criteria, based on application certification that the qualifying conditions are met:
(1) Established community presence. An applicant must, for a period of at least 4 years prior to application and at all times thereafter, have been physically headquartered, have had a campus or have had seventy-five percent of its board members residing within 16.1 km (10 miles) of the coordinates of the proposed transmitting antenna for applicants in the top 50 urban markets, and 32.1 km (20 miles) for applicants outside of the top 50 urban markets. If an applicant does not satisfy the requirements of the preceding sentence but was formed jointly by two or more organizations that do meet such requirements and maintains representation on its governing board by at least one member from each such organization, that applicant will be awarded one point for each such formative organization. Applicants claiming a point or more for this criterion must submit the documentation set forth in the application form at the time of filing their applications.
(4) Tribal applicants serving Tribal Lands. The applicant must be a Tribal Applicant, as defined in § 73.7000 of this part, and the proposed site for the transmitting antenna must be located on that Tribal Applicant's “Tribal Lands,” as defined in § 73.7000 of this part.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; notice of availability and opening of comment period.
NMFS has conducted special independent peer review of the December 2010 status review report of the ringed seal (
Comments and information must be received by May 7, 2012.
Send comments to Jon Kurland, Assistant Regional Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by FDMS Docket Number NOAA–NMFS–2010–0258, by any one of the following methods:
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 for public viewing on
NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.
For information on obtaining a copy of the peer review report, see the “Obtaining a Copy of the Peer Review Report” section below.
Tamara Olson, NMFS Alaska Region, (907) 271–5006; Jon Kurland, NMFS Alaska Region, (907) 586–7638; or Marta Nammack, Office of Protected Resources, Silver Spring, MD (301) 713–1401.
On December 10, 2010, NMFS made a 12-month petition finding and proposed to list the Arctic (
We have conducted this special peer review, and are notifying the public of
You may obtain a copy of the peer review report for review:
Via the Federal eRulemaking Portal
By visiting the Internet at:
Documents cited in this notice, including the peer review report, may also be viewed, by appointment, during regular business hours, at the aforementioned address in Juneau, AK (see
Comments and information submitted during the initial comment period on the December 10, 2011 (75 FR 77476), proposed rule should not be resubmitted since they are already part of the record. Comments and information submitted should focus on the information contained in the peer review report listed above. Our final determination of whether Arctic, Okhotsk, Baltic, and Ladoga ringed seals qualify as threatened or endangered under the ESA will take into consideration all comments and information we receive and have previously received during both comment periods. We request that all comments and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Please submit any comments to the
16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; notice of availability and opening of comment period.
NMFS has conducted special independent peer review of the December 2010 status review report of the bearded seal (
Comments and information must be received by May 7, 2012.
Send comments to Jon Kurland, Assistant Regional Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by FDMS Docket Number NOAA–NMFS–2010–0259, by any one of the following methods:
Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal
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 for public viewing on
NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.
For information on obtaining a copy of the peer review report, see the “Obtaining a Copy of the Peer Review Report” section below.
Tamara Olson, NMFS Alaska Region, (907) 271–5006; Jon Kurland, NMFS Alaska Region, (907) 586–7638; or Marta Nammack, Office of Protected Resources, Silver Spring, MD (301) 713–1401.
On December 10, 2010, NMFS made a 12-month petition finding and proposed to list the Beringia DPS and the Okhotsk DPS of the
We have conducted this special peer review, and are notifying the public of the availability of a peer review report that consolidates the comments received. We are also providing the public an opportunity to submit comments or information on the peer review report for 30 days. The comment
You may obtain a copy of the peer review report for review:
Via the Federal eRulemaking Portal
By visiting the Internet at:
Documents cited in this notice, including the peer review report, may also be viewed, by appointment, during regular business hours, at the aforementioned address in Juneau, AK (see
Comments and information submitted during the initial comment period on the December 10, 2011 (75 FR 77496), proposed rule should not be resubmitted since they are already part of the record. Comments and information submitted should focus on the information contained in the peer review report listed above. Our final determination of whether the Beringia and Okhotsk DPSs of bearded seals qualify as threatened or endangered under the ESA will take into consideration all comments and information we receive and have previously received during both comment periods. We request that all comments and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Please submit any comments to the
16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Supplemental proposed rule; request for comments.
NMFS proposes to supplement the regulations that implemented management measures described in Amendment 32 to the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico (Amendment 32) prepared by the Gulf of Mexico Fishery Management Council (Council). After publication of the final rule for Amendment 32, published on February 10, 2012, NMFS identified inconsistencies in the regulatory text regarding the quotas and annual catch limits (ACLs) for “other shallow water grouper” (Other SWG) that need correction. This rule would revise the regulatory text regarding the quotas and ACLs for Other SWG. Additionally, NMFS proposes revisions to improve clarity of the regulations.
Written comments must be received on or before April 23, 2012.
You may submit comments on the supplemental proposed rule identified by “NOAA–NMFS–2011–0135” by any of the following methods:
• Electronic submissions: Submit electronic comments via the Federal e-Rulemaking Portal:
• Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
Instructions: All comments received are a part of the public record and will generally be posted to
To submit comments through the Federal e-Rulemaking Portal:
Comments through means not specified in this rule will not be accepted.
Electronic copies of Amendment 32, which includes a final environmental impact statement (FEIS), a regulatory flexibility analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web Site at
Peter Hood, Southeast Regional Office, NMFS, telephone 727–824–5305; email:
The reef fish fishery of the Gulf of Mexico (Gulf) is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Background
A final rule to implement management measures described in Amendment 32 was published on February 10, 2012 (77 FR 6988). That final rule included measures to:
In planning the publication of the final rule for Amendment 32, NMFS anticipated it would publish before the final rule to implement the ACLs and Accountability Measures Amendment for Reef Fish, Red Drum, Shrimp, and Coral Fisheries of the Gulf of Mexico (Generic ACL Amendment). However, due to a delay in publishing the final rule for Amendment 32, the Generic ACL Amendment final rule published first (76 FR 82044, December 29, 2011) with implementation effective on January 30, 2012. The final rule for the Generic ACL Amendment removed the commercial SWG quotas and commercial SWG ACL and replaced them with separate multi-year commercial Other SWG quotas and stock complex ACLs for Other SWG. Inadvertently, the regulatory text in the Amendment 32 final rule setting the commercial SWG quotas and the commercial ACL for SWG was not modified to reflect the measures established in the Generic ACL Amendment. To correct this inconsistency, the subject supplemental proposed rule would reinstate the commercial Other SWG quotas and the stock complex commercial ACLs for Other SWG, as established in the final rule which implemented the Generic ACL Amendment, as well as remove the commercial SWG quotas and commercial SWG ACL implemented through Amendment 32. In addition, some minor revisions to improve the clarity of the regulations were identified and this rule would correct these issues. First, NMFS proposes to revise the term “other SWG” to read “Other SWG” throughout the 50 CFR part 622 regulations to improve the clarity of the regulations. If implemented, the definition of SWG would be amended to include the definition for Other SWG. In the Gulf, Other SWG would still include black grouper, scamp, yellowfin grouper, and yellowmouth grouper. Second, in two instances in the regulations, sentences within a paragraph are reordered to improve clarity. Third, a sentence is deleted in the regulations, because it is already stated in the preceding paragraph and therefore is redundant.
NMFS requests comments for a period of 15 days regarding these revisions. These revisions will be addressed in a second final rule to implement Amendment 32. No other revisions or changes to the final rule implementing Amendment 32 are included here. All discussion of the management measures contained in Amendment 32, including the AMs, are provided in the proposed rule published on November 2, 2011 (76 FR 67656), the final rule published on February 10, 2012 (77 FR 6988), and in Amendment 32, and are not repeated here.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this supplemental proposed rule is consistent with the FMP, Amendment 32, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this supplemental proposed rule, if implemented, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:
The purpose of this supplemental proposed rule is discussed in the preamble and not repeated here. The Magnuson-Stevens Act provides the statutory basis for this supplemental proposed rule.
This supplemental proposed rule, if implemented, would be expected to directly affect commercial fishing vessels that harvest Other SWG. Commercial harvest of Other SWG in the Gulf is managed under the Grouper-Tilefish Individual Fishing Quota (IFQ) program. The IFQ program manages harvest through shares and allocation. Shares are a percentage of the commercial quota assigned to each IFQ shareholder and allocation is the actual poundage that each IFQ shareholder or allocation holder is given the opportunity to possess, land, or sell, during a given calendar year. Shareholders are the initial recipients of allocation, which can be transferred (sold) to and used by anyone with a valid commercial Gulf reef fish permit. Because anyone with a valid commercial Gulf reef fish permit can obtain and use Other SWG allocation, all commercial Gulf reef fish permit holders could be affected by this supplemental proposed rule. On February 28, 2012, 908 entities possessed a valid or renewable commercial Gulf reef fish permit. In 2010, however, only 282 commercial entities landed Other SWG in the Gulf. Comparable data for 2011 were not available at the time of this assessment.
No other small entities that would be expected to be directly affected by this supplemental proposed rule have been identified.
The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters and recreational services. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. Average receipts data for all entities potentially affected by this rule are not available. The average commercial vessel in the Gulf reef fish fishery is estimated to earn approximately $48,000 (2010 dollars) per year in ex-vessel revenue. Based on this average revenue estimate, all commercial vessels expected to be directly affected by this supplemental proposed rule are determined for the purpose of this analysis to be small business entities.
This supplemental proposed rule, if implemented, would revise the regulatory text regarding the commercial quotas and the stock complex ACLs for Other SWG and would not be expected to reduce profits for a substantial number of small entities. Revision of the commercial quotas for Other SWG would increase the Other SWG commercial quotas by an average of 108,750 lb (49,328 kg), gutted weight (gw), per year over the period 2012–2015, or a total of 435,000 lb (197,312 kg), gw, relative to the status quo. These quota increases would be expected to result in an increase in ex-vessel revenue by an average of approximately $425,000 (2010 dollars) per year, or approximately $1.7 million (2010 dollars) total, for all affected commercial fishing businesses. As a result, this supplemental proposed rule, if implemented, would be expected to increase profits to all directly affected small business entities.
Because this supplemental proposed rule, if implemented, would not be expected to have any direct adverse economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
This supplemental proposed rule does not establish any new reporting, record-keeping, or other compliance requirements.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622, is proposed to be amended as follows:
1. The authority citation for part 622 continues to read as follows:
16 U.S.C. 1801
2. In § 622.2, the definition for “Shallow-water grouper (SWG)” is revised to read as follows:
3. In § 622.20, paragraph (a) introductory text, the second sentence of paragraph (a)(4), paragraphs (a)(5)(i) and (a)(5)(ii), the second sentence of paragraphs (a)(6), (a)(7), (b)(3)(i), and the first sentence of paragraph (b)(6)(i) are revised to read as follows:
(a)
(4) * * * IFQ allocation for the five respective share categories is derived at the beginning of each year by multiplying a shareholder's IFQ share times the annual commercial quota for gag, red grouper, DWG, Other SWG and tilefishes. * * *
(5) * * *
(i)
(B) Red grouper multi-use allocation may be used to possess, land, or sell either red grouper or gag under certain conditions. Red grouper multi-use allocation may be used to possess, land, or sell red grouper only after an IFQ account holder's (shareholder or allocation holder's) red grouper allocation has been landed and sold, or transferred; and to possess, land, or sell gag, only after both gag and gag multi-use allocation have been landed and sold, or transferred. However, if gag is under a rebuilding plan, the percentage of red grouper multi-use allocation is equal to zero.
(ii)
(B) Gag multi-use allocation may be used to possess, land, or sell either gag or red grouper under certain conditions. Gag multi-use allocation may be used to possess, land, or sell gag only after an IFQ account holder's (shareholder or allocation holder's) gag allocation has been landed and sold, or transferred; and to possess, land, or sell red grouper, only after both red grouper and red grouper multi-use allocation have been landed and sold, or transferred. Multi-use allocation transfer procedures and restrictions are specified in paragraph (b)(4)(iv) of this section. However, if red grouper is under a rebuilding plan, the percentage of red grouper multi-use allocation is equal to zero.
(6) * * * For the purposes of the IFQ program for Gulf groupers and tilefishes, once all of an IFQ account holder's DWG allocation has been landed and sold, or transferred, or if an IFQ account holder has no DWG allocation, then Other SWG allocation may be used to land and sell warsaw grouper and speckled hind.
(7) * * * For the purposes of the IFQ program for Gulf groupers and tilefishes, once all of an IFQ account holder's Other SWG allocation has been landed and sold, or transferred, or if an IFQ account holder has no SWG allocation, then DWG allocation may be used to land and sell scamp.
(b) * * *
(3) * * *
(i) * * * The owner or operator of a vessel landing IFQ groupers or tilefishes is responsible for ensuring that NMFS is contacted at least 3 hours, but no more than 12 hours, in advance of landing to report the time and location of landing, estimated grouper and tilefish landings in pounds gutted weight for each share category (gag, red grouper, DWG, Other SWG, tilefishes), vessel identification number (Coast Guard registration number or state registration number), and the name and address of the IFQ dealer where the groupers or tilefishes are to be received. * * *
(6) * * *
(i)
4. In § 622.42, paragraph (a)(1)(iii) introductory text and paragraph (a)(1)(iii)(A) are revised to read as follows:
(a) * * *
(1) * * *
(iii) Shallow-water groupers (SWG) have separate quotas for gag and red grouper and a combined quota for other shallow-water grouper (Other SWG) species (including black grouper, scamp, yellowfin grouper, and yellowmouth grouper), as specified in paragraphs (a)(1)(iii)(A) through (C) of this section. These quotas are specified in gutted weight, that is, eviscerated but otherwise whole.
(A)
(
(
(
5. In § 622.49, paragraphs (a)(3) and (a)(4)(ii)(B) are revised to read as follows:
(a) * * *
(3)
(ii)
(iii) The stock complex ACLs for Other SWG, in gutted weight, are 688,000 lb (312,072 kg) for 2012, 700,000 lb (317,515 kg) for 2013, 707,000 lb (320,690 kg) for 2014, and 710,000 lb (322,051 kg) for 2015 and subsequent years.
(4) * * *
(ii) * * *
(B) If gag are not overfished, and in addition to the measures specified in paragraph (a)(4)(ii)(A) of this section, if gag recreational landings, as estimated by the SRD, exceed the applicable ACLs specified in paragraph (a)(4)(ii)(D) of this section, the AA will file a notification with the Office of the Federal Register to maintain the gag ACT, specified in paragraph (a)(4)(ii)(D) of this section, for that following fishing year at the level of the prior year's ACT, unless the best scientific information available determines that maintaining the prior year's target catch (ACT) is unnecessary.
Administrative Conference of the United States.
Notice of public meeting.
Notice is hereby given of a public meeting of the Committee on Administration and Management of the Assembly of the Administrative Conference of the United States. The meeting will provide an opportunity for the committee to continue its consideration of a draft recommendation regarding the Paperwork Reduction Act. Complete details regarding the committee meeting, the contours of the project, how to attend (including information about remote access and obtaining special accommodations for persons with disabilities), and how to submit comments to the committee can be found in the “About” section of the Conference's Web site, at
Comments may be submitted by email to
The meeting will be held at 1120 20th Street NW., Suite 706 South, Washington, DC 20036.
Emily Schleicher Bremer, Designated Federal Officer, Administrative Conference of the United States, 1120 20th Street NW., Suite 706 South, Washington, DC 20036; Telephone 202–480–2080.
The Committee on Administration and Management will meet to continue its consideration of a draft recommendation on the Paperwork Reduction Act and proposed improvements to its implementation.
Agricultural Marketing Service, USDA.
Notice.
The Agricultural Marketing Service (AMS) announces the availability of approximately $10 million in competitive grant funds for fiscal year (FY) 2012 to increase domestic consumption of agricultural commodities by expanding direct producer-to-consumer market opportunities. Examples of direct producer-to-consumer market opportunities include new farmers markets, roadside stands, community-supported agriculture (CSA) programs, agri-tourism activities, and other direct producer-to-consumer infrastructures. AMS hereby requests proposals from eligible entities within the following categories: Agricultural cooperatives, producer networks, producer associations, local governments, nonprofit corporations, public benefit corporations, economic development corporations, regional farmers market authorities, and Tribal governments. Based on the available funding, AMS will award the most competitive applications that demonstrate measurable, outcome-based strategies that help increase farmers' or agricultural producers' revenue through direct producer to consumer marketing opportunities. The minimum award per grant is $5,000 and the maximum award per grant is $100,000. No matching funds are required.
Applications should be received and accepted,
The 2012 Farmers' Market Promotion Program (FMPP), Agricultural Marketing Service, USDA, Room 4509–South Building, 1400 Independence Avenue SW., Washington, DC, 20250–0269, phone (202) 720–0933.
AMS will only accept application packages submitted via
Ms. Carmen Humphrey, Branch Chief, Marketing Grants and Technical Services Branch, Marketing Services Division, Transportation and Marketing Programs, AMS, USDA, on (202) 720–0933, or via facsimile on (202) 690–4152. State that your request for information refers to Docket No. TM–12–01.
This solicitation is issued pursuant to Section 6 of the Farmer-to-Consumer Direct Marketing Act of 1976 (7 U.S.C. 3001–3006) as amended.
Detailed program guidelines may be obtained at
AMS will grant awards for projects that assist in developing, promoting, and expanding direct marketing of agricultural commodities from farmers to consumers. Eligible FMPP proposals should support marketing entities where agricultural farmers or vendors sell their own products directly to consumers, and the sales of these farm products represent the core business of the entity. Proprietary projects and projects that benefit one agricultural producer or individual will not be considered.
All eligible entities shall be entities owned, operated, and located within one or more of the 50 United States, the District of Columbia, or the U.S. territories.
Additionally, eligible entities must apply for FMPP funds on behalf of direct marketing operators that include two or more agricultural farmers/vendors that produce and sell their own products through a common distribution channel. Individual agricultural producers and sole proprietors, including farmers and farmers market vendors, roadside stand operators, community-supported agriculture participants, and other individual direct marketers are not eligible for FMPP funds.
FMPP grant funds that are requested must support the specific programs and objectives identified in the application. In addition, all applications submitted under FMPP must include measurable, outcome-based strategies that describe how the project will achieve the goals identified in the application. Budget items that do not directly support these objectives will not be funded.
In a coordinated effort to enhance healthy food access in urban and rural areas in the United States, AMS is giving funding priority to the development and expansion of direct producer-to-consumer marketing outlets that sell healthy foods in food deserts (areas with limited access to affordable and nutritious food, particularly areas composed of predominantly lower-income neighborhoods and communities) or low-income areas (where the percentage of the population living in poverty is at least 20 percent). Under FMPP, healthy foods include whole foods such as fruits, vegetables, whole grains, fat free or low-fat dairy, and lean meats that are perishable (fresh, refrigerated, or frozen) or canned as well as nutrient-dense foods and beverages encouraged by the 2010 Dietary Guidelines for Americans (see
These projects will receive five additional points under FMPP if, in addition to meeting all the other established criteria for FMPP projects, they are located in one of the USDA-identified food desert census tracts or they are located in a low-income area (as reported in the most recently completed decennial census published by the U.S. Bureau of the Census). For additional information, see the 2012 FMPP Guidelines at
Not less than 10 percent of the total available funds will be used to support the use of new electronic benefits transfer (EBT) for Federal nutrition programs at farmers markets. To be considered within the 10 percent allotment of funds for EBT, the application narrative must clearly designate the applicant's intent to compete for FMPP funds as a new EBT project. FMPP funds shall be provided to successful proposals that demonstrate a plan to continue to provide EBT card access at one or more farmers markets following the completion of the grant.
When an applicant has multiple project goals, AMS requires that similar proposals be submitted in the application package. Due to the legislative mandate, the Agency differentiates projects as EBT-related or non EBT-related submissions. As such, all non-EBT projects must be submitted in one application and all new or existing EBT-related projects submitted in a second, distinctly separate application. For applicants submitting two or more applications, such applications must not contain the same or substantially the same narrative, logic model, or budget narrative. Each application must include distinctly separate information with an explanation of the goals and corresponding budget requests for each project submitted. Failure to comply with this requirement will result in the rejection of one or all of the applicant's proposals. Visit the 2012 FMPP Guidelines at
While there is no limit to the number of applications that may be submitted, AMS will only award a maximum of one grant per organization in a funding year. Awardees from the FY 2011 grant program will not be considered for FMPP funding in FY 2012.
FMPP reserves the right to reject an application that is incomplete, does not follow the application requirements (i.e., is hand-written or in excess of the required page limitation), or propose activities that do not meet FMPP goals and objectives. Application packages without all of the required information will not be considered. FMPP's award decisions are final.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the FMPP information collection was previously approved by OMB and was assigned OMB control number 0581–0235.
AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA) that requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.
Each applicant must follow the application preparation and submission instructions provided within the 2012 FMPP Guidelines located at
Applicants will have only one submission method for proposals and applications to AMS—electronically through Grants.gov at
Any documents accompanying the application (acceptable written proof of eligibility, proposal narrative, budget(s), and other supporting documents) must be uploaded after item #15 (descriptive title of applicant's project section) on the Grants.gov form SF–424. FMPP prefers that all accompanying documents and support materials be scanned as a single PDF file; however, other acceptable formats include MS–Word (for text documents) and MS–Excel (for spreadsheet documents). Failure to comply with this requirement will result in rejection of the application.
FMPP will not accept corrections or additions to Grants.gov submissions, including corrections submitted by phone, fax, mail, hand-delivery, or electronic mail to AMS. All documentation accompanying each application must be submitted in the Grants.gov application package. The only means of making a correction or addition to a Grants.gov application is by re-submitting a new application prior to the deadline.
AMS/FMPP staff will not extend the application deadline or accept any application after the deadline due to Grants.gov submission errors. Additionally, AMS/FMPP staff does not provide technical assistance with the Grants.gov related issues. Applicants experiencing problems in electronic submission of documentation must request assistance via the Grants.gov Web site, or telephone the Contact Center at 1–800–518–4726. Grants.gov will provide confirmation to the applicant that the application was submitted and received by AMS before the deadline. AMS will email the organization's authorized representative (as listed on the SF–424) an explanation if the application is being rejected.
FMPP is listed in the “Catalog of Federal Domestic Assistance” under number 10.168. Subject agencies, including FMPP, must adhere to Title VI of the Civil Rights Act of 1964, which bars discrimination in all federally assisted programs.
Rural Business-Cooperative Service, USDA.
Notice; correction.
The Agency published a document in the
Contact the applicable USDA Rural Development Energy Coordinator for your respective State as identified in the original NOFA at 77 FR 2948.
The deadline dates for National competitions need to reflect the correct year. The dates in the original NOFA contained the year “2011” rather than “2012”. To clarify, all unfunded eligible grant only and grant and guaranteed loan combination applications received by March 30, 2012, will be competed against other grant only and grant and guaranteed loan combination applications from other States at a final National competition. In addition, all unfunded eligible guaranteed loan only applications received by June 29, 2012, will be competed against other guaranteed loan only applications from other States at a final National competition if the guaranteed loan reserves have not been completely depleted.
In the
1. On page 2951, column 1, the eighteenth line down under C. State and National competitions, “March 30, 2011” is corrected to read “March 30, 2012”.
2. On page 2951, column 2, tenth line down, “June 29, 2011” is corrected to read “June 29, 2012”.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that the North Carolina Advisory Committee (Committee) to the Commission will meet on Wednesday, April 25, 2012, at the Conference Center, Sheraton Hotel, 3121 Highpoint Rd., Greensboro, NC 27407, for the purpose of receiving a briefing on equal educational opportunity and to discuss the Committee's draft report on school discipline. The briefing meeting is scheduled to begin at 1 p.m. and adjourn at approximately 2 p.m. The planning meeting is scheduled to begin at approximately 2 p.m. and adjourn at approximately 3 p.m.
Members of the public are entitled to submit written comments. The comments must be received in the Southern Regional Office of the Commission by May 25, 2012. The address is Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. Persons wishing to email their comments, or to present their comments verbally at the meeting, or who desire additional information should contact Elida Rodriguez, Administrative Assistant, Southern Regional Office, at (404) 562–7000, (or for hearing impaired TDD 800–877–8339), or by email to
Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site,
An application has been submitted to the Executive Secretary of the Foreign-Trade Zones Board (the Board) by the Board of County Commissioners of Sedgwick County, grantee of FTZ 161, requesting temporary/interim manufacturing (T/IM) authority within FTZ 161 at the Siemens Energy, Inc. (Siemens), facilities located in Hutchinson, Kansas. The application was filed on April 2, 2012.
The Siemens facilities (approximately 300 employees, up to 800 nacelles and hubs/year) are located at 1000 Commerce Street (Site 3) and 714 North Corey Road (Site 4) in Hutchinson (Reno County), Kansas. Under T/IM procedures, Siemens has requested authority to produce wind turbine nacelles and hubs (HTSUS 8412.80, 8412.90, 8502.31; duty rates: free, 2.5%). Foreign components that would be used in production (representing up to 50% of the value of the finished nacelles and hubs) include: greases/oils (HTSUS 2710.19), resins (3214.10), plastic/rubber washers and seals (3926.90), weather strips (4008.11), hydraulic hoses (4009.21, 4009.42), rubber gaskets and o-rings (4016.93), vibration dampeners (4016.99), screws/bolts (7318.15), bolt extenders (7318.19), springs (7320.20), clamps and brackets (7326.90), support adapters (7412.20), base metal mountings/fittings/brackets (8302.49), filters (8421.23), grease systems (8479.89), valves (8481.80), bearings (8482.10), gears (8483.40), ring modules (8483.90), nozzles (8487.90), motors (8501.20), generators (8501.64), plates/guides/cables (8503.00, 8544.49), slip rings (8535.90), cable glands (8536.90), electrical panels/boards (8537.10), lamps (8539.49), and sensors (9031.80) (duty rate range: free—9.0%, 1.3¢/kg + 5.7%). T/IM authority could be granted for a period of up to two years.
FTZ procedures could exempt Siemens from customs duty payments on the foreign components used in export production. On its domestic sales, Siemens would be able to choose the duty rates during customs entry procedures that apply to wind turbine nacelles and hubs (duty rate: free, 2.5%) for the foreign inputs noted above.
In accordance with the Board's regulations, Pierre Duy of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations pursuant to Board Orders 1347 and 1480.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the following address: Office of the Executive Secretary, Foreign-Trade Zones Board, U.S. Department of Commerce, Room 2111, 1401 Constitution Ave. NW., Washington, DC 20230. The closing period for their receipt is May 7, 2012.
A copy of the application will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the address listed above, and in the “Reading Room” section of the Board's Web site, which is accessible via
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. This review covers the respondents, Pacific Pipe Public Company Limited (Pacific Pipe) and Saha Thai Steel Pipe (Public) Company, Ltd. (Saha Thai). The Department preliminarily determines that sales of circular welded carbon steel pipes and tubes have been made below normal value (NV) during the March 1, 2010, through February 28, 2011 period of review (POR). The preliminary results are listed below in the section titled “Preliminary Results of Review.” Interested parties are invited to comment on these preliminary results.
Jacqueline Arrowsmith or 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) 482–5255 or (202) 482–4261, respectively.
On March 11, 1986, the Department published in the
On May 26, 2011, the Department issued an antidumping duty questionnaire to Pacific Pipe. On June 14, 2011, Pacific Pipe submitted its Section A response. On June 16, 2011, Pacific Pipe requested an extension of time to respond to Sections B and C of the initial questionnaire until July 1, 2011. On June 29, 2011 Pacific Pipe requested an additional extension to submit its initial response to Sections B and C of the initial questionnaire, which the Department approved by letter on July 1, 2011. On July 11, 2011, Pacific Pipe submitted its responses to Sections B and C.
During the course of Pacific Pipe's only previous review, a new shipper review, no domestic interested party filed a below cost allegation with the Department.
Thus, on October 18, 2011, we issued Section D of the questionnaire to Pacific Pipe. On December 7, 2011, Pacific Pipe submitted its response to Section D. We issued supplemental questionnaires to Pacific Pipe from September 2011 through February 2012 to which Pacific Pipe timely responded.
On May 11, 2011, the Department issued a questionnaire to Saha Thai. On May 24, 2011, Saha Thai requested an extension of time to respond to Section A of the questionnaire; we granted this extension in a letter dated May 25, 2011. On June 13, 2011, Saha Thai submitted its response to Section A of the original questionnaire. On June 28, 2011, the Department granted Saha Thai until July 11, 2011, to submit its response to Sections B, C, and D of the Department's original questionnaire; on July 11, 2011, Saha Thai submitted its response to Sections B, C, and D. On December 21, 2011, the Department issued an additional supplemental questionnaire for Sections A, B, and C. On January 5, 2012, the Department issued an additional extension until January 12, 2012. On December 28, 2011, the Department issued a Section D supplemental questionnaire. On January 9, 2012, we granted Saha Thai an extension until January 26, 2012, to respond to the Section D supplemental questionnaire. On February 6, 2012, the Department issued an additional supplemental questionnaire for Section D. On February 14, 2012, the Department issued an additional supplemental questionnaire for Sections B and C. On February 16, 2012, the Department granted Saha Thai an extension for submitting both the narrative and data portions of the Section B, C, and D supplemental questionnaires and on February 27, 2012, Saha Thai submitted responses. On March 20, 2012, the Department issued an additional supplemental questionnaire for Section D, which is currently due on April 10, 2012. This response will be considered for the final results of review.
The products covered by the antidumping order are certain circular welded carbon steel pipes and tubes from Thailand. The subject merchandise has an outside diameter of 0.375 inches or more, but not exceeding 16 inches. These products, which are commonly referred to in the industry as “standard pipe” or “structural tubing” are hereinafter designated as “pipes and tubes.” The merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085 and 7306.30.5090. Although the HTSUS subheadings are provided for convenience and purposes of U.S. Customs and Border Protection (CBP), our written description of the scope is dispositive.
The POR is March 1, 2010, through February 28, 2011.
To determine whether sales of circular welded carbon steel pipes and tubes from Thailand were made at less than NV, we compared the export price (EP) of both Pacific Pipe's sales and Saha Thai's sales made to unaffiliated customers in the United States to NV, as described below in the “Normal Value” section of this notice. In accordance with section 777A(d)(2) of the Tariff Act of 1930, as amended (the Act), we compared the EP of individual transactions to monthly weighted-average NVs.
Pursuant to section 771(16) of the Act, we determined products described in the “Scope of the Order” section, above, sold by Pacific Pipe and Saha Thai in Thailand during the POR to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We have relied on six criteria to match U.S. sales of subject merchandise to comparison-market sales: grade, size (nominal pipe size), wall thickness, schedule of pipe sold, surface finish, and end finish. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to home market sales of the most similar foreign like product on the basis of the characteristics listed above.
In order to make the product comparisons more accurate, we have made some adjustments to the ordering of codes reported by both Pacific Pipe and Saha Thai for the “grade” characteristic. For more information,
The Department normally uses the date of invoice as the date of sale, as recorded in the exporter's or producer's records kept in the ordinary course of business, unless a different date better reflects the date on which the material terms of sale are established.
For Saha Thai, we preliminarily determine that contract date is the appropriate date of sale for U.S. sales in this administrative review because it best represents the date upon which the final material terms of sale were established. This is consistent with the most recently completed administrative review of this proceeding.
The Department based the price of all U.S. sales of subject merchandise by Pacific Pipe on EP as defined in section 772(a) of the Act because the merchandise was sold by Pacific Pipe to an unaffiliated purchaser in the United States before importation. We calculated EP based on the FOB port price charged to the unaffiliated purchaser in the United States.
Section 772(c)(1)(B) of the Act states that EP should be increased by the amount of any import duties “imposed by the country of exportation which have been rebated, or which have not been collected, by reason of the exportation of the subject merchandise to the United States. * * *.” Pacific Pipe claimed an adjustment to EP for the duties rebated or exempted on its imports of hot-rolled steel coil. In determining whether an adjustment should be made to EP for this rebate or exemption, we look for a reasonable link between the duties imposed and those rebated or exempted. We do not require that the imported input be traced directly from importation through exportation. We do require, however, that the company meet our “two-pronged” test in order for this addition to be made to EP. The first element is that the import duty and its rebate or exemption be directly linked to, and dependent upon, one another; the second element is that the company must demonstrate that there were sufficient imports of the imported material to account for the duty drawback or exemption granted for the export of the manufactured product.
Pacific Pipe did not demonstrate how it met the second prong of our “two-pronged” test. Specifically, despite being given three opportunities to do so, Pacific Pipe did not demonstrate how the imported material was sufficient to account for the total of the import duties rebated or exempted for the export of the manufactured product during the relevant time period. Thus, we are not making an adjustment for a duty drawback rebate or exemption.
Pacific Pipe submitted information about the Blue Corner Rebate and requested a duty drawback adjustment for this program as well on relevant sales. For these preliminary results, we are not making an adjustment to EP because Pacific Pipe did not provide information to show how the Blue Corner Rebate fulfills each of the two prongs of our two-pronged test described above.
We classified all of Saha Thai's sales to its U.S. customers as EP sales because, pursuant to section 772(a) of the Act, we found that Saha Thai is not affiliated with its distributors, which are the first purchasers in the United States. In accordance with section 772(c)(2) of the Act, we made deductions from the gross unit price for foreign inland freight, foreign brokerage and handling, foreign inland insurance, foreign warehousing, ocean freight, lighterage charges, U.S. brokerage and handling charges, and U.S. duties. In our review of the sales contracts, we learned that gross unit price contained freight revenue. We used the information contained in these sales contracts in conjunction with the sales database to derive an invoice-specific freight revenue amount for each transaction where freight revenue was incurred. We are following our normal practice with regard to capping the amount of freight revenue allowed by the amount of the freight expense incurred.
Saha Thai claimed an adjustment to EP for the duties exempted on its imports of hot-rolled steel coil into a bonded warehouse. As explained above, in determining whether an adjustment should be made to EP for this exemption, we have a “two-pronged” test. Saha Thai has provided information that demonstrates that it meets both prongs of our “two-pronged” test. Therefore, for these preliminary results, we are making an upward adjustment to export price for these duty exemptions.
To determine whether there was a sufficient volume of sales of pipes and tubes in the home market to serve as a viable basis for calculating NVs, we
Pacific Pipe did not have sales to affiliates in the home market.
The Department's practice with respect to the use of home market sales to affiliated parties for NV is to determine whether such sales are at arm's-length prices. To examine whether home market sales were made at arm's length, we compared on a product- and level of trade (LOT)-specific basis the starting price of sales to affiliated customers to the starting price of sales to unaffiliated customers, net of all movement charges, direct selling expenses, discounts and packing. Where the prices to the affiliated party were, on average for all products, within a range of 98 to 102 percent of the same or comparable merchandise to all unaffiliated parties, we determined that all of the sales made to that affiliated party were at arm's length.
We examined the cost data for both Pacific Pipe and Saha Thai and determined that our quarterly cost methodology was not warranted. Therefore, we have applied our standard cost methodology, using POR costs based on the reported data, adjusted as described below.
As discussed above, we initiated a sales-below-cost investigation regarding Pacific Pipe's sales in this review. In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of Pacific Pipe's cost of materials and fabrication for the foreign like product, plus amounts for selling, general and administrative (SG&A) expenses, interest expenses, and home market packing costs. Details regarding the calculation of COP, including adjustments made to the COP reported by Pacific Pipe, as well as other calculation details, can be found in the Pacific Pipe Preliminary Analysis Memorandum, with attached SAS program logs and outputs, and the Memorandum from James Balog to Neal M. Halper, “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Results—Pacific Pipe Public Company Limited,” dated concurrently with this notice (Pacific Pipe Preliminary Cost Memorandum).
We revised Pacific Pipe's reported costs as follows. We increased Pacific Pipe's reported general and administrative (G&A) expenses to include relevant expenses incurred by its parent company.
We found that Saha Thai made sales below cost in the most recently completed segment of this proceeding in which Saha Thai was examined, and such sales were disregarded.
We disallowed Saha Thai's reported scrap offset because it included revenues from sales of non-prime merchandise. We increased Saha Thai's reported painting labor costs to reflect the higher of transfer or market prices in accordance with section 773(f)(2) of the Act. We also increased Saha Thai's reported COM for the unreconciled difference between the reported costs and Saha Thai's normal books and records. We revised the numerator of Saha Thai's G&A expense ratio to exclude profit from galvanizing services, duty refunds for hot-rolled coil purchased prior to the POR, and insurance claims for damaged goods related to specific sales. We revised the denominator of the G&A expense ratio to include the cost of sales and services less movement costs, packing expenses, and zinc scrap offsets. For reasons explained in the business proprietary cost memorandum, we set Saha Thai's financial expense ratio to zero. For more information on the changes to Saha Thai's COP,
For both respondents, we compared the revised COP figures to home market prices on a product-specific basis, net of applicable billing adjustments, discounts and rebates, movement charges, selling expenses, and packing, to determine whether home market sales
In accordance with section 773(b) of the Act, where less than 20 percent of a given product was sold at prices less than COP, we disregarded no below-cost sales of that product, because the below-cost sales were not made in “substantial quantities.” However, we disregarded the below-cost sales that: (1) Have been made within an extended period of time (within six months to one year) in substantial quantities (20 percent or more), as defined by section 773(b)(2)(B) and (C) of the Act; and (2) were not made at prices which permit recovery of all costs within a reasonable period of time, as prescribed by section 773(b)(2)(D) of the Act. Accordingly, we determined to disregard certain of Pacific Pipe's and Saha Thai's sales in the calculation of NV because (1) 20 percent or more of a given product was sold at prices less than COP and (2) based on our comparison of prices to weighted-average COP values for the POR, they were made at prices that would not permit recovery of all costs within a reasonable period of time. We used the remaining home market sales for both Pacific Pipe and Saha Thai as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
In accordance with section 773(a)(4) of the Act, we used constructed value (CV) for Pacific Pipe as the basis for NV when there were no above-cost and contemporaneous sales of identical or similar merchandise in the comparison market. We calculated CV in accordance with section 773(e) of the Act. We included the cost of materials and fabrication, SG&A expenses, and profit. In accordance with the Act, we based SG&A expenses and profit on the amounts incurred and realized by Pacific Pipe in connection with production and sale of the foreign like product in the ordinary course of trade for consumption in the home market. For selling expenses, we used the weighted-average home market selling expenses. We made the same adjustments to Pacific Pipe's reported costs as noted in the COP section above.
After disregarding certain home market sales priced below cost, as described above, home market sales of contemporaneous identical and similar products existed that allowed for price-to-price comparisons for all U.S. sales for Saha Thai. Therefore, the Department did not rely on CV for its dumping margin calculations for Saha Thai for these preliminary results.
We calculated NV based on packed prices to unaffiliated customers in the home market. We used Pacific Pipe's adjustments and deductions as reported. We made deductions, where appropriate, for foreign inland freight pursuant to section 773(a)(6)(B) of the Act. We also made adjustments for differences in circumstances of sale (COS) for home market and U.S. credit expenses in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. We deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act, respectively. Finally, where applicable, we made adjustments for differences in costs attributable to differences in the physical characteristics of the sales matched, pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.410.
We calculated NV based on Saha Thai's home market net price. We used Saha Thai's discounts and movement expenses as reported. We made deductions, where appropriate, for foreign inland freight and warehousing expenses. Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, we made a COS adjustment for home market and U.S. credit expenses, as well as U.S. bank charges. We deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act, respectively. Finally, where applicable, we made adjustments for differences in costs attributable to differences in the physical characteristics of the sales matched, pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.410.
Pursuant to section 773(a)(1)(B)(i) of the Act, to the extent practicable, NV is normally the price that is in the home market that is at the same LOT as the EP. The NV LOT is that of the starting-price sale in the comparison market, or when NV is based on CV, that of the sales from which we derive SG&A and profit. For EP, the U.S. LOT is the level of the starting-price sale, which is usually from exporter to importer. To determine whether NV sales are at a different LOT than EP sales, we examine stages in the marketing and selling functions along the chain of distribution between the producer and unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects the price comparability, as manifested in a pattern of consistent price differences between sales at different levels of trade in the country in which NV is determined, we make an LOT adjustment under section 773(a)(7)(A) of the Act and 19 CFR 351.410(c).
In the home market, Pacific Pipe reported its sales to several customer categories through two channels of distribution: Ex-factory and direct shipments from Pacific Pipe to its customer. Pacific Pipe reported that the selling functions in the home market do not differ between the two channels of distribution nor among different customer categories.
For the U.S. market, Saha Thai reported only one LOT for its EP sales.
Our preliminary analysis of Saha Thai's responses indicates selling functions do not vary significantly by customer category
Pursuant to section 773A(a) of the Act and 19 CFR 351.415, we made currency conversions for Pacific Pipe and Saha Thai sales based on the daily exchange rates in effect on the dates of the relevant U.S. sales as certified by the Federal Reserve Bank of New York.
As a result of our review, we preliminarily determine the following weighted-average dumping margin exists for the period March 1, 2010, through February 28, 2011.
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. For assessment purposes, where Pacific Pipe or Saha Thai reported the entered value for its sales, we will calculate importer-specific (or customer-specific)
The following deposit requirements will be effective for all shipments of circular welded carbon steel pipes and tubes from Thailand entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the company under review will be the rate established in the final results of this review (except, if the rate is zero or
We will disclose the calculations used in our analysis to parties in this review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of the publication of this notice in the
Interested parties are invited to comment on the preliminary results of this review. Unless extended by the Department, interested parties must submit case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, which must be limited to issues raised in the case briefs, must be filed not later than five days after the time limit for filing case briefs.
We intend to issue the final results of this administrative review, including the results of our analysis of issues raised in the written comments, within 120 days of publication of these preliminary results in the
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) 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 doubled antidumping duties.
These preliminary results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Sergio Balbontin or Yang Jin Chun, 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 or (202) 482–5760, respectively.
On December 6, 2011, the Department of Commerce (the Department) published in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time period to a maximum of 180 days after the date on which the preliminary results are published.
We determine that it is not practicable to complete the final results of these reviews within the current time limits because we need additional time to consider new allegations in both the PRC and Korea proceedings. Section 751(a)(3)(A) of the Tariff Act of 1930 (“Act”) allows us to extend the deadline for the final results of these reviews to June 3, 2012, which is 180 days after the date of the publication of the
This notice is published in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
On December 1, 2011, the Department of Commerce (“Department”) initiated the second five-year (“sunset”) review of the antidumping duty order on foundry coke products (“foundry coke”) from the People's Republic of China (“PRC”) pursuant to section 751(c) of the Tariff Act of 1930, as amended (“Act”). On the basis of a notice of intent to participate, and an adequate substantive response filed on behalf of the domestic interested parties,
Jennifer Moats and Ricardo Martinez Rivera, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–5047 and (202) 482–4532, respectively.
On December 1, 2011, the Department initiated the second sunset review of the antidumping duty order on foundry coke from the PRC,
We received a complete substantive response from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). We received no responses from respondent interested parties. As a result, the
The product covered under the antidumping duty order is coke larger than 100 mm (4 inches) in maximum diameter and at least 50 percent of which is retained on a 100 mm (4 inch) sieve, of a kind used in foundries. The foundry coke products subject to the antidumping duty order were classifiable under subheading 2704.00.00.10 (as of Jan 1, 2000) and are currently classifiable under subheading 2704.00.00.11 (as of July 1, 2000) of the
All issues raised in this review are addressed in the “Issues and Decision Memorandum for the Final Results of the Expedited Second Sunset Review of the Antidumping Duty Order on Foundry Coke from the People's Republic of China” (“Decision Memorandum”) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, dated concurrently with and hereby adopted by this notice. The issues discussed in the Decision Memorandum include (1) the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the
We determine that revocation of the
This notice also serves as the only reminder to parties subject to APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return of destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This sunset review and notice are in accordance with sections 751(c), 752, and 771(i)(1) of the Act.
National Institute of Standards and Technology, Commerce.
Notice.
The National Institute of Standards and Technology (NIST) is forming a Work Group (WG) to develop proposals to revise the current Taximeters Code in NIST Handbook 44 (HB 44),
A preliminary web-based meeting or teleconference will be held on Wednesday, May 23, 2012, from 1:30 p.m. to 3:30 p.m. Eastern time. This meeting is intended to be a precursor to any subsequent face-to-face meeting and will serve to provide further information and orientation regarding the objectives of the WG. To register for this preliminary meeting, please submit your full name, email address, and phone number to Mr. John Barton by April 30, 2012, using the contact information provided below.
The preliminary meeting will be held using either a teleconference or a web-based format where participants will join the meeting remotely by telephone and/or computer. Once registered, participants will receive login and/or call-in instructions via email.
Mr. John Barton, NIST, Office of Weights and Measures, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899–2600. You may also contact Mr. Barton by telephone (301) 975–4002 or by email at
The formation of this WG is intended to bring together government officials and representatives of business, industry, trade associations, and consumer organizations on the subject of standards and test procedures used in the testing of commercial measuring devices and systems by regulatory officials and service companies. NIST participates to promote uniformity among the states in laws, regulations, methods, and testing equipment that comprises the regulatory control of commercial weighing and measuring devices and systems and other trade and commerce issues.
The WG will review existing requirements and test procedures currently referenced in HB 44 Section 5.54., Taximeters Code, and propose changes as needed. They will also identify gaps between the Code and technologies currently in use in taxi applications. Additionally, the WG will identify and develop proposed modifications to HB 44 regarding inspection procedures used by regulatory weights and measures officials. These changes will be presented as proposals through the National Conference on Weights and Measures (NCWM).
Included among the topics to be discussed by the WG for current and emerging device technologies used in commercial distance measuring systems are: Metrology laboratory standards and test procedures, uncertainties,
National Institute of Standards and Technology, Commerce.
Notice of Open Meeting.
NIST announces that the Manufacturing Extension Partnership (MEP) Advisory Board, National Institute of Standards and Technology (NIST) will hold an open meeting on Sunday, May 6, 2012, from 9 a.m. to 5 p.m.
The meeting will convene on Sunday, May 6, 2012, at 9 a.m. and will adjourn at 5 p.m. the same day.
The meeting will be held at the Orlando World Center Marriott Resort and Convention Center, 8701 World Center Drive, Orlando, Florida 32821.
Please see admission instructions in the
Karen Lellock, Manufacturing Extension Partnership, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, Maryland 20899–4800, telephone number (301) 975–4269.
This meeting is being held in conjunction with MEP's Manufacturing Innovations 2012 Conference in Orlando, Florida. The MEP Advisory Board (Board) is composed of 10 members, appointed by the Director of NIST. MEP is a unique program consisting of centers across the United States and Puerto Rico with partnerships at the state, federal, and local levels. The Board works closely with MEP to provide input and advice on MEP's programs, plans, and policies. This meeting will focus on (1) discussions with local MEP Board members, (2) a national manufacturing strategy, and (3) an update on MEP's workforce initiatives. The agenda may change to accommodate other Board business.
Individuals and representatives of organizations who would like to offer comments and suggestions related to the MEP Advisory Board's business are invited to request a place on the agenda. Approximately 15 minutes will be reserved for public comments at the beginning of the meeting. Speaking times will be assigned on a first-come, first-served basis. The amount of time per speaker will be determined by the number of requests received but is likely to be no more than three to five minutes each. Questions from the public will not be considered during this period. Speakers who wish to expand upon their oral statements, those who had wished to speak but could not be accommodated on the agenda, and those who were unable to attend in person are invited to submit written statements to the MEP Advisory Board, National Institute of Standards and Technology, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, Maryland 20899–4800, or via fax at (301) 963–6556, or electronically by email to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS (Assistant Regional Administrator), has made a preliminary determination that an Exempted Fishing Permit (EFP) application submitted by the Northeast Fisheries Science Center (NEFSC) contains all of the required information and warrants further consideration. The EFP would exempt participating vessels from the following types of fishery regulations: Minimum fish size restrictions; fish possession limits; prohibited fish species, not including species protected under the Endangered Species Act; and gear-specific fish possession restrictions for the purpose of collecting fishery dependent catch data and biological samples.
Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on EFP applications.
Comments must be received on or before April 23, 2012.
You may submit written comments by any of the following methods:
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Brett Alger, Fisheries Management Specialist, 978–675–2153,
NEFSC submitted a complete application for an EFP on February 28, 2012, to enable data collection activities that the regulations on commercial fishing would otherwise restrict. The EFP
The NEFSC Study Fleet Program was established in 2002 to more fully characterize commercial fishing operations and to leverage sampling opportunities to augment NMFS data collection programs. Participating vessels are contracted by NEFSC to collect tow by tow catch and environmental data, and to fulfill specific biological sampling needs identified by NEFSC. To collect these data, the NEFSC Study Fleet Program has obtained an EFP to secure the necessary waivers needed by the vessels to obtain fish that would otherwise be prohibited by regulations.
Crew trained by the NEFSC Study Fleet Program in methods that are consistent with the current NEFSC observer protocol, while under fishing operations, would sort, weigh, and measure fish that are to be discarded. An exemption from minimum fish size restrictions; fish possession limits; prohibited fish species, not including species protected under the Endangered Species Act; and gear-specific fish possession restrictions for at-sea sampling is required because some discarded species would be on deck slightly longer than under normal sorting procedures.
Participating vessels would also be authorized to retain and land, in limited situations for research purposes only, fish that do not comply with fishing regulations. The vessels would be authorized to retain specific amounts of particular species in whole or round weight condition, in marked totes, which would be delivered to Study Fleet Program technicians. The NEFSC would require participating vessels to obtain written approval from the NEFSC Study Fleet Program prior to landing any fish in excess of possession limits and/or below minimum size limits to ensure that the landed fish do not exceed any of the Study Fleet Program's collection needs, as detailed below. None of the landed biological samples from these trips would be sold for commercial use or used for any other purpose other than scientific research.
The table below details the regulations from which the participating vessels would be exempt. The participating vessels would be required to comply with all other applicable requirements and restrictions specified at 50 CFR part 648, unless specifically exempted in this EFP. All catch of stocks allocated to Sectors by vessels on a Sector trip would be deducted from the Sector's Annual Catch Entitlement for each Northeast multispecies stock regardless of what fishery the vessel was participating in when the fish was caught.
Haddock-whole fish would be retained for maturity and fecundity research. The haddock retained would not exceed 30 fish per trip, or 360 fish for all trips. The maximum weight of haddock on any trip would not exceed 120 lb (54.43 kg) total weight per trip, and would not exceed 1,440 lb (653.17 kg) for all trips combined.
Yellowtail Flounder—whole fish would be retained for maturity, fecundity, bioelectrical impedance analysis (BIA), food habits, and genetic research. The yellowtail flounder retained would not exceed 120 fish per month from each of the three stock areas (Gulf of Maine (GOM), Georges Bank (GB), Southern New England/Mid-Atlantic (SNE/MA)), or 1,800 fish total from each stock area for all trips. The maximum weight on any trip would not exceed 50 lb (22.70 kg) total weight, and would not exceed 1,500 lb (680.39 kg) for all trips combined.
Summer Flounder—whole fish would be retained for maturity, fecundity, BIA, food habits, and genetic research. The summer flounder retained would not exceed 120 fish per month from each of the three stock areas (GOM, GB, SNE/MA), or 1,800 fish total from each stock area for all trips. The maximum weight on any trip would not exceed 100 lb (45.36 kg) total weight, and would not exceed 3,000 lb (1,360.78 kg) for all trips combined.
Winter Flounder—whole fish would be retained for maturity, fecundity, BIA, food habits, and genetic research. The winter flounder retained would not exceed 120 fish per month from each of the three stock areas (GOM, GB, SNE/MA), or 1,800 fish total from each stock area for all trips. The maximum weight on any trip would not exceed 75 lb (34.02 kg) total weight, and would not
Spiny Dogfish—whole fish would be retained for reproductive biology research. The spiny dogfish retained would not exceed 50 fish per month from each of the two stock areas (GOM, SNE/MA), or 1,200 fish total for all trips. The maximum weight on any trip would not exceed 390 lb (176.9 kg), and would not exceed 9,360 lb (4,245.62 kg) total for all trips.
Monkfish—whole fish would be retained for maturity and fecundity research. Monkfish retained would not exceed 10 fish per trip, or 120 fish total for all trips. The maximum weight on any trip would not exceed 100 lb (45.36 kg) total weight, and would not exceed 1,200 lb (544.31 kg) for all trips combined.
Cod—whole fish would be retained for tagging demonstrations and educational purposes. Cod to be retained would not exceed 15 fish per trip, or 60 cod for all trips. The maximum weight on any trip would not exceed 150 lb (68.04 kg) total weight, and would not exceed 600 lb (272.16 kg) for all trips combined.
Barndoor Skate—whole and, in some cases, live skates would be retained for age and growth research and species confirmation. The barndoor skates retained would not exceed 20 fish per 3-month period, or 80 skates total for all trips. The maximum weight on any trip would not exceed 75 lb (34.02 kg) total weight, and would not exceed 300 lb (136.08 kg) total for all trips combined.
Thorny Skate—whole and, in some cases, live skates would be retained for age and growth research and species confirmation. Thorny skates retained would not exceed 20 fish per 3-month period, or 80 skates total for all trips. The maximum weight on any trip would not exceed 75 lb (34.02 kg) whole weight, and would not exceed 300 lb (136.08 kg) total for all trips combined.
Black Sea Bass—whole fish would be retained for examination of seasonal and latitudinal patterns in energy allocation. This effort is in support of an ongoing study at the NEFSC to evaluate BIA to measure fish energy density and reproductive potential for stock assessment. Black sea bass retained would not exceed 75 fish per trip or 300 black sea bass total for all trips. The maximum weight on any trip would not exceed 250 lb (113.40 kg) total weight, and would not exceed 1,000 lb (453.59 kg) total for all trips combined.
Atlantic wolffish—whole fish would be retained for maturity, fecundity, and life history research. Atlantic wolffish retained would not exceed 30 fish per month or 360 fish total for all trips. The maximum weight on any trip would not exceed 120 lb (54.4 kg) and would not exceed 3,000 lb (1,360.8 kg) total for all trips combined.
Cusk—whole fish would be retained for maturity, fecundity, and life history research. Cusk retained would not exceed 30 fish per month or 360 fish total for all trips. The maximum weight on any trip would not exceed 100 lb (45.4 kg) and would not exceed 2,300 lb (1,043.3 kg) total for all trips combined.
If approved, the applicant may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impact that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) will hold a 3-day meeting from Tuesday through Thursday, April 24–April 26, 2012, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Tuesday, April 24th, Wednesday, April 25th and Thursday, April 26th beginning at 9 a.m. on Tuesday, and 8:30 a.m. on Wednesday and Thursday.
The meeting will be held at the Hilton Hotel, 20 Coogan Boulevard, Mystic, CT 06355–1900; telephone: (860) 572–0731; fax: (860) 572–0328.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
Following introductions and any announcements, brief reports will be presented by the Council Chairman and Executive Director, NOAA Fisheries Regional Administrator (Northeast Region), Northeast Fisheries Science Center and Mid-Atlantic Fishery Management Council liaisons, as well as NOAA General Counsel, representatives of the U.S. Coast Guard and the Atlantic States Marine Fisheries Commission, and staff from the Vessel Monitoring Systems Operations and NOAA's Law Enforcement offices. During this period, the Council will receive an overview of activities related to the development of a Standard Bycatch Reporting Methodology amendment and the possible establishment of a joint Mid-Atlantic and New England Council Committee. That discussion will be followed by a review of any experimental fishery permit applications that have been made available since the January 2012 Council meeting.
Prior to a lunch break, the Council will discuss revising its list of management priorities for 2012 in the context of an Endangered Species Act listing for Atlantic sturgeon and the Council resources that may be required to address that issue.
Following a lunch break, the Council may revise its policies concerning procedures for advisory panel and plan development team operations. The Sea Scallop Committee will ask for approval of research priorities to be used in soliciting proposals funded through the NEFMC's sea scallop research set-aside program. During this report, the Northeast Fisheries Science Center will present information about future plans for the federal sea scallop survey, including the integration of Habcam (towed underwater camera) results with existing survey technologies. The Enforcement Committee will provide recommendations and ask for approval of comments related to: Amendment 5 to the Atlantic Herring Fishery Management Plan (FMP), NOAA's revised enforcement priorities, issues related to coral reef protection, sector landings monitoring and correspondence to the Secretary of Commerce requesting NOAA General Counsel/Northeast participation in
The second day of the meeting will begin with an overview of the status of Atlantic sturgeon and the implications of its Endangered Species Act listing for NEFMC fishery management plans, as well as other protected species-related updates. The Monkfish Committee will report next and summarize its discussions about potential remedies to the bycatch of Atlantic sturgeon in the monkfish fishery. There also will be an update on progress to develop Amendment 6 to the Monkfish FMP, an action that will include a catch share management alternative. Prior to a lunch break, representatives of the Northeast Fisheries Science Center will summarize the recent assessment and data updates to 13 Northeast groundfish stocks. The Council's Scientific and Statistical Committee will add to this information by reporting on its review of additional information relating to the status of Gulf of Maine cod. The committee also will provide recommendations for fishing year 2013 Acceptable Biological Catches for a number of stocks in the multispecies complex. The day will conclude with a report from the Groundfish Committee. That group will continue discussions about the management of Gulf of Maine cod, provide an update on the committee's efforts to develop a number of solutions and remedies concerning the sector management program and update the Council about other committee activities.
The final day of the Council meeting will begin with a report from the Whiting Committee. It will review the recent public hearing comments and then approve final action on the management measures to be included in Amendment 19 to the Northeast Multispecies FMP. The action would establish annual catch limits and accountability measures for stocks of red hake, silver hake and offshore hake. The Habitat Committee will ask for approval of deep sea coral management alternatives to be analyzed further for potential inclusion in Essential Fish Habitat (EFH) Omnibus 2. Following a lunch break, there will be a report on the Spiny Dogfish Fishery Management Plan during which the Council will be asked to approve a range of alternatives for inclusion in the Draft Environmental Impact Statement for Amendment 3 to the plan. The document will be the subject of public review and further decision-making by the Mid-Atlantic and New England Councils. The day will conclude with an update on the development of Draft Amendment 5 to the Herring FMP and its Draft Environmental l Impact Statement including a review of comments received during the Amendment 5 public hearings held in March, 2012 and the Amendment 5 timeline and schedule for completion. The Council also may address any other outstanding business that related to this agenda.
Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during the meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that that a permit has been issued to Dorian Houser, Ph.D., National Marine Mammal Foundation, 2240 Shelter Island Drive, #200, San Diego, CA 92106, to conduct scientific research on cetaceans stranded or in rehabilitation facilities in the U.S.
The permit and related documents are available for review upon written request or by appointment in the following offices: See
Laura Morse or Amy Sloan (301)427–8401.
On January 18, 2012, notice was published in the
Researchers may take auditory evoked potential measurements with suction cup sensors or subcutaneous pin electrodes on up to 15 individuals of each species of cetacean. Research will occur in waters or on beaches in the U.S. and in rehabilitation facilities in the U.S. The permit is valid through April 1, 2017.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Documents may be reviewed in the following locations:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376;
Northwest Region, NMFS, 7600 Sand Point Way NE., BIN C15700, Bldg. 1, Seattle, WA 98115–0700; phone (206) 526–6150; fax (206) 526–6426;
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802–1668; phone (907) 586–7221; fax (907) 586–7249;
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802–4213; phone (562) 980–4001; fax (562) 980–4018;
Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Room 1110, Honolulu, HI 96814–4700; phone (808) 944–2200; fax (808) 973–2941;
Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978) 281–9328; fax (978) 281–9394; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727) 824–5312; fax (727) 824–5309.
Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice.
This notice announces the selection of the authors for the report of the next National Climate Assessment by the National Climate Assessment and Development Advisory Committee (NCADAC). The next National Climate Assessment will consist of 28 chapters, each drafted by a set of Convening Lead Authors and Lead Authors. The list of these by chapter can be found on the Web page
Dr. Cynthia Decker, Designated Federal Official, National Climate Assessment and Development Advisory Committee, NOAA OAR, R/SAB, 1315 East-West Highway, Silver Spring, Maryland 20910. (Phone: 301–734–1156, Fax: 301–713–1459, Email:
The National Climate Assessment and Development Advisory Committee was established in December 2010. The committee's mission is to synthesize and summarize the science and information pertaining to current and future impacts of climate change upon the United States; and to provide advice and recommendations toward the development of an ongoing, sustainable national assessment of global change impacts and adaptation and mitigation strategies for the Nation. Within the scope of its mission, the committee's specific objective is to produce a National Climate Assessment.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202–3259.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 2/3/2012 (77 FR 5495–5496) and 2/10/2012 (77 FR 7137–7138), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to furnish the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. The action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Addition to and Deletion from the Procurement List.
The Committee is proposing to add a product to the Procurement List that will be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities and to delete a service previously provided by such agency.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202–3259.
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice will be required to procure the product listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will furnish the product to the Government.
2. If approved, the action will result in authorizing small entities to furnish the product to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the product proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following product is proposed for addition to Procurement List for production by the nonprofit agency listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the service proposed for deletion from the Procurement List.
The following service is proposed for deletion from the Procurement List:
Department of Defense, DoD.
Establishment of Federal Advisory Committee.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and 41 CFR 102–102–3.50(d) (agency authority), the Department of Defense gives notice it is establishing the Defense Legal Policy Board (hereafter referred to as “the Board”).
The Board is a discretionary federal advisory committee that shall provide the Secretary of Defense and the Deputy Secretary of Defense independent, informed advice, opinions, and recommendations concerning matters referred to the Board relating to legal and related legal policy matters within the Department of Defense.
The Board, at the direction of the Secretary of Defense, the Deputy Secretary of Defense, or the General Counsel of the Department of Defense, and according to DoD policy, shall examine and advise on legal and related legal policy matters within DoD, the achievement of DoD policy goals through legislation and regulations, and other assigned matters. In carrying out its duties, the Board shall consider, as appropriate:
a. Issues and policies relating to legal and related matters;
b. The interplay between laws and regulations, on the one hand, and the achievement of policy goals, on the other;
c. Identifying and evaluating the process for compliance with such laws and regulations;
d. Proposing necessary revisions to the Department's policy goals, and to laws, regulations or procedures intended to achieve such goals; and
e. Any other research and analysis of topics raised by the Secretary of Defense, the Deputy Secretary of Defense, or the General Counsel of the Department of Defense.
The Secretary of Defense, the Deputy Secretary of Defense, or the General Counsel of the Department of Defense may act upon the Board's advice and recommendations. The Board shall be composed of not more than 15 members, who have distinguished backgrounds in law, investigations, military command, governmental organizations, or related fields.
Board members appointed by the Secretary of Defense, who are not full-
Board members, with the approval of the Secretary of Defense, may serve a term of service on the Board of two years; however, no member, unless authorized by the Secretary of Defense, shall serve more than two consecutive terms of service on the Board. Regardless of the individual's approved term of service, all appointments to the Board shall be renewed on an annual basis.
The Secretary of Defense shall select and appoint the Board's chairperson from the total membership. With the exception of travel and per diem for official travel, Board members shall serve without compensation.
Board members are appointed to provide advice on behalf of the government on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest.
The Chairpersons of the Defense Business Board, the Defense Health Board, the Defense Policy Board, and the Defense Science Board shall serve as non-voting
These subcommittees, task groups, or working groups shall operate under the provisions of the FACA, the Government in the Sunshine Act of 1976, other governing Federal statutes and regulations, and governing DoD policies and procedures, including 41 CFR 102–3.35 and DoD Instruction 5105.04, sections E2.22, E3.2.2, and E3.12.
Such subcommittees, task groups, or working groups shall not work independently of the chartered Board, and shall report all their recommendations and advice to the Board for full deliberation and discussion. Subcommittees have no authority to make decisions on behalf of the chartered Board; nor can any subcommittee or its members update or report directly to the Department of Defense or any Federal officers or employees.
All subcommittee members shall be appointed in the same manner as the Board members; that is, the Secretary of Defense shall appoint subcommittee members even if the member in question is already a Board member. Subcommittee members, with the approval of the Secretary of Defense, may serve a term of service on the subcommittee of two years; however, no member shall serve more than two consecutive terms of service on the subcommittee.
Subcommittee members, if not full-time or part-time government employees, shall be appointed to serve as experts and consultants under the authority of 5 U.S.C. 3109, and to serve as special government employees, whose appointments must be renewed on an annual basis. With the exception of travel and per diem for official travel, subcommittee members shall serve without compensation.
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703–692–5952.
The Board shall meet at the call of the Board's Designated Federal Officer or Alternate Designated Federal Officer, in consultation with the Chairperson and the General Counsel of the Department of Defense. The estimated number of Board meetings is two per year.
In addition, the Designated Federal Officer is required to be in attendance at all Board and subcommittee meetings for the entire duration of each and every meeting; however, in the absence of the Designated Federal Officer, the Alternate Designated Federal Officer shall attend the entire duration of the Board or subcommittee meeting.
Pursuant to 41 CFR 102–3.105(j) and 102–3.140, the public or interested organizations may submit written statements to the Defense Legal Policy Board's membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of Defense Legal Policy Board.
All written statements shall be submitted to the Designated Federal Officer for the Defense Legal Policy Board, and this individual will ensure that the written statements are provided to the membership for their consideration. Once the Board's charter has been filed contact information for the Defense Legal Policy Board's Designated Federal Officer can be obtained from the GSA's FACA Database—
The Designated Federal Officer, pursuant to 41 CFR 102–3.150, will announce planned meetings of the Defense Legal Policy Board. The Designated Federal Officer, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question.
Federal Student Aid, Department of Education.
Notice.
The Secretary announces the annual updates to the ICR plan formula for 2011. Under the William D. Ford Federal Direct Loan (Direct Loan) Program, borrowers may choose to repay their loans (Direct Subsidized Loans, Direct Unsubsidized Loans, Direct PLUS Loans made to graduate or professional students, and Direct Consolidation Loans) under the ICR plan, which bases the repayment amount on the borrower's income, family size, loan amount, and the interest rate applicable to each loan. Each year, we adjust the formula for calculating a borrower's ICR payment to reflect changes due to inflation. This notice contains the adjusted income percentage factors for 2011, examples of how the calculation of the monthly ICR amount is performed, a constant multiplier chart for use in performing the calculations, and charts showing sample repayment amounts based on the adjusted ICR plan formula. The adjustments for the ICR plan formula contained in this notice are effective for the period from July 1, 2011 to June 30, 2012.
Ian Foss, U.S. Department of Education, 830 1st St. NE., Room 114I1, Washington, DC 20202. Telephone: (202) 377–3681 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print,
Direct Loan Program borrowers may choose to repay their Direct Subsidized Loans, Direct Unsubsidized Loans, Direct PLUS Loans made to graduate or professional students, and Direct Consolidation Loans under the ICR plan. This notice contains the following four attachments:
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In Attachment 1, we have updated the income percentage factors to reflect changes based on inflation. Specifically, we have revised the table of income percentage factors by changing the dollar amounts of the incomes shown by a percentage equal to the estimated percentage change in the Consumer Price Index for all urban consumers from December 2010 to December 2011. In Attachment 2, we provide a constant multiplier chart for a 12-year loan amortization. Further, in Attachment 3, we provide examples of monthly repayment amount calculations. Finally, in Attachment 4, we provide two charts that show sample repayment amounts for single and married or head-of-household borrowers at various income and debt levels based on the updated income percentage factors.
The updated income percentage factors reflected in Attachment 1 may cause a borrower's payments to be lower than they were in prior years (even if the borrower's income remains the same as the prior year). However, the revised repayment amount more accurately reflects the impact of inflation on a borrower's current ability to repay.
You may also access documents of the Department published in the
20 U.S.C. 1087
General notes about the examples in this attachment:
• The interest rates used in the examples are for illustration only. Actual interest rates vary depending on loan type and when a loan was first disbursed.
• In the examples, the Poverty Guideline amounts used are from the 2011 U.S. Department of Health and Human Services (HHS) Poverty Guidelines for the 48 contiguous States
• The “constant multiplier” included in each example is a factor used to calculate amortized payments at a given interest rate over a fixed period of time. Refer to the constant multiplier chart provided in Attachment 2 to this notice to determine the constant multiplier that should be used for a specific interest rate. If an interest rate is not listed in the constant multiplier chart in Attachment 2, use the next highest rate for estimation purposes.
• All examples use an income percentage factor corresponding to the borrower's adjusted gross income (AGI). If the AGI is not listed in the income percentage factors table in Attachment 1, calculate the applicable income percentage factor for the AGI by following the instructions under the Interpolation heading later in this attachment.
• For married borrowers, the outstanding balance on the loans of each borrower and both borrowers' AGIs are added together to determine the ICR payment amount. The amount of each payment applied to each borrower's Direct Loan debt is the proportion of the payments that equals the same proportion as that borrower's debt to the total outstanding balance. Each borrower is billed separately. For example, if a married couple has a total outstanding Direct Loan debt of $60,000, $40,000 of which belongs to one spouse, and $20,000 of which belongs to the other spouse, 67 percent of the monthly ICR payment would be apportioned to the spouse with the outstanding debt of $40,000, with the remaining 33 percent of the monthly ICR payment being apportioned to the spouse with $20,000 of debt. To take advantage of a joint ICR payment, married couples need not file taxes jointly; they may file separately and subsequently provide the other spouse's tax information.
This example assumes that the borrower is a single with no dependents, and has $15,000 in Direct Subsidized and Unsubsidized Loans. The interest rate on these loans is 6.80 percent, and the borrower has an AGI of $39,201.
• 0.122130 × $15,000 = $1,831.95
• 88.77 × $1,831.95 ÷ 100 = $1,626.22
• $39,201 − $10,890 = $28,311
• $28,311 × 0.20 = $5,662.20
• $1,626.22 ÷ 12 = $135.52
In this example, the borrower is married and has no dependents, other than a spouse. The borrower has a Direct Loan balance of $10,000, and the spouse has a Direct Loan balance of $15,000. The interest rate on all of the loans is 6.80 percent.
The borrower and spouse have a combined AGI of $74,082 and are repaying their loans jointly under the ICR plan (for general information regarding joint ICR payments for married couples, see the fifth bullet under the heading entitled “General notes about the examples” in this attachment).
• $10,000 + $15,000 = $25,000
• 0.122130 × $25,000 = $3,053.25
• 109.40 × $3,053.25 ÷ 100 = $3,340.26
• $74,082 − $14,710 = $59,372
• $59,372 × 0.20 = $11,874.40
• $3,340.26 ÷ 12 = $278.36
This example assumes that the borrower is single with no dependents and has $15,000 in Direct Subsidized and Unsubsidized Loans. The interest rate on all of the loans is 6.80 percent, and the borrower's AGI is $31,210.
• 0.122130 × $15,000 = $1,831.95
• 80.33 × $1,831.95 ÷ 100 = $1,471.61
• $31,210 − $10,890 = $20,320
• $20,320 × 0.20 = $4,064
• $1,471.61 ÷ 12 = $122.63
In this example, the borrower is married and has no dependents, other than the spouse. The borrower and spouse have a combined AGI of $39,201 and are repaying their loans under the ICR plan (for general information regarding joint ICR payments for married couples, see the fifth bullet under the heading entitled “General notes about the examples” in this attachment). The borrower has a Direct Loan balance of $10,000, $5,000 of which is at an interest rate of 6.80 percent and $5,000 of which is at an interest rate of 7.0 percent, and the spouse has a Direct Loan balance of $5,000 at an interest rate of 6.80 percent and $10,000 of which is at an interest rate of 7.0 percent.
• 6.8 percent: $5,000 + $5,000 = $10,000
• 7.0 percent: $5,000 + $10,000 = $15,000
• 0.122130 × $10,000 = $1,221.30
• 0.123406 × $15,000 = $1,851.09
• 87.61 × $3,072.39 ÷ 100 = $2,691.72
• $39,201 − $14,710 = $24,491
• $24,491 × 0.20 = $4,898.20
• $2,691.72 ÷ 12 = $224.31
• $31,210 − $26,230 = $4,980
• 80.33 percent − 71.89 percent = 8.44 percent
• $30,000 − $26,230 = $3,770
• $3,770 ÷ $4,980 = 0.757
• 8.44 percent × 0.757 = 6.389 percent
• 6.389 percent + 71.89 percent = 78.28 percent (rounded to the nearest hundredth)
The result is the income percentage factor that will be used to calculate the monthly repayment amount under the ICR plan.
Institute of Education Sciences, Department of Education.
Notice; correction.
Education Research and Special Education Research Grant Programs. Applications for New Awards. CFDA Nos: 84.305A, 84.305B, 84.305D, 84.305E, 84.305H, 84.324A, 84.324B, and 84.324D.
On March 6, 2012, the Institute of Education Sciences in the U.S. Department of Education published in the
In the March 6 NIA, the Department announced 13 competitions to be held under the Education Research and Special Education Research Grant Programs. The chart at the end of the March 6 NIA (see 77 FR 13297, 13302–13303) provided competition-specific information, including the dates application packages would be available as well as the deadline dates for applications. The entries in the chart corresponding to the following three competitions contained errors: Research on Statistical and Research Methodology in Education (CFDA 84.305D), Evaluation of State and Local Education Programs and Policies (CFDA 84.305E), and Researcher-Practitioner Partnerships in Education Research (CFDA 84.305H). Following is a description of the errors along with the correct information:
We indicated that the application package would be available on July 19, 2012; however, the correct date the application package will be available is April 19, 2012.
We also indicated that that the deadline for transmittal of applications would be September 20, 2012; however, the correct deadline is June 21, 2012.
We indicated that the application package would be available on April 19, 2012; however, the correct date the application package will be available is July 19, 2012.
We also indicated that that the deadline for transmittal of applications would be June 21, 2012; however, the correct deadline is September 20, 2012.
We indicated that the estimated range of awards was $100,000 to $400,000; however, the correct range is $50,000 to $200,000.
We also incorrectly indicated that the project period for this grant would be up to 3 years; the corrected project period is up to 2 years.
For these reasons, we correct the chart containing this information. On pages 13302–13303 of the March 6 NIA, the chart is corrected to appear as follows:
20 U.S.C. 9501
The contact person associated with a particular research competition is listed in the chart and in the RFA package. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
U.S. Department of Education, Institute of Education Sciences.
Notice of an Open Teleconference Meeting.
This notice sets forth the schedule and proposed agenda of an upcoming meeting of the National Board for Education Sciences. The notice also describes the functions of the Committee. Notice of this meeting is required by Section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of their opportunity to attend the meeting.
April 25, 2012.
4 p.m. to 5 p.m. EDT.
80 F Street NW., Room 100, Washington, DC 20001.
Monica Herk, Executive Director, National Board for Education Sciences, 555 New Jersey Ave. NW., Room 602 K, Washington, DC, 20208; phone: (202) 208–3491; fax: (202) 219–1466; email:
The National Board for Education Sciences is authorized by Section 116 of the Education Sciences Reform Act of 2002(ESRA), 20 U.S.C 9516. The Board advises the Director of the Institute of Education Sciences (IES) on, among other things, the establishment of activities to be supported by the Institute, on the funding for applications for grants, contracts, and cooperative agreements for research after the completion of peer review, and reviews and evaluates the work of the Institute.
On April 25, 2012, starting at 4 p.m., the Board will convene via teleconference in order to discuss and come to agreement on the Board's 2012 Annual Report.
Members of the public are invited to listen to the teleconference live in Room 100, 80 F Street NW., Washington, DC 20001.
There will not be an opportunity for public comment. However, members of the public are encouraged to submit written comments related to NBES to Monica Herk (see contact information above). A final agenda will be available from Monica Herk (see contact information above) on April 9 and will be posted on the Board Web site
Records are kept of all Board proceedings and are available for public inspection at 555 New Jersey Ave. NW., Room 602 K, Washington, DC 20208, from the hours of 9 a.m. to 5 p.m., Eastern Standard Time Monday through Friday.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free at 1–866–512–1800; or in the Washington, DC, area at (202) 512–0000.
The official version of this document is the document published in the
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
PPL EnergyPlus, LLC. (PPL EnergyPlus) has applied to renew its authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act (FPA).
Comments, protests, or motions to intervene must be submitted on or before May 7, 2012.
Comments, protests, or motions to intervene should be addressed to: Christopher Lawrence, Office of Electricity Delivery and Energy Reliability, Mail Code: OE–20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585–0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Christopher Lawrence (Program Office) at 202–586–5260, or by email to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the FPA (16 U.S.C.824a(e)).
On July 19, 1999, the Department of Energy (DOE) issued Order No. EA–210 authorizing PPL EnergyPlus to transmit electric energy from the United States to Canada as a power marketer for a two-year term. DOE subsequently renewed that authority two additional times in Order No. EA–210–A on November 13, 2001 and in Order No. EA–210–B on August 17, 2007. The current export authority in Order No. EA–210–B will expire on August 17, 2012. On March 16, 2012, PPL EnergyPlus filed an
In its application, PPL EnergyPlus states that it “does not own any physical electric generation or transmission facilities in the U.S. and does not have any franchised service territory in the U.S.” Therefore, the electric power proposed to be exported to Canada will be surplus to the needs of the entities selling the power to PPL EnergyPlus. The application also indicates that PPL EnergyPlus is a power marketer authorized by the Federal Energy Regulatory Commission to sell energy, capacity, and specified ancillary services at market-based rates.
The existing international transmission facilities to be utilized by PPL EnergyPlus have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments on the PPL EnergyPlus application to export electric energy to Canada should be clearly marked with OE Docket No. 210–C. An additional copy is to be filed directly with Jesse A. Dillon, Esq., Senior Counsel, PPL Services Corporation, Two North Ninth Street, Allentown, PA 18101 AND Sandra E. Rizzo, Esq., Bracewell & Giuliani LLP, 2000 K Street NW., Suite 500, Washington, DC 20006. A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy (DOE).
Notice of Limited Waivers.
The U.S. Department of Energy (DOE) is hereby granting a nationwide limited waiver of the Buy American requirements of section 1605 of the Recovery Act under the authority of Section 1605(b)(2), (iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality), with respect to Recovery Act projects funded by EERE for pre-insulated district heating pipe system consisting of thin wall thickness steel pipe meeting the EN13941 standard, bonded to polyurethane foam insulation, bonded to an HDPE jacket, such that all the components operate as a single pipe (including two 1.5 mm squared area copper wires embedded in the insulation for leak detection and location); pre-insulated steel fittings with the same characteristics as the pre-insulated pipe; and pre-insulated maintenance free ball valves with an all welded valve body and a stainless steel valve ball in a spring loaded teflon seat, having the same insulation and jacket characteristics as the pipe.
Effective Date: 03/27/2012.
Christine Platt-Patrick, Office of Energy Efficiency and Renewable Energy (EERE), (202) 287–1553, Department of Energy, 1000 Independence Avenue SW., Mailstop EE–2K, Washington, DC 20585.
Under the authority of American Recovery and Reinvestment Act of 2009 (Recovery Act), Public Law 111–5, section 1605(b)(2), the head of a Federal department or agency may issue a “determination of inapplicability” (a waiver of the Buy American provision) if the iron, steel, or relevant manufactured good is not produced or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality (“nonavailability”). The authority of the Secretary of Energy to make all inapplicability determinations was re-delegated to the Assistant Secretary for Energy Efficiency and Renewable Energy (EERE), for EERE projects under the Recovery Act, in Redelegation Order No. 00–002.01E, dated April 25, 2011. Pursuant to this delegation the Acting Assistant Secretary, EERE, has concluded that: Pre-insulated district heating pipe system consisting of thin wall thickness steel pipe meeting the EN13941 standard, bonded to polyurethane foam insulation, bonded to an HDPE jacket, such that all the components operate as a single pipe (including two 1.5 mm squared area copper wires embedded in the insulation for leak detection and location); pre-insulated steel fittings with the same characteristics as the pre-insulated pipe; and pre-insulated maintenance free ball valves with an all welded valve body and a stainless steel valve ball in a spring loaded teflon seat, having the same insulation and jacket characteristics as the pipe, is not produced or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality. The above item, when used on eligible EERE Recovery Act-funded projects, qualifies for the “nonavailability” waiver determination.
EERE has developed a robust process to ascertain in a systematic and expedient manner whether or not there is domestic manufacturing capacity for the items submitted for a waiver of the Recovery Act Buy American provision. This process involves a close collaboration with the United States Department of Commerce National Institute of Standards and Technology (NIST) Manufacturing Extension Partnership (MEP), in order to scour the domestic manufacturing landscape in search of producers before making any nonavailability determinations.
The MEP has 59 regional centers with substantial knowledge of, and connections to, the domestic manufacturing sector. MEP uses their regional centers to `scout' for current or potential manufacturers of the product(s) submitted in a waiver request. In the course of this interagency collaboration, MEP has been able to find exact or partial matches for manufactured goods that EERE grantees had been unable to locate. As a result,
Upon receipt of completed waiver requests for the product in this current waiver, EERE reviewed the information provided and submitted the relevant technical information to the MEP. The MEP then used their network of nationwide centers to scout for domestic manufacturers. The MEP reported that their scouting process did not locate any domestic manufacturers for these exact or equivalent items.
In addition to the MEP collaboration outlined above, the EERE Buy American Coordinator worked with other manufacturing stakeholders to scout for domestic manufacturing capacity or an equivalent product for each item contained in this waiver. EERE also conducted significant amounts of independent research to supplement MEP's scouting efforts, including utilizing the solar experts employed by the Department of Energy's National Renewable Energy Laboratory. EERE's research efforts confirmed the MEP findings that the good included in this waiver is not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.
The nonavailability determination is also informed by the inquiries and petitions to EERE from recipients of EERE Recovery Act funds, and from suppliers, distributors, retailers and trade associations—all stating that their individual efforts to locate domestic manufacturers for the item have been unsuccessful.
Specific technical information for the manufactured goods included in this non-availability determination is detailed below:
Pre-insulated district heating pipe system consisting of thin wall thickness steel pipe meeting the EN13941 standard, bonded to polyurethane foam insulation, bonded to an HDPE jacket, such that all the components operate as a single pipe (including two 1.5 mm squared area copper wires embedded in the insulation for leak detection and location); pre-insulated steel fittings with the same characteristics as the pre-insulated pipe; and pre-insulated maintenance free ball valves with an all welded valve body and a stainless steel valve ball in a spring loaded teflon seat, having the same insulation and jacket characteristics as the pipe.
Pre-insulated hot water district energy piping manufactured as a system to meet quality standards (EN Standards, ISO 9001, and ISO 14001) that test all aspects of the individual components (insulation cell structure/water absorption/compression resistance) plus ensure compliance of the finished system to five rigorous tests: axial and tangential shear strength, aged shear strength, creep and impact resistance. This degree of diligence is not imposed on thermal distribution piping manufactured as individual parts, and as a result products produced as a system to meet the above referenced standards better predict overall long term behavior of the system under sustained high temperature, resulting in lower life cycle cost and greater system efficiency. Because there is not a US manufacturer who makes a complete system, the components (pre-insulated valves, fittings, bends, etc.) of a hot water district energy system, have not been tested together to ensure that the entire system behaves in the same manner.
In light of the foregoing, and under the authority of section 1605(b)(2) of Public Law 111–5 and Redelegation Order 00–002–01E, with respect to Recovery Act projects funded by EERE, I hereby issue a “determination of inapplicability” (a waiver under the Recovery Act Buy American provision) for: Pre-insulated district heating pipe system consisting of thin wall thickness steel pipe meeting the EN13941 standard, bonded to polyurethane foam insulation, bonded to an HDPE jacket, such that all the components operate as a single pipe (including two 1.5 mm squared area copper wires embedded in the insulation for leak detection and location); pre-insulated steel fittings with the same characteristics as the pre-insulated pipe; and pre-insulated maintenance free ball valves with an all welded valve body and a stainless steel valve ball in a spring loaded teflon seat, having the same insulation and jacket characteristics as the pipe.
Having established a proper justification based on domestic nonavailability, EERE hereby provides notice that on March 27, 2012, one (1) nationwide categorical waiver of section 1605 of the Recovery Act were issued as detailed
This waiver determination is pursuant to the delegation of authority by the Secretary of Energy to the Assistant Secretary for Energy Efficiency and Renewable Energy with respect to expenditures within the purview of his responsibility. Consequently, this waiver applies to all EERE projects carried out under the Recovery Act.
Pub. L. 111–5, section 1605.
Take notice that on March 29, 2012, Northwest Pipeline GP (Northwest), 295 Chipeta Way, Salt Lake City, Utah 84108, filed in the above referenced docket an application pursuant to sections 7(b) and 7(c) of the Natural Gas Act (NGA) for authorization to construct and operate its Kemmerer Mine Relocation Project (Project) located in Lincoln County, Wyoming. Northwest states that the proposed Project consists of installing approximately 2.4 miles each of 26-inch diameter and 30-inch diameter pipelines to permanently route Northwest's existing 26-inch diameter and 30-inch diameter pipelines away from an adjacent surface coal mine west of Kemmerer, Wyoming. Northwest also proposes to abandon by removal approximately 0.9 miles of 30-inch diameter pipeline, abandon by place approximately 0.9 mile each of existing 26-inch diameter and 30-inch diameter pipelines, and abandon in place approximately 0.1 mile of 30-inch diameter pipeline, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Any questions concerning this application may be directed to Pam Barnes, Manager Certificates and Tariffs, Northwest Pipeline GP, 295 Chipeta Way, Salt Lake City, Utah 84108, at (801) 584–6857.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing motions to intervene, protests, comments, recommendations, terms and conditions, and fishway prescriptions is 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Please include the project numbers (P–2710–057 and/or P–2712–074) on any motions, protests, comments, recommendations, terms and conditions, or fishway prescriptions filed.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following open access transmission tariff filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Diamond State Generation Partners, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 19, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
On March 30, 2012, the Commission issued an order that initiated a proceeding in Docket No. EL12–46–000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2006), to determine the justness and reasonableness of the proposed rate reduction by Puget Sound Energy, Inc.
The refund effective date in Docket No. EL12–46–000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Environmental Protection Agency.
Announcement of availability of literature searches for IRIS assessments; request for information.
The U.S. Environmental Protection Agency (EPA) is announcing the availability of literature searches for acetaldehyde (75–07–0) and 1,2,3-trimethlybenzene (526–73–8). EPA is requesting scientific information on health effects that may result from exposure to these chemical substances.
EPA will accept information related to the specific substances included herein as well as any other compounds being assessed by the IRIS Program. Please submit any information in accordance with the instructions provided below.
Please submit relevant scientific information identified by docket ID number EPA–HQ–ORD–2007–0664, online at
For information on the IRIS program, contact Karen Hammerstrom, IRIS Program Deputy Director, National Center for Environmental Assessment, (mail code: 8601D), Office of Research and Development, U.S. Environmental Protection Agency, Washington, DC 20460; telephone: (703) 347–8642, facsimile: (703) 347–8689; or email:
For general questions about access to IRIS, or the content of IRIS, please call the IRIS Hotline at (202) 566–1676 or send electronic mail inquiries to
EPA's IRIS is a human health assessment program that evaluates quantitative and qualitative risk information on effects that may result from exposure to specific chemical substances found in the environment. Through the IRIS Program, EPA provides the highest quality science-based human health assessments to support the Agency's regulatory activities. The IRIS database contains information for more than 540 chemical substances that can be used to support the first two steps (hazard identification and dose-response evaluation) of the risk assessment process. When supported by available data, IRIS provides oral reference doses (RfDs) and inhalation reference concentrations (RfCs) for chronic noncancer health effects as well as assessments of potential carcinogenic effects resulting from chronic exposure. Combined with specific exposure information, government and private entities use IRIS to help characterize public health risks of chemical substances in a site-specific situation and thereby support risk management decisions designed to protect public health.
This data call-in is an early step in the IRIS process. As literature searches are completed, the results will be posted on the IRIS Web site (
EPA recently added 1,2,3-trimethylbenzene (TMB) to the IRIS agenda to complete the set of three trimethylbenzene isomers. Two other isomers of TMB are already included on the IRIS agenda and undergoing review (1,2,4-TMB and 1,3,5-TMB). 1,2,3-TMB is often found in the environment with 1,2,4 and 1,3,5-TMB. Given this situation, and in response to comments received in the Agency Review and Interagency Science Consultation for 1,2,4 and 1,3,5-TMB, EPA is adding 1,2,3-TMB to the agenda and will conduct assessments of all three isomers at the same time. Because the 1,2,4- and 1,3,5-TMB assessments are already underway, EPA would appreciate notification of any additional literature as soon as possible so that this information can be included in the 1,2,3-TMB assessment prior to public comment and external peer review.
EPA is soliciting public involvement in assessments on the IRIS agenda. While EPA conducts a thorough literature search for each chemical substance, there may be unpublished studies or other primary technical sources that are not available through the open literature. EPA would appreciate receiving scientific information from the public during the information gathering stage for the assessments listed in this notice or any other assessments on the IRIS agenda. Interested persons may provide scientific analyses, studies, and other pertinent scientific information. While EPA is primarily soliciting information on new assessments, the public may submit information on any chemical substance at any time.
EPA is announcing the availability of additional literature searches on the IRIS web site (
Submit your comments, identified by Docket ID No. EPA–HQ–ORD–2007–0664 by one of the following methods:
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Weekly receipt of Environmental Impact Statements filed 03/26/2012 through 03/30/2012 pursuant to 40 CFR 1506.9.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Export-Import Bank of the U.S.
Submission for OMB Review and Comments Request.
The Export-Import Bank of the United States (Ex-Im Bank), as a part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
Ex-Im Bank is requesting an emergency approval of Ex-Im Bank form EIB 94–08, Notification and Assignment by Insured to Financial Institution of Medium Term Export Credit Insurance Policy. Ex-Im Bank's exporter policy holders, along with the financial institution providing it with financing, provide this form to Ex-Im Bank. The form transfers the duties and obligations of the insured exporter to the financial institution. It also provides certifications to the financial institution and Ex-Im Bank that the financed export transaction results in a valid, enforceable, and performing debt obligation. Exporter policy holders need this form to obtain financing for their medium term export sales. Ex-Im Bank believes that EIB 94–08 requires emergency approval in order to continue operation of its medium term program for U.S. exporters.
Lack of an emergency approval of this form would greatly restrict our ability to support many of the export sales made by U.S. businesses. Without this form, it would not be possible for financial institutions to obtain sufficient comfort to provide funding to our exporter policy holders. This would adversely impact Ex-Im Bank's ability to finance small business exporters and its overall mission to support U.S. exports and maintain U.S. jobs. Accordingly, Ex-Im Bank requests emergency approval of EIB 94–08 in order to continue operation of this important export program.
The form can be viewed at
Comments should be received on or before June 5, 2012 to be assured of consideration.
Comments maybe submitted electronically on
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 23, 2012.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690–1414:
1. The Duncan, Hrvol, and Molzen Families consisting of E. Ray Duncan, individually and as beneficiary of the Hardware State Bank 401K Plan and as beneficiary of the Sullivan Bancshares, Inc. Employee Savings and Retirement Plan, together as a group acting in concert with Sally Foley Duncan and Sally Foley Duncan, as Trustee of the John K. Foley Revocable Living Trust and as beneficiary of the Hardware State Bank 401K Plan, the John K. Foley Revocable Living Trust, and Gloria Foley, all of Lovington, Illinois, and Paul Michael Hrvol, Jr. and Paul Michael Hrvol, Jr., as beneficiary of the Sullivan Bancshares, Inc. Employee Savings and Retirement Plan, Michelle Beth Hrvol and Michelle Beth Hrvol, as beneficiary of the Sullivan Bancshares, Inc. Employee Savings and Retirement Plan, all of Sullivan, Illinois, and Roger Reid Molzen and Roger Reid Molzen, as beneficiary of the Sullivan Bancshares, Inc. Employee Savings and Retirement Plan and Christina DeAnne Molzen, all of Sullivan, Illinois, collectively as a group acting in concert, to retain shares of Moultrie Bancorp, Inc. and thereby indirectly control Hardware State Bank, both of Lovington, Illinois.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Synthesis of AHRQ–Funded HAI Projects.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501–3521, AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by June 5, 2012.
Written comments should be submitted to: Doris Leflcowitz, Reports Clearance Officer, AHRQ, by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Leflcowitz, AHRQ Reports Clearance Officer, (301) 427–1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) approve, under the Paperwork Reduction Act of 1995, AHRQ's collection of information for the Synthesis of AHRQ–Funded HAI Projects.
For approximately a decade, AHRQ has conducted research on preventing healthcareassociated infections (HAIs), both internally and through contracts and grants. AHRQ's grant- and contract-supported projects have been directed at the major types of HAIs: Central-line-associated bloodstream infections (CLABSI), catheter-associated urinary tract infections (CAUTI), surgical site infections (S SI), ventilator-associated pneumonia (VAP), methicillin-resistant Staphylococcus aureus (MRSA), and Clostridium difficile (C. cliff.). Projects have addressed the problem of HAIs in diverse healthcare settings, including hospitals, ambulatory settings (ambulatory surgery centers, end-stage renal disease facilities, and outpatient clinics and offices), and long-term care facilities. AHRQ's portfolio of HAI projects has emphasized a combination of research and implementation initiatives. In the latter category, a major focus of AHRQ's efforts has been to deploy tools that can improve provider performance and reduce HAIs. Based on the earlier success of the Michigan Keystone project, AHRQ has funded projects to implement the Comprehensive Unit-based Safety Program (CUSP) to address CLABSI and CAUTI nationwide. Data are now emerging that demonstrate the success of CUSP in reducing CLABSI in hospitals across the nation.
Between 2007 and 2010, AHRQ funded 40 contracts and 18 grants focusing on expanding the HAI knowledge base and implementing HAI prevention strategies. Today it is
AHRQ has contracted with IMPAQ International, LLC, to develop this synthesis, identify gaps, and promote the widespread application of successful HAI prevention approaches. This research has the following goals: (1) Identify and document findings and synthesize results of AHRQ-funded HAI projects; (2) Disseminate key findings from the HAI projects; and (3) Identify remaining gaps in the HAI knowledge base.
This study is being conducted by AHRQ through its contractor, IMPAQ International, LLC and its subcontractor, the RAND Corporation, pursuant to AHRQ's statutory authority to conduct and support research and disseminate information on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of healthcare services and with respect to quality measurement and improvement. 42 U.S.C. 299a(a)(1) and (2).
To achieve the goals of this project the following data collection will be implemented:
(1) Interviews with contractors—Interviews will be conducted with the project leaders (project directors or project managers) from 40 HAT contractors. The purpose of these interviews is to identify (a) key findings, (b) gaps in knowledge base, (c) lessons learned, (d) effective approaches for preventing and reducing HAIs, and e) opportunities for additional projects focused on generating and implementing knowledge on preventing HAIs.
(2) Interviews with grantees—Interviews will be conducted with the project leaders (principal investigators) from 18 HAI grantees. Similar to the interviews with contractors, the purpose of these interviews is to identify (a) key findings, (b) gaps in knowledge base, (c) lessons learned, (d) effective approaches for preventing and reducing HAIs, and (e) opportunities for additional projects focused on generating and implementing knowledge on preventing HAIs. While the goals of the interviews with contractors and grantees are similar, the two audiences require separate interview protocols because their funding mechanisms and project structures differ. For example, contracts have more structured deliverable schedules than do grants and grants are more likely than contracts to be on investigator-initiated topics.
AHRQ will interview key project leaders to learn about the processes and methods used, results achieved, and lessons learned under the AHRQ-funded HAI contracts and grants. This information will enable AHRQ to identify effective approaches for preventing and reducing HAIs and for promoting the widespread application of these approaches. Finally, collecting data from these audiences will allow AHRQ to detect gaps in the HAI science base and identify opportunities for additional projects focused on generating and implementing knowledge on preventing HAIs.
Exhibit 1 shows the estimated annualized burden hours for the respondent's time to participate in this evaluation. Interviews will be conducted with 40 contractors and 18 grantees and each will last about 90 minutes. The total burden hours are estimated to be 87.
The respondents are the project leaders, that is, project directors for the contracts and principal investigators for the grants. Based on the type of grant and the project leaders' qualifications, the project leaders were categorized into three labor categories: Social Scientists and Related Workers; Epidemiologists; and Medical Scientists. For example, one project director conducting a randomized controlled trial is a physician and was categorized into the Medical Scientist labor category. Other project leaders have advanced degrees in the social sciences (e.g., gerontology) or epidemiology and were included in the Social Scientist or Epidemiologist labor categories, as appropriate.
Exhibit 2 shows the estimated annualized cost burden associated with the respondent's time to participate in the evaluation. The total cost burden is estimated to be $3,450.
Exhibit 3 shows the estimated total and annualized cost to the government for conducting the evaluation. The total cost is estimated to be $87,502.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
The meeting announced below concerns Detecting Emerging Vector-Borne Zoonotic Pathogens in Indonesia, Funding Opportunity Announcement (FOA) CK12–002, initial review.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Identifying Modifiable Protective Factors for Intimate Partner Violence or Sexual Violence Perpetration, Funding Opportunity Announcement (FOA) CE12–003, Initial Review
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
Agenda items are subject to change as priorities dictate.
• Full Name,
• Organizational Affiliation,
• Complete Mailing Address,
• Citizenship, and
• Phone Number or Email Address
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Technology Transfer Office, Centers for Disease Control and Prevention (CDC), Department of Health and Human Services.
Notice.
This is a notice in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i) that the Centers for Disease Control and Prevention (CDC), Technology Transfer Office, Department of Health and Human Services (DHHS), is contemplating the grant of a worldwide, exclusive license to practice the inventions embodied in the patent application referred to below to Sanitas Inc., having a place of business in La Jolla, California. The patent rights in these inventions have been assigned to the government of the United States of America. The patent application(s) to be licensed are:
US Patent Application 11/815,445 entitled “Personal Assessment Including Familial Risk Analysis for Personalized Disease Prevention Plan,” filed 5/20/2008, claiming priority to Provisional Patent Application No. 60/650,076, filed 2/3/2005. CDC Technology ID No. I–004–04.
The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
Requests for a copy of this patent application, inquiries, comments, and other materials relating to the contemplated license should be directed to Donald Prather, J.D., Ph.D., Technology Licensing and Marketing Specialist, Technology Transfer Office, Centers for Disease Control and Prevention (CDC), 4770 Buford Highway, Mailstop K–79, Atlanta, GA 30341, Telephone: (770) 488–8612; Facsimile: (770) 488–8615. Applications for a license filed in response to this notice will be treated as objections to the grant of the contemplated license. Only written comments and/or applications for a license which are received by CDC within thirty days of this notice will be considered. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is issuing an order under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) debarring Jyotin Parikh for 5 years from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Mr. Parikh was convicted of one count of conspiracy to commit an offense against the United States for conduct relating to the
This order is effective April 6, 2012.
Submit applications for termination of debarment to the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Kenny Shade, Office of Regulatory Affairs (HFC–230), Food and Drug Administration, 12420 Parklawn Dr., Element Bldg., rm 4144, Rockville, MD 20857, 301–796–4640.
Section 306(b)(2)(B)(i)(II) of the FD&C Act (21 U.S.C. 335a(b)(2)(B)(i)(II)) permits FDA to debar an individual if it finds that the individual has been convicted of a conspiracy to commit a felony under Federal law for conduct relating to the development or approval, including the process for development or approval, of any drug product or relating to the regulation of any drug product under the FD&C Act, and if FDA finds that the type of conduct that served as the basis for the conviction undermines the process for the regulation of drugs.
On December 9, 2010, judgment was entered against Mr. Parikh in the United District Court for the District of New Jersey based upon a plea of guilty to one count of conspiracy to commit an offense against the United States, in violation of 18 U.S.C. 371.
FDA's finding that debarment is appropriate is based on the felony conviction referenced herein. The factual basis for the conviction is as follows: Mr. Parikh was employed at Able Laboratories, Inc. (Able), as Laboratory Manager in Quality Control and was later transferred to Able's Research and Development. Able developed, manufactured, and sold several generic drug products, including products for cardiac and psychiatric conditions and prescription pain relievers.
From in or around 1999 through on or about May 19, 2005, Mr. Parikh conspired to cause the introduction and delivery for introduction into interstate commerce of a drug that was adulterated and misbranded, with an intent to defraud and mislead, contrary to 18 U.S.C. 371, 21 U.S.C. 331(a) and 333(a)(2).
Mr. Parikh and his co-conspirators impaired, impeded, defeated and obstructed FDA's lawful government function to approve the manufacture and distribution of generic drug products by violating Good Manufacturing Practices; violating Standards of Procedure by failing to properly investigate, log and archive questionable, aberrant, and unacceptable laboratory results so that Able could conceal improprieties and continue to distribute and sell its drug products; manipulating and falsifying testing data and information to conceal from FDA failing laboratory results relating to Able's generic drug products; creating and maintaining false, fraudulent, and inaccurate test results to make it appear that drug products had the requisite identity, strength, quality, and purity characteristics so the drug products could be distributed and sold to increase Able's sales and profit; and creating and maintaining false, fraudulent, and inaccurate data and records to obtain FDA approval to market new product lines.
In furtherance of the conspiracy, in or around March 2003, Mr. Parikh supervised the creation of false and fraudulent entries in chemist laboratory notebooks, and in the corresponding process validation binders, that were used to support Able's Abbreviated new Drug Application for Lithium Carbonate Extended Release tablets, for which Able received FDA approval on or about April 21, 2003.
As a result of his conviction, on December 20, 2011, FDA sent Mr. Parikh a notice by certified mail proposing to debar him for 5 years from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(b)(2)(B)(i)(II) of the FD&C Act (21 U.S.C. 335a(b)(2)(B)(i)(II)) that Mr. Parikh was convicted of a conspiracy under Federal law for conduct relating to the development and approval, including the process for development and approval of a drug product, and to the regulation of drug products under the FD&C Act, and the conduct that served as a basis for the conviction undermined the process for the regulation of drugs. The proposal also offered Mr. Parikh an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted a waiver of the opportunity for a hearing and of any contentions concerning this action. Mr. Parikh failed to request a hearing within the timeframe prescribed by regulation and has, therefore, waived his opportunity for a hearing and waived any contentions concerning his debarment (21 CFR part 12).
Therefore, the Director, Office of Enforcement, Office of Regulatory Affairs, under section 306(b)(2)(B)(i)(II) of the FD&C Act under authority delegated to him (Staff Manual Guide 1410.35), finds that Jyotin Parikh has been convicted of a conspiracy under Federal law for conduct relating to the development and approval, including the process for development and approval of a drug product, and to the regulation of drug products under the FD&C Act, and that the type of conduct that served as a basis for the conviction undermined the process for the regulation of drugs.
As a result of the foregoing finding, Mr. Parikh is debarred for 5 years from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see
Any application by Mr. Parikh for termination of debarment under section 306(d)(1) of the FD&C Act should be identified with Docket No. FDA–2009–N–0332 and sent to the Division of
Publicly available submissions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Guidance for Industry and Food and Drug Administration Staff; User Fees for 513(g) Requests for Information.” This guidance document describes the user fees associated with 513(g) requests for information.
Submit either electronic or written comments on this guidance at any time. General comments on Agency guidance documents are welcome at any time.
Submit written requests for single copies of the guidance document entitled “Guidance for Industry and Food and Drug Administration Staff; User Fees for 513(g) Requests for Information” to the Division of Small Manufacturers, International and Consumer Assistance, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4613, Silver Spring, MD 20993–0002 or Office of Communication, Outreach and Development (HFM–40), 1401 Rockville Pike, suite 200N, Rockville, MD 20852. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301–847–8149. See the
Submit electronic comments on the guidance to
Section 513(g) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(g)) provides a means for obtaining FDA's views about classification information and the regulatory requirements that may be applicable to a particular device. Title II of the Food and Drug Administration Amendments Act of 2007 (FDAAA), also termed the Medical Device User Fee Amendments of 2007 (Pub. L. 110–85), extends FDA's authority to collect medical device user fees by establishing a fee for “a request for classification information.”
In the
Elsewhere in this issue of the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on user fees for 513(g) requests for information. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Persons interested in obtaining a copy of the guidance may do so by using the Internet. A search capability for all CDRH guidance documents is available at
This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collection(s) of information in this guidance was approved under OMB control number 0910–0705.
This guidance also refers to currently approved collections of information found in FDA regulations. The collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910–0120 and the collections of information in 21 CFR part 814 have been approved under OMB control number 0910–0231.
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Guidance for Industry and Food and Drug Administration Staff; FDA and Industry Procedures for Section 513(g) Requests for Information under the Federal Food, Drug, and Cosmetic Act.” This guidance document establishes the procedures for the submission, FDA review, and FDA response to requests for information regarding the class in which a device has been classified.
Submit either electronic or written comments on this guidance at any time. General comments on Agency guidance documents are welcome at any time.
Submit written requests for single copies of the guidance document entitled “Guidance for Industry and Food and Drug Administration Staff; FDA and Industry Procedures for Section 513(g) Requests for Information under the Federal Food, Drug, and Cosmetic Act” to the Division of Small Manufacturers, International and Consumer Assistance, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 4613, Silver Spring, MD 20993–0002 or Office of Communication, Outreach and Development (HFM–40), 1401 Rockville Pike, suite 200N, Rockville, MD 20852. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301–847–8419. See the
Submit electronic comments on the guidance to
Section 513(g) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(g)) provides a means for obtaining FDA's views about the classification and the regulatory requirements that may be applicable to a particular device. This guidance describes procedures for the submission, FDA review, and FDA response to requests for information with respect to the classification of a device or the requirements applicable to a device under the FD&C Act that are submitted in accordance with section 513(g) requests for information. FDA's response to section 513(g) requests for information are not device classification decisions and do not constitute FDA clearance or approval for marketing. Classification decisions and clearance or approval for marketing require submissions under different sections of the FD&C Act.
In the
Additionally, the FD&C Act, as amended by the FDA Amendments Act of 2007 (FDAAA) (Pub. L. 110–85), requires FDA to collect user fees for section 513(g) requests for information. Elsewhere in this issue of the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on procedures regarding section 513(g) requests. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Persons interested in obtaining a copy of the guidance may do so by using the Internet. A search capability for all CDRH guidance documents is available at
This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collection(s) of information in this guidance was approved under OMB control number 0910–0705.
This guidance also refers to currently approved collections of information found in FDA regulations. The collections of information in 21 CFR part 807 subpart E have been approved under OMB control number 0910–0120; the collections of information in 21 CFR part 814 have been approved under OMB control number 0910–0231; the collections of information in 21 CFR part 801 have been approved under OMB control number 0910–0485; and the collections of information in 21 CFR 860.123 have been approved under OMB control number 0910–0138.
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for TEFLARO and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of Patents and Trademarks, Department of Commerce, for the extension of patents which claim that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave. Bldg. 51, Rm. 6222, Silver Spring, MD 20993–0002, 301–796–3602.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product TEFLARO (ceftaroline fosamil). TEFLARO is indicated for the treatment of the following infections caused by designated susceptible bacteria: Acute bacterial skin and skin structure infections; and community-acquired bacterial pneumonia. Subsequent to this approval, the Patent and Trademark Office received patent term restoration applications for TEFLARO (U.S. Patent Nos. 6,417,175 and 6,906,055) from Takeda Pharmaceutical Company Limited, and the Patent and Trademark Office requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated June 8, 2011, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of TEFLARO represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for TEFLARO is 2,118 days. Of this time, 1,814 days occurred during the testing phase of the regulatory review period, while 304 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its applications for patent extension, this applicant seeks 1,049 days or 1,211 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on regulations.gov may be viewed in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for LATUDA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6222, Silver Spring, MD 20993–0002, 301–796–3602.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product LATUDA (lurasidone hydrochloride). LATUDA is indicated as an atypical antipsychotic agent for the treatment of patients with schizophrenia. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for LATUDA (U.S. Patent No. 5,532,372) from Dainippon Sumitomo Pharma Co., Ltd., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated April 26, 2011, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of LATUDA represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for LATUDA is 3,602 days. Of this time, 3,299 days occurred during the testing phase of the regulatory review period, while 303 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,826 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on regulations.gov may be viewed in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for NATROBA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of Patents and Trademarks, Department of Commerce, for the extension of patents which claim that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6222, Silver Spring, MD 20993–0002, 301–796–3602.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product NATROBA (spinosad). NATROBA is indicated for the topical treatment of head lice infestations in patients four years of age and older. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for NATROBA (U.S. Patent Nos. 6,063,771 and 6,342,482) from Eli Lilly and Company, and the Patent and Trademark Office requested FDA's assistance in determining these patents' eligibility for patent term restoration. In a letter dated June 22, 2011, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of NATROBA represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for NATROBA is 2,261 days. Of this time, 1,534 days occurred during the testing phase of the regulatory review period, while 727 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its applications for patent extension, this applicant seeks 1,493 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on regulations.gov may be viewed in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for
Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave. Bldg. 51, rm. 6222, Silver Spring, MD 20993–0002, (301) 796–3602.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product DATSCAN (Ioflupane I–123 injection). DATSCAN is indicated for striatal dopamine transporter visualization using single photon emission computed tomography brain imaging to assist in the evaluation of adult patients with suspected Parkinsonian syndromes. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for DATSCAN (U.S. Patent No. 5,310,912) from GE Healthcare Limited, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated June 22, 2011, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of DATSCAN represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for DATSCAN is 677 days. Of this time, 0 days occurred during the testing phase of the regulatory review period, while 677 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 5 years of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on regulations.gov may be viewed in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for VIIBRYD and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of Patents and Trademarks, Department of Commerce, for the extension of patents which claim that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave. Bldg. 51, rm. 6222, Silver Spring, MD 20993–0002, 301–796–3602.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product VIIBRYD (vilazodone hydrochloride). VIIBRYD is indicated for the treatment of major depressive disorder. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for VIIBRYD (U.S. Patent Nos. 5,532,241 and 7,834,020) from Merck Patent GmbH, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated June 22, 2011, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of VIIBRYD represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for VIIBRYD is 4,778 days. Of this time, 4,472 days occurred during the testing phase of the regulatory review period, while 306 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its applications for patent extension, this applicant seeks either 67 days or 5 years of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on regulations.gov may be viewed in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the Laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently certified Laboratories and Instrumented Initial Testing Facilities (IITF) is published in the
If any Laboratory/IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, Room 2–1042, One Choke Cherry Road, Rockville, Maryland 20857; 240–276–2600 (voice), 240–276–2610 (fax).
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100–71. The “Mandatory Guidelines for Federal Workplace Drug Testing Programs,” as amended in the revisions listed above, requires strict standards that Laboratories and Instrumented Initial Testing Facilities (IITF) must meet in order to conduct drug and specimen validity tests on urine specimens for Federal agencies.
To become certified, an applicant Laboratory/IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a Laboratory/IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and Instrumented Initial Testing Facilities (IITF) in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A Laboratory/IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with the Mandatory Guidelines dated November 25, 2008 (73 FR 71858), the following Laboratories and Instrumented Initial Testing Facilities (IITF) meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
The following laboratory voluntarily withdrew from the National Laboratory Certification Program on March 31, 2012:
The following laboratory voluntarily withdrew from the National Laboratory Certification Program on March 31, 2012:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Coast Guard, DHS.
Notice of Federal Advisory Committee Meeting.
The Merchant Mariner Medical Advisory Committee (MMMAC) will meet on May 8–9, 2012 to discuss matters relating to medical certification determinations for issuance of merchant mariner credentials, medical standards and guidelines for physical qualifications of operators of commercial vessels, medical examiner education, and medical research. The meeting will be open to the public.
MMMAC will meet on Tuesday, May 8, and Wednesday, May 9, 2012 from 8 a.m. to 5:30 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held at the National Maritime Center (NMC), 3rd floor conference room, 100 Forbes Drive, Martinsburg, West Virginia 25404.
Please be advised that in order to gain admittance to the NMC building, you must provide identification in the form of a government-issued picture identification card. If you plan to attend, please notify the individual listed in
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact LT Dylan McCall, the ADFO, 202–372–1128 as soon as possible.
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the “Agenda” section below. Comments must be submitted in writing to the Coast Guard on or before April 20, 2012 and must be identified by USCG–2011–0138 and may be submitted by
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A public comment period will be held on May 8, 2012, from 9:20 a.m. to 9:30 a.m., and May 9, 2012 from 5 p.m. to 5:10 p.m. Speakers are requested to limit their comments to 3 minutes. Please note that the public comment period may end before the time indicated, following the last call for comments. Additionally, public comment will be sought throughout the meeting as specific tasks and issues are discussed by the committee. Contact the individual listed below to register as a speaker.
Lieutenant Dylan McCall, the MMMAC ADFO, at telephone 202–372–1128 or email
Notice of this meeting is given under the
(1) Opening comments by Designated Federal Officer (DFO), Captain E. P. Christensen.
(2) Remarks from National Maritime Center Leadership.
(3) Introduction and swearing in of the new members.
(4) Designation of the Chair and Vice-Chair.
(5) Review of Last Meeting's Minutes.
(6) Public Comments.
(7) Working Groups addressing the following task statements may meet to deliberate—
(a) Task Statement 1, Revising Navigation and Vessel Inspection Circular (NVIC) 04–08. The NVIC can be found at
(b) Task Statement 2, top medical conditions leading to denial of mariner credentials.
(c) Task Statement 4, Revising the CG–719K Medical Evaluation Report Form for mariner physicals. The form can be found at
(d) Task Statement 5, Creating medical expert panels for the top medical conditions.
(e) Task Statement 6, Developing designated medical examiner program.
(1) Working Group Discussions continued from Day 1.
(2) By mid-afternoon, the Working Groups will report, and if applicable, make recommendations for the full committee to consider for presentation to the Coast Guard. Official action on these recommendations may be taken on this date. The public will have an opportunity to speak during the Working Groups Report.
(3) General public comments/presentations.
(4) Closing remarks/plans for next meeting.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces U.S. Customs and Border Protection's (CBP's) plan to conduct a National Customs Automation Program (NCAP) test concerning document imaging. During the test, certain Automated Commercial Environment (ACE) participants will be able to submit electronic images of a specific set of CBP and Participating Government Agency (PGA) forms and supporting information to CBP. Specifically, importers, and brokers, will be allowed to submit official CBP documents and specified PGA forms via the Electronic Data Interchange (EDI). This notice also describes test particulars including commencement date, eligibility, procedural and documentation requirements, and test development and evaluation methods. The test will be known as the Document Image System (DIS) Test.
The DIS test will commence no earlier than April 6, 2012 and will continue until concluded by way of announcement in the
Comments concerning this notice should be submitted via email to Monica Crockett at
For policy-related questions, contact Monica Crockett at
The National Customs Automation Program (NCAP) was established in Subtitle B of Title VI—Customs Modernization, in the North American Free Trade Agreement Implementation Act (Pub. L. 103–182, 107 Stat. 2057, 2170, December 8, 1993) (Customs Modernization Act). See 19 U.S.C. 1411. Through NCAP, the initial thrust of customs modernization was on trade compliance and the development of the Automated Commercial Environment (ACE), the planned successor to the Automated Commercial System (ACS). ACE is an automated and electronic system for commercial trade processing which is intended to streamline business processes, facilitate growth in trade, ensure cargo security, and foster participation in global commerce, while ensuring compliance with U.S. laws and regulations and reducing costs for U.S. Customs and Border Protection (CBP) and all of its communities of interest. The ability to meet these objectives depends on successfully modernizing CBP's business functions and the information technology that supports those functions. CBP's modernization efforts are accomplished through phased releases of ACE component functionality designed to replace a specific legacy ACS function. Each release will begin with a test and will end with mandatory compliance with the new ACE feature, thus retiring the legacy ACS function. Each release builds on previous releases and sets the foundation for subsequent releases.
ACE prototypes are tested in accordance with § 101.9(b) of title 19 of the Code of Federal Regulations (19 CFR 101.9(b)), which provides for the testing of NCAP components including ACE. For the convenience of the public, a chronological listing of
This notice announces a CBP plan to allow parties who have been accepted in previous ESAR tests and who file entry summaries in ACE to submit specified CBP and PGA documents via the Electronic Data Interchange (EDI) as part of the Document Image System (DIS) test. DIS is currently a stand-alone system that will eventually support integration with other CBP systems and other government agencies. DIS capabilities will be delivered in multiple phases.
The first phase, and the subject of this notice, will enable participating importers and brokers to transmit images of specified CBP and PGA forms with supporting information via EDI in an Extensible Markup Language (XML) format, in lieu of conventional paper methods. DIS will provide for the storage of all submitted documents in a secure centralized location for the maintenance of associations with ACE entry summary transactions. Authorized CBP and PGA users will have the ability to access document images submitted by trade participants via a user interface, which will allow CBP and PGA users to select specific documents for review, to change the status of documents, and to add comments based on the current state of their review. The interface will also allow the document image to be downloaded or printed, if necessary. This first phase will be limited to the forms listed below in Section III of this notice. Subsequent deployment phases of DIS will extend the functionality developed in this first phase to other CBP and PGA systems. These latter phases will incorporate additional forms into DIS and provide new interfaces for integration of DIS with other systems in CBP and other government agencies. The exact dates and content of subsequent phases of DIS have not yet been determined but will be announced in the
In order to be eligible to participate in the DIS test, importers or brokers must be ACE entry summary filers. Interested participants should contact their client representative for additional information pertaining to participation in this test. Interested companies that do not currently have an assigned client representative should submit a Letter of Intent expressing their intent to participate in the DIS test so that client representatives can be assigned. Instructions for the preparation of the Letter of Intent can be found on the CBP
The following rules will apply to all participants involved in the DIS testing process:
• Documents may be transmitted in DIS in response to a request for entry summary documentation or in response to a request for release documentation for certified ACE entry summaries.
• Unsolicited document submissions are not allowed; however, for the purposes of PGA forms and invoices/packing lists that are associated to ACE entry summaries certified for cargo release, the trade may submit the required documentation without a prior request by CBP or the participating government agency (PGA).
• Only documents that have been requested by CBP or the PGA should be transmitted to CBP. If a document is submitted that has not been requested by CBP, an error message will be returned indicating that the transaction for which the document was submitted does not have any pending document requests made by CBP or a PGA.
• The filer may only file documents that CBP can accept electronically. In this first phase of DIS, the documents CBP can accept electronically are noted below. If CBP cannot accept the additional information electronically, the filer must file the additional information by other means, which may be paper.
• For the purposes of this test, original documents must be retained and made available in paper, if requested by CBP or a PGA.
• For the purposes of this test phase, APHIS, EPA and NOAA forms can be submitted only with ACE entry summaries that are certified for release.
The first test phase is limited to the transmission of documents specified in this notice. The CBP form and commercial documents supported in this first phase of the DIS test and covered by this notice are Commercial Invoices, Packing Lists, and Invoice Working Sheets. The PGA related forms and documents supported in this first phase of the DIS test and covered by this notice are as follows:
• TSCA Import Certification Form
• EPA Form 3520–21 Importation of Motor Vehicles and Engines (off road)
• EPA Form 3520–1 Importation of Motor Vehicles and Engines (on road)
• EPA Form 3540–1 Notice of Arrival of Pesticides and Devices
• EPA Pre-approved Vehicle/Engine Exemption Letter
• EPA Pesticide Label
• APHIS Ingredients List
• APHIS Phytosanitary Certificate
• APHIS Import Permit
• APHIS Transit Permit
• APHIS Notice of Arrival
• APHIS Pre-Clearance 203
• NOAA Form 370 Fisheries Certificate of Origin
• NOAA Toothfish Pre-Approval
Any form or document submitted via DIS is an electronic copy of an original document that is subject to the recordkeeping requirements of 19 CFR Part 163. Every form or document transmitted through DIS must be a complete, accurate and unaltered copy of the original document.
Images must be submitted in an XML via Secure FTP, Secure Web Services, existing EDI ABI MQ interfaces. All responses back to the importer and/or broker will also be sent in the form of an XML message. There are no technical restrictions on the Multipurpose Internet Mail Extension (MIME) file types that DIS will accept; however, JPEG, GIF, PDF, MS Word Documents, and MS Excel Spreadsheets are preferred. Additional information pertaining to technical specifications (see DIS Implementation Guidelines) can be accessed on CBP.gov at the following link:
All data submitted and entered into the ACE Portal is subject to the Trade Secrets Act (18 U.S.C. 1905) and is considered confidential, except to the extent as otherwise provided by law (
Any provision in 19 CFR including, but not limited to, provisions found in parts 141, 142, 143, and 151 thereof relating to entry/entry summary processing that are inconsistent with the requirements set forth in this notice are waived for the duration of the test (
An ACE test participant may be subject to civil and criminal penalties, administrative sanctions, liquidated damages, and/or suspension from this test for any of the following:
• Failure to follow the terms and conditions of this test.
• Failure to exercise reasonable care in the execution of participant obligations.
• Failure to abide by applicable laws and regulations.
Suspensions for misconduct will be administered by the Executive Director, Trade Policy and Programs, Office of International Trade, CBP Headquarters. A written notice proposing suspension will be issued to the participant that apprises the participant of the facts or conduct warranting suspension and informs the participant of the date the suspension will begin. Any decision proposing suspension of a participant may be appealed in writing to the Assistant Commissioner, Office of International Trade within 15 calendar days of the notification date. An appeal of a decision of proposed suspension must address the facts or conduct charges contained in the notice and state how compliance will be achieved. In cases of non-payment, late payment, willful misconduct or where public health interests or safety is concerned, a suspension may be effective immediately.
To ensure adequate feedback, participants are required to participate in an evaluation of this test. CBP also invites all interested parties to comment on the design, implementation and conduct of the test at any time during the test period. CBP will publish the final results in the
1. Baseline measurements to be established through data analysis.
2. Questionnaires from both trade participants and CBP addressing such issues as:
• Workload impact (workload shifts/volume, cycle times, etc.).
• Cost savings (staff, interest, reduction in mailing costs, etc.).
• Policy and procedure accommodation.
• Trade compliance impact.
• Problem resolution.
• System efficiency.
• Operational efficiency.
• Other issues identified by the participant group.
A chronological listing of
• ACE Portal Accounts and Subsequent Revision Notices: 67 FR 21800 (May 1, 2002); 70 FR 5199 (February 1, 2005); 69 FR 5360 and 69 FR 5362 (February 4, 2004); 69 FR 54302 (September 8, 2004).
• ACE System of Records Notice: 71 FR 3109 (January 19, 2006).
• Terms/Conditions for Access to the ACE Portal and Subsequent Revisions: 72 FR 27632 (May 16, 2007); 73 FR 38464 (July 7, 2008).
• ACE Non-Portal Accounts and Related Notice: 70 FR 61466 (October 24, 2005); 71 FR 15756 (March 29, 2006).
• ACE Entry Summary, Accounts and Revenue (ESAR I) Capabilities: 72 FR 59105 (October 18, 2007).
• ACE Entry Summary, Accounts and Revenue (ESAR II) Capabilities: 73 FR 50337 (August 26, 2008); 74 FR 9826 (March 6, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR III) Capabilities: 74 FR 69129 (December 30, 2009).
• ACE Entry Summary, Accounts and Revenue (ESAR IV) Capabilities: 76 FR 37136 (June 24, 2011).
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
In accordance with the American Recovery and Reinvestment Act of 2009 (Pub. L. 111–05, approved February 17, 2009) (Recovery Act), and implementing guidance of the Office of Management and Budget (OMB), this notice advises that certain exceptions to the Buy American requirement of the Recovery Act have been determined applicable for work using Capital Fund Recovery Formula and Competition (CFRFC) grant funds. Specifically, an exception was granted to the Philadelphia Housing Authority for the purchase and installation of Uniform Federal Accessibility Standards (UFAS)-compliant combination washer/dryer units for the Paschall Village Phase I and II project.
Donald J. LaVoy, Deputy Assistant Secretary for Office of Field Operations, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4112, Washington, DC, 20410–4000, telephone number 202–402–8500 (this is not a toll-free number); or Dominique G. Blom, Deputy Assistant Secretary for Public Housing Investments, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4130, Washington, DC, 20410–4000, telephone number 202–402–8500 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at 800–877–8339.
Section 1605(a) of the Recovery Act provides that none of the funds appropriated or made available by the Recovery Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. Section 1605(b) provides that the Buy American requirement shall not apply in any case or category in which the head of a Federal department or agency finds that: (1) Applying the Buy American requirement would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality, or (3) inclusion of iron, steel, and manufactured goods will increase the cost of the overall project by more than 25 percent. Section 1605(c) provides that if the head of a Federal department or agency makes a determination pursuant to section 1605(b), the head of the department or agency shall publish a detailed written justification in the
In accordance with section 1605(c) of the Recovery Act and OMB's implementing guidance published on April 23, 2009 (74 FR 18449), this notice advises the public that, on February 29, 2012, upon request of the Philadelphia Housing Authority, HUD granted an exception to applicability of the Buy American requirements with respect to work, using CFRFC grant funds, in connection with the Paschall Village Phase I and II project. The exception was granted by HUD on the basis that the relevant manufactured goods (UFAS-compliant combination washer/dryer units) are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
In accordance with the American Recovery and Reinvestment Act of 2009 (Pub. L. 111–05, approved February 17, 2009) (Recovery Act), and implementing guidance of the Office of Management and Budget (OMB), this notice advises that certain exceptions to the Buy American requirement of the Recovery Act have been determined applicable for work using Capital Fund Recovery Formula and Competition (CFRFC) grant funds. Specifically, an
Donald J. LaVoy, Deputy Assistant Secretary for Office of Field Operations, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4112, Washington, DC, 20410–4000, telephone number 202–402–8500 (this is not a toll-free number); or Dominique G. Blom, Deputy Assistant Secretary for Public Housing Investments, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4130, Washington, DC, 20410–4000, telephone number 202–402–8500 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at 800–877–8339.
Section 1605(a) of the Recovery Act provides that none of the funds appropriated or made available by the Recovery Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. Section 1605(b) provides that the Buy American requirement shall not apply in any case or category in which the head of a Federal department or agency finds that: (1) Applying the Buy American requirement would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality, or (3) inclusion of iron, steel, and manufactured goods will increase the cost of the overall project by more than 25 percent. Section 1605(c) provides that if the head of a Federal department or agency makes a determination pursuant to section 1605(b), the head of the department or agency shall publish a detailed written justification in the
In accordance with section 1605(c) of the Recovery Act and OMB's implementing guidance published on April 23, 2009 (74 FR 18449), this notice advises the public that, on March 12, 2012, upon request of the Wilmington Housing Authority, HUD granted an exception to applicability of the Buy American requirements with respect to work, using CFRFC grant funds, in connection with the Southbridge project. The exception was granted by HUD on the basis that the relevant manufactured goods (condensing tankless water heaters) are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
In accordance with the Steward B. McKinney Homeless Assistance Act, as amended, HUD publishes a weekly
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone number 202–708–1234; TTY number for the hearing- and speech-impaired 202–708–2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD publishes a weekly notice in the
HUD generally publishes this notice each Friday. Today's notice announces that because of the size of HUD's next report, the Office of the Federal Register has informed HUD that it cannot accommodate HUD's request to schedule publication of the report on Friday, April 6, 2012. As a result, today's notice announces that HUD's next report listing unutilized, underutilized, excess, and surplus Federal property will be published in the
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before May 7, 2012.
Lisa Lierheimer, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358–2280; or email
Lisa Lierheimer, (703) 358–2104 (telephone); (703) 358–2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the Galapagos tortoise (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests renewal and amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal and amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families, genus, and species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess barasingha (
The applicant requests the re-issuance of their permits to re-export and re-import three captive born tigers (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
Fish and Wildlife Service, Interior.
Notice of availability.
We, the Fish and Wildlife Service (Service), announce the availability of our final comprehensive conservation plan (CCP) and finding of no significant impact (FONSI) for Bogue Chitto National Wildlife Refuge (NWR) in St. Tammany and Washington Parishes, Louisiana, and Pearl River County, Mississippi. In the final CCP, we describe how we will manage this refuge for the next 15 years.
You may obtain a copy of the CCP by writing to: Mr. Daniel Breaux, Southeast Louisiana National Wildlife Refuge Complex, Bayou Lacombe Centre, 61389 Highway 434, Lacombe, LA 70445. Alternatively, you may download the document from our Internet Site at
Mr. Daniel Breaux, at 985/882–2030 (telephone), 985/882–9133 (fax), or
With this notice, we finalize the CCP process for Bogue Chitto NWR. We started this process through a notice in the
We announce our decision and the availability of the final CCP and FONSI for Bogue Chitto NWR in accordance with the National Environmental Policy Act (NEPA) (40 CFR 1506.6 (b)) requirements. We completed a thorough analysis of impacts on the human environment, which we included in the draft comprehensive conservation plan and environmental assessment (Draft CCP/EA).
Compatibility determinations are also available in the CCP for: (1) Wildlife observation/photography; (2) recreational fishing; (3) recreational hunting; (4) environmental education and interpretation activities; (5) walking, hiking, and jogging; (6) camping; (7) forest management; (8) scientific research; (9) kayaking and canoeing; (10) boating; (11) nuisance animal control; and (12) bicycling.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
Established in 1980, Bogue Chitto NWR is one of eight refuges managed as part of the Southeast Louisiana National Wildlife Refuge Complex (Complex). The refuge headquarters is located about 9 miles northeast of Slidell, Louisiana. The 36,502-acre refuge is bisected by the Pearl River, with portions in St. Tammany and Washington Parishes, Louisiana, and Pearl River County, Mississippi. On the Mississippi side of the river, the refuge is bounded by Old River Wildlife Management Area (15,400 acres) to the north and by the State of Louisiana's Pearl River Wildlife Management Area (35,031 acres) to the south, thereby forming nearly an 87,000-acre block of protected forested wetlands and adjacent uplands within the Pearl River Basin.
The public has the opportunity to hunt white-tailed deer, squirrel, turkey, waterfowl, and hog. Fishing is also available. Threatened and endangered species found on the refuge are: Ringed map turtle (
We made copies of the Draft CCP/EA available for a 30-day public review and comment period via a
The Draft CCP/EA identified and evaluated three alternatives for managing the refuge over the next 15 years. After considering the comments we received and based on the professional judgment of the planning team, we selected Alternative B for implementation.
Implementing Alternative B will be the most effective management action for meeting the purposes of the refuge. Monitoring and surveying will be conducted systematically after assessing which species should be targeted, based on their population status and the staff's ability to indicate health of important habitat. Restoration efforts, the fire program, and forest management will reflect best management practices determined after examination of historical regimes, soil types and elevation, and the current hydrological system. Management actions will be monitored for effectiveness and adapted to changing conditions, knowledge, and technology. A Habitat Management Plan will be developed for future habitat projects and to evaluate previous actions.
This alternative identifies Holmes Island as a proposed Wilderness Study Area. We will maintain its wilderness character and within 10 years of the date of the CCP, will prepare a wilderness study report and additional NEPA documentation on whether Holmes Island should be formally designated by Congress as a unit of the National Wilderness Preservation System.
Public use programs will be updated to educate visitors about the reasons for management actions, and to provide quality experiences for refuge visitors. The Complex headquarters in Lacombe, Louisiana, will provide additional information about the refuge. Options and opportunities will be explored to expand visitor contact areas on the refuge. In an increasingly developing region, Alternative B will strive to achieve a balanced program of wildlife-dependent recreational activities and protection of wildlife resources.
This alternative also proposes to add six positions to current staffing dedicated primarily to the refuge in order to continue to protect resources, provide visitor services, and attain facility and equipment maintenance goals.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997, Public Law 105–57.
Bureau of Land Management, Interior.
Notice of availability.
Under the National Environmental Policy Act of 1969, Federal Land Policy and Management Act of 1976, and associated regulations, the Bureau of Land Management (BLM) has prepared a Final Environmental Impact Statement (EIS) that evaluates, analyzes, and discloses to the public anticipated impacts of the Greater Natural Buttes proposal to develop natural gas in Uintah County, Utah. This notice announces a 30-day availability period prior to preparation of a Record of Decision (ROD).
The Final EIS will be available for 30 calendar days following the date on which the Environmental Protection Agency publishes its Notice of Availability in the
Copies of the Final EIS have been sent to affected Federal, state, and local government agencies and to other stakeholders. Copies of the Final EIS are available for public inspection at the BLM Vernal Field Office, 170 South 500 East, Vernal, Utah, and on the Internet at:
For further information contact Stephanie Howard, Environmental Coordinator; telephone 435–781–4400; address 170 South 500 East, Vernal, Utah, 84078; email
The Greater Natural Buttes Project Area encompasses approximately 162,911 acres in the townships listed below in Uintah County, Utah:
Kerr-McGee Oil & Gas Onshore LP (KMG), a wholly-owned subsidiary of Anadarko Petroleum Corporation, proposed this project to develop their existing oil and gas leases by drilling 3,675 wells from 3,041 new well pads over a period of 10 years. The proposed action would result in approximately 12,685 acres of additional disturbance (about 7.8 percent of the total project area). The total estimated surface disturbance under this alternative would be 25,125 acres, or about 15.4 percent of the project area. BLM's purpose and need for the project is to respond to KMG's proposal while minimizing environmental impacts.
In response to a proposal submitted by KMG (Alternative A) the BLM published in the October 5, 2007,
A 45-day public comment period for the Draft EIS was held from July 16, 2010, through August 30 2010, as announced through the
The BLM prepared the Final EIS in coordination with the Bureau of Indian Affairs and Uintah County, who participated as formal cooperating agencies during the EIS process. The BLM also closely coordinated with the United States Fish and Wildlife Service and the EPA to ensure their concerns were adequately addressed. The Final EIS describes the changes made between the Draft EIS and Final EIS, and includes responses to the comments
Under the Resource Protection Alternative (the Agency Preferred Alternative), up to 3,675 new gas wells would be drilled from 1,484 new well pads over a period of 10 years, resulting in approximately 8,147 acres of additional disturbance (about 5.0 percent of the total project area). The total estimated surface disturbance under this alternative would be 20,615 acres, or about 12.7 percent of the project area. In coordination with the EPA, a Water Monitoring Plan was developed to address water quality impacts, and extensive applicant-committed measures, including an adaptive management strategy, were developed or refined to minimize air quality impacts.
This Final EIS is not a decision document. Following conclusion of the 30-day availability period, a ROD will be signed to disclose the BLM's final decision and any project Conditions of Approval. Availability of the ROD will be announced through local media, the BLM Vernal Web site, and the BLM's Utah Environmental Notification Bulletin Board.
Bureau of Land Management, Interior.
Notice of filing of Plats of Survey.
The plats of survey described below are scheduled to be officially filed in the New Mexico State Office, Bureau of Land Management, Santa Fe, New Mexico, thirty (30) calendar days from the date of this publication.
The plat, in five sheets, representing the dependent resurvey and survey, in Township 18 South, Range 12 West, of the New Mexico Principal Meridian, accepted March 8, 2012, for Group 1104 NM.
The supplemental plat, creating new lots in section 5, in Township 18 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 6, in Township 18 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 4, in Township 18 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 3, in Township 18 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The plat, in ten sheets, representing the dependent resurvey and survey, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian, accepted March 8, 2012, for Group 1104 NM.
The supplemental plat, creating new lots in section3, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 4, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 9, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 15, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 10, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 16, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 20, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 21, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 22, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 23, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 27, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 28, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 29, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 30, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 31, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 32, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 33, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
The supplemental plat, creating new lots in section 35, in Township 17 South, Range 12 West, of the New Mexico Principal Meridian NM, accepted March 15, 2012.
These plats will be available for inspection in the New Mexico State Office, Bureau of Land Management, 301 Dinosaur Trail, Santa Fe, New Mexico. Copies may be obtained from this office upon payment. Contact Marcella Montoya at 505–954–2097, or by email at
These plats are scheduled for official filing 30 days from the notice of publication in the
A plat will not be officially filed until the day after all protests have been dismissed and become final or appeals from the dismissal affirmed.
A person or party who wishes to protest against any of these surveys must file a written protest with the Bureau of Land Management New Mexico State Director stating that they wish to protest.
A statement of reasons for a protest may be filed with the Notice of protest to the State Director or the statement of reasons must be filed with the State Director within thirty (30) days after the protest is filed.
National Park Service, Interior.
Notice of availability of a record of decision for the Nabesna Off-Road Vehicle Management Plan and Final Environmental Impact Statement (FEIS), Wrangell-St. Elias National Park and Preserve.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4332(2)(C), the National Park Service (NPS) announces the availability of a Record of Decision (ROD) that documents decisions regarding off-road vehicle management in the Nabesna District of Wrangell-St. Elias National Park and Preserve. The ROD describes the management actions, trail improvements, regulations, and mitigation (including monitoring) that will implement Alternative 6, identified in the FEIS as the preferred alternative. The ROD also describes the rationale used in making the decision and identifies the environmentally preferable alternative. The ROD includes a recommendation for the reclassification of eligible wilderness, which was approved by the NPS Director on January 18, 2012. The reclassification resulted in a net gain of 16,929 acres of eligible wilderness in the analysis area.
Copies of the ROD will be available for public review at
The ROD describes management actions necessary for managing off-road vehicles (ORVs) for recreational and subsistence use on trails in the Nabesna District of Wrangell-St. Elias National Park and Preserve. The trails were in existence at the time the 13.2-million-acre park and preserve was established in 1980. Beginning in 1983, the park issued permits for recreational ORV use of these established trails, initially in accordance with 36 CFR 13.14(c), which was replaced by 43 CFR 36.11(g)(2) in 1986. The trails also provide for subsistence ORV use and access to inholdings. On June 29, 2006, the National Parks Conservation Association, Alaska Center for the Environment, and The Wilderness Society filed a lawsuit against NPS in the United States District Court for the District of Alaska regarding recreational ORV use on the nine trails that are the subject of this EIS. They challenged the NPS issuance of recreational ORV permits, asserting that NPS failed to make the required finding that recreational ORV use is compatible with the purposes and values of the Park and Preserve. They also claimed that the NPS failed to prepare an environmental analysis of recreational ORV use as required by NEPA.
In the May 15, 2007, settlement agreement, NPS agreed to endeavor to complete an EIS and ROD by December 31, 2010 (this was extended to December 31, 2011).
A Draft Environmental Impact Statement (DEIS) was published in August 2010 and made available for a 90-day public comment period. During the 90-day public comment period, five public meetings were held in Fairbanks, Anchorage, Tok, Slana, and Copper Center, Alaska. The NPS received 153 comment letters from various agencies, organizations, and individuals. In response to public comment, the FEIS analyzed a sixth alternative that was identified as the NPS preferred alternative and that combined elements of Alternatives 4 and 5 from the DEIS. Additionally, the FEIS responded to substantive comments in Chapter 5 and numerous changes were made in the FEIS as a result of public comment. The FEIS considered a reasonable range of alternatives based on project purpose and need and considering park resources and values, and public input.
Alternative 6 was identified as the NPS preferred alternative. All trails would be improved to at least a maintainable condition. After trail improvement, recreational ORV use would be permitted on trails in the national preserve (Suslota, Caribou Creek, Trail Creek, Lost Creek, Soda Lake, and Reeve Field) but not on trails in the national park (Boomerang, Tanada Lake, and Copper Lake). Subsistence ORV use would be subject to monitoring and adaptive management steps and would be confined to designated trail corridors in park wilderness.
Bruce Rogers, Project Manager, Wrangell-St. Elias National Park and Preserve, P.O. Box 439, Copper Center, Alaska 99573. Telephone: 907–822–7276.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before March 17, 2012. Pursuant to § 60.13 of 36 CFR Part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th Floor, Washington DC 20005; or by fax, 202–371–6447. Written or faxed comments should be submitted by April 23, 2012. Before including your
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to partially review the final initial determination (“ID”) of the presiding administrative law judge (“ALJ”) in the above-captioned investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”). The ALJ found no violation of section 337.
James A. Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3065. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on January 27, 2011, based on a complaint filed by Schweitzer-Mauduit International, Inc. (“Schweitzer”) of Alpharetta, Georgia. 76 FR 4935 (January 27, 2011). The complaint alleges violations of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the sale for importation, importation, or sale after importation of certain reduced ignition proclivity cigarette paper wrappers and products containing same by reason of infringement of certain claims of U.S. Patent Nos. 5,878,753 (“the `753 patent”) and 6,725,867 (“the `867 patent”). The Commission's notice of investigation named Astra Tobacco Corporation of Chapel Hill, North Carolina; delfortgroup AG of Traun, Austria; LIPtec GmbH of Neidenfels, Germany; and Julius Glatz GmbH of Neidenfels, Germany as respondents.
On April 15, 2011, the Commission issued notice of its determination not to review an ID (Order No. 5) granting Schweitzer's motion to amend the complaint and notice of investigation to add seven more respondents: Dr. Franz Feurstein GmbH of Traun, Austria; Papierfabrik Wattens GmbH & Co. KG of Wattens, Austria; Dosal Tobacco Corp. of Miami, Florida; Farmer's Tobacco Co. of Cynthia, Kentucky; KneX Worldwide, LLC of Charlotte, North Carolina; S&M Brands, Inc. of Keysville, Virginia; Tantus Tobacco LLC of Russell Springs, Kentucky.
On December 1, 2011, the Commission determined not to review an ID (Order No. 30) of the administrative law judge terminating Respondents delfortgroup AG, Dr. Franz Feurstein GmbH, Papierfabrik Wattens GmbH & Co. KG, Astra Tobacco Corp., Dosal Tobacco Corp., Farmer's Tobacco Co., S&M Brands, Inc., and Tantus Tobacco LLC (collectively, the “Delfort Respondents”) from the investigation. Respondents Julius Glatz GmbH, LIPtec GmbH, and KneX Worldwide LLC (collectively, “Glatz”) remain in the investigation.
An evidentiary hearing was held from October 31, 2011, to November 8, 2011. On February 1, 2012, the presiding administrative law judge issued a final initial determination finding no violation of section 337 in the above-identified investigation. Specifically, the ALJ found that there was no violation with respect to either the `753 patent or the `867 patent by Glatz. The ALJ also issued a recommended
Schweitzer filed a petition for review of the final ID. Glatz filed a contingent petition for review. Each of the parties filed a response to the petitions for review.
Having examined the final ID, the petitions for review, the responses thereto, and the relevant portions of the record in this investigation, the Commission has determined to review the final ID as follows. With respect to the `753 patent, the Commission has determined to review the construction of the term “gradually” in the asserted claims and the issues of direct and indirect infringement, obviousness, definiteness, utility, and the technical prong of the domestic industry requirement in the ID. With respect to the `867 patent, the Commission has determined to review the construction of the term “film forming composition” in the asserted claims and the issues of direct and indirect infringement, priority date, statutory bar under 35 U.S.C. 102(b), anticipation, obviousness, written description, enablement, and the technical prong of the domestic industry requirement in the ID.
The parties are requested to brief their positions on only the following questions, with reference to the applicable law and the evidentiary record:
(1) In the asserted claims of the `753 patent, the ALJ defined the term “gradually” to mean “incrementally.”
(a) Does the term “incrementally” carry a connotation of a change that occurs in discrete increments, such as in a staircase, that is unnecessarily limiting? In your answer, please address the reference to a “ramp-like profile” in dependent claim 3 and assume that the Commission concurs with the ALJ's determination that “ramp-like profile” refers to the physical shape of the claimed bands.
(b) Assuming that the term “incrementally” is unnecessarily limiting, would the term “gradually” be construed to mean an increase or decrease in permeability that occurs in small steps or degrees and that is not abrupt or sudden?
(c) How would a person of ordinary skill in the art distinguish between an increase or decrease that is in small steps or degrees from one that is abrupt or sudden? If such a person would be unable to make such a distinction, are the asserted claims indefinite as insufficient “to permit a potential competitor to determine whether or not he is infringing”?
(d) Address how, if at all, adoption of the claim construction indicated in (b) above would affect the ALJ's analysis of infringement, validity, and the domestic industry.
(2) As to the `753 patent, what is the significance of points that fall entirely within the treated area?
(3) Is the iodine test an independent basis for establishing infringement of the asserted claims of the `753 patent and for satisfying the technical prong of the domestic industry requirement with respect to the `753 patent?
(4) The Commission has determined not to review the ALJ's construction of the term “film forming composition” as it appears in the asserted claims of the `753 patent. Is the Commission bound by the parties' stipulation that the term should be construed in the same way in the `867 patent?
(5) Assume for purposes of argument that the Commission is not bound by the stipulation, and note that the specification of the `753 patent but not the `867 patent contains the sentence “Fibrous slurries applied from an aqueous solution are also effective.” `753 patent at col. 4, ll.59–60. Does that distinction warrant a different outcome in construing “film forming composition” in the `867 patent?
(6) If “applying” in claim 36 of the `867 patent is construed to refer to both single applications and multiple applications, is claim 36 invalid for failure to satisfy the written description or enablement requirements of 35 U.S.C. 112?
(7) Did Schweitzer request samples of all accused products? On provision of the samples, were representations made by Glatz as to the representativeness of the samples provided? Did Schweitzer make further attempts to obtain samples of the other accused products? Please respond with a discussion of any relevant interrogatories, requests for production, motions practice (including motions to compel), and any pretrial conferences (excluding any settlement or mediation conferences).
In connection with the final disposition of this investigation, the Commission may issue (1) an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) cease and desist orders that could result in respondents being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or are likely to do so. For background information, see the Commission Opinion,
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Persons filing written submissions must do so in accordance with Commission rule 210.4(f), 19 CFR 210.4(f), which requires electronic filing. The original document and eight true copies thereof must also be filed on or before the deadlines stated above with the Office of the Secretary. Any person desiring to submit a document (or portion thereof) to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment is granted by the Commission will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary and on EDIS.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and under sections 210.42–210.46, 210.50(a) of the Commission's Rules of Practice and Procedure (19 CFR 210.42–210.46, 210.50(a)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on March 6, 2012, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Fabri-Kal Corporation of Kalamazoo, Michigan. A supplement to the complaint was filed on March 20, 2012. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain food containers, cups, plates, cutlery, and related items and packaging thereof by reason of infringement of U.S. Trademark Registration No. 3,021,945 (“the `945 trademark”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2011).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on April 2, 2012,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(C) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain food containers, cups, plates, cutlery, and related items and packaging thereof that infringe the `945 trademark, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Fabri-Kal Corporation, 600 Plastics Place, Kalamazoo, MI 49001.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)–(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on February 7, 2012, and an amended complaint was filed with the U.S. International Trade Commission on March 2, 2012 and a supplement was filed on March 15, 2012, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Immersion Corporation of San Jose, California. The amended complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain mobile electronic devices incorporating haptics by reason of infringement of certain claims of U.S. Patent No. 6,429,846 (“the `846 patent”); U.S. Patent No. 7,592,999 (“the `999 patent”); U.S. Patent No. 7,969,288 (“the `288 patent”); U.S. Patent No. 7,982,720 (“the `720 patent”); U.S. Patent No. 8,031,181 (“the `181 patent”); and U.S. Patent No. 8,059,105 (“the `105 patent”). The amended complaint further alleges that an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The amended complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of the Secretary, Docket Services Division, U.S. International Trade Commission, telephone (202) 205–1802.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2011).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain mobile electronic devices incorporating haptics that infringe one or more of claim 5 of the `846 patent; claims 1–3, 6, 8–11, and 13–16 of the `999 patent; claims 18–26 of the `288 patent; claims 1–8, 10–19, 22–25, and 27–33 of the `720 patent; claims 1–3, 5, 6, 8, 9, 11, 13, 15, 17–25, and 27–34 of the `181 patent; and claims 1–5, 7–15, and 18–21 of the `105 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Immersion Corporation, 30 Rio Robles, San Jose, CA 95134.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the amended complaint is to be served:
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge; and
(4) The presiding Administrative Law Judge is directed to promptly issue an initial determination amending the notice of investigation upon complainant's request to reflect any changes to the `846 patent resulting from the issuance by the Patent and Trademark Office of a certificate of correction in response to the currently pending correction request.
The Office of Unfair Import Investigations will not participate as a party in this investigation.
Responses to the amended complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)–(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the amended complaint and the notice of investigation. Extensions of time for submitting responses to the amended complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the amended complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the amended complaint
By order of the Commission.
International Trade Commission.
April 12, 2012 at 9:30 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205–2000.
Open to the public.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By Order of the Commission.
International Trade Commission.
April 13, 2012 at 11 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205–2000.
Open to the public.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Notice is hereby given that on March 28, 2012, a proposed Consent Decree (“Consent Decree”) in
In this action the United States, acting on behalf of the U.S. Environmental Protection Agency, filed a Complaint against Coltec Industries, Inc., a marine compression-ignition engine manufacturer, and National Steel and Shipbuilding Company, a marine vessel manufacturer (“Settling Defendants”), seeking civil penalties and injunctive relief for alleged non-compliance with Section 213 of the Clean Air Act, as amended, 42 U.S.C. 7547, and its implementing Marine Compression-Ignition Rules, at 40 CFR part 94. The Complaint alleges that Settling Defendants failed to comply with the certificate of conformity requirements by manufacturing or using uncertified and/or unlabeled or defectively labeled marine diesel engines in their respective operations.
The Consent Decree requires Settling Defendants to pay a $280,000 civil penalty to the United States. Settling Defendants will perform a Supplemental Environmental Project at an estimated cost of $500,000, which involves the installation of Selective Catalytic Reduction emissions control technology at a marine engine test stand operated at Settling Defendant Coltec Industries, Inc.'s marine engine manufacturing facility in Beloit, Wisconsin. They have also agreed to label or re-label the engines at issue in the Complaint with special certification labels that require Settling Defendants to treat the engines at issue as if they were originally certified under the Marine CI Engine Regulations, including complying with all applicable maintenance, repair, adjustment and recordkeeping requirements.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site, to
30-Day Notice of information collection: FFL out-of-business records request.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until May 7, 2012. This process is conducted in accordance with 5 CFR 1320.10
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best way to ensure your comments are received is to email them to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
Firearms licensees are required to keep records of acquisition and disposition. These records remain with the licensee as long as they are in business. The ATF F 5300.3A, FFL Out-of-Business Records Request is used by ATF to notify licensees who go out of business. When discontinuance of the business is absolute, such records shall be delivered within thirty days following the business discontinuance to the ATF Out-of-Business Records Center.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, Room 2E–508, 145 Street NE., Washington, DC 20530.
Veterans' Employment and Training Service (VETS), Department of Labor.
HVRP grants are intended to address two objectives: (1) To provide services to assist in reintegrating homeless veterans into meaningful employment within the labor force, and (2) to stimulate the development of effective service delivery systems that will address the complex problems facing homeless veterans.
The full Solicitation for Grant Application is posted on
The Bureau of Labor Statistics Data Users Advisory Committee will meet on Thursday May 17, 2012. The meeting will be held in the Postal Square Building, 2 Massachusetts Avenue NE.; Washington, DC.
The Committee provides advice to the Bureau of Labor Statistics from the points of view of data users from various sectors of the U.S. economy, including the labor, business, research, academic, and government communities, on technical matters related to the collection, analysis, dissemination, and use of the Bureau's statistics, on its published reports, and on the broader aspects of its overall mission and function.
The meeting will be held in Meeting Rooms 1, 2, and 3 of the Postal Square Building Conference Center. The schedule and agenda for the meeting are as follows:
8:30 a.m. Registration.
8:45 a.m. Introductions, welcome, and brief review of agency developments.
9 a.m. Federal Advisory Committee Membership.
9:15 a.m. Employment Measures by Age of Firm.
10:15 a.m. Treatment of Contractors in BLS Data.
1 p.m. Prospectus on New Benefit Cost Measures.
2 p.m. Reinventing the
3:15 p.m. Brainstorming Session—suggestions for data or program improvements.
3:45 p.m. Meeting wrap-up.
4 p.m. The Shifting Composition of Workplace Injuries and Illnesses (extra/optional topic for interested members).
The meeting is open to the public. Any questions concerning the meeting should be directed to Kathy Mele, Data Users Advisory Committee, on 202–691–6102. Individuals who require special accommodations should contact Ms. Mele at least two days prior to the meeting date.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified by the 1,2-Dibromo-3-Chloropropane (DBCP) Standard (29 CFR 1910.1044).
Comments must be submitted (postmarked, sent, or received) by June 5, 2012.
Theda Kenney or Todd Owen Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N–3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (i.e., employer) burden, conducts a preclearance consultation program to provide the public with an opportunity to comment on proposed and continuing information collection requirements in accord with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)). This program ensures that information is in the desired format, reporting burden (time and costs) is minimal, collection instruments are clearly understood, and OSHA's estimate of the information collection burden is accurate. The Occupational Safety and Health Act of 1970 (the OSH Act) (29 U.S.C. 651
The information collection requirements in the DBCP Standard provide protection for workers from the adverse health effects associated with exposure to DBCP. In this regard, the DBCP Standard requires employers to: Monitor workers' exposure to DBCP; monitor worker health, and provide workers with information about their exposures and the health effects of exposure to DBCP.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
After extensive research, OSHA found no U.S. employer who currently produce DBCP or DBCP-based end-use products, most likely because the Environmental Protection Agency (EPA) registration suspension for this substance remains in effect; therefore, no cost or time burdens accrue to employers under the Standard. The Agency requests one hour for OMB to approve the information collection provisions of the Standard so that it can enforce the paperwork requirements of the Standard if EPA lifts the suspension or technology develops new applications for DBCP.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627).
Comments and submissions are posted without change at
Information on using the
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Planetary Protection Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Tuesday, May 1, 2012, 8:30 a.m. to 5 p.m., and Wednesday, May 2, 2012, 8:30 a.m. to 3:15 p.m., Local Time.
NASA Headquarters, 300 E Street SW., Room 3H46, Washington, DC 20546.
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–4452, fax (202) 358–1377, or
The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport
National Aeronautics and Space Administration.
Notice of Meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration announces a meeting of the Commercial Space Committee of the NASA Advisory Council.
Tuesday, May 1, 2012, 8 a.m.–2:45 p.m.; Local Time.
Ohio Aerospace Institute (OAI); 22800 Cedar Point Road; Conference Room: The President's Room; Cleveland, OH 44142.
Mr. Thomas W. Rathjen, Human Exploration and Operations Mission Directorate, National Aeronautics and Space Administration Headquarters, 300 E Street SW., Washington, DC 20546, 202–358–0552;
The agenda topics for the meeting will include:
The meeting will be open to the public up to the seating capacity of the room. This meeting is also available telephonically and by WebEx. You must use a touch tone phone to participate in this meeting. Any interested person may dial access number, 1–866–692–3158 or 1–203–418–3123 and then enter the numeric participant passcode: 5012012 followed by the # sign. To join via WebEx the link is
In accordance with Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463 as amended), the National Science Foundation announces the following meeting:
The National Transportation Safety Board has cancelled the Sunshine Act meeting previously scheduled for Tuesday, April 10, 2012, at the NTSB Conference Center, 429 L'Enfant Plaza SW., Washington, DC. The matter scheduled to be considered at the Sunshine Act meeting concerned Safety Recommendations to the National Air Racing Group (NAG) Unlimited Division and Reno Air Racing Association (RARA) concerning the September 16, 2011, accident at the Reno National Championship Air Races (NCAR) in Reno, Nevada.
Telephone: (202) 314–6100.
Candi Bing, (202) 314–6403 or by email at
Pursuant to delegation by the Commission dated December 29, 1972, published in the
A Licensing Board is being established to consider a petition filed on March 8, 2012 by Jones River Watershed Association and by Pilgrim Watch seeking leave to reopen the record and request a hearing. Petitioners filed a correction and supplement to their petition on March 15, 2012. The petition pertains to the January 25, 2006 application from Entergy Nuclear Operations, Inc. to renew the current operating license for Pilgrim Nuclear Power Station, which expires on June 8, 2012, for an additional twenty years.
The Board is comprised of the following administrative judges:
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-filing rule, which the NRC promulgated in August 2007 (72 FR 49,139).
The Commission has requested that the Board issue a decision on the motion to reopen and request for hearing as expeditiously as possible, and no later than May 29, 2012.
Dated: Issued at Rockville, Maryland, this 2nd day of April 2012.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of March 2012. A copy of each application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
Diane L. Titus at (202) 551–6810, SEC, Division of Investment Management, Office of Investment Company Regulation, 100 F Street NE., Washington, DC 20549–8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 2.11 to (1) add a new subparagraph (a)(6) that addresses the authority of the Exchange and its routing broker-dealer, Direct Edge ECN LLC d/b/a DE Route (“DE Route”) to cancel orders if and when a systems, technical or operational issue (herein, each individually referred to as a “Systems Issue,” and collectively referred to as “Systems Issues”) occurs, and (2) amend subparagraph (a)(4) and add new subparagraph (a)(7) to describe the operation of an error account for DE Route. The text of the proposed rule change is available on the Exchange's Web site, at the Exchange's principal office and in the Public Reference Room of the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 2.11 by adding subparagraph (a)(6) to address the authority of the Exchange and DE Route to cancel orders when a Systems Issue occurs, and by amending subparagraph (a)(4) and adding subparagraph (a)(7) to describe the
DE Route is the approved outbound router of EDGX,
A Systems Issue may arise at DE Route, a Trading Center or the Exchange that may cause the Exchange or DE Route to take steps to cancel orders if the Exchange or DE Route determines that such action is necessary to maintain a fair and orderly market. The examples set forth below describe some of the circumstances in which the Exchange or DE Route may decide to cancel orders.
If DE Route or a Trading Center experiences a Systems Issue that results in DE Route not receiving responses to immediate or cancel (“IOC”) orders that it sent to the Trading Center, and that issue is not resolved in a timely manner, DE Route may need to cancel the routed orders affected by the issue.
If the Exchange experiences a Systems Issue, the Exchange may take steps to cancel all outstanding orders affected by that issue and notify affected Members of the cancellations. In those cases, the Exchange would seek to cancel, via DE Route, any routed orders related to the Members' initial orders.
An error position can arise out of Systems Issues experienced by DE Route, the Exchange or a Trading Center. Connectivity and order processing related issues are the most common types of Systems Issues that DE Route would expect could result in an error position. Connectivity issues, for example, would entail problems with the manner in which DE Route sends or receives order, execution and cancellation messages to or from other Trading Centers. Connectivity issues could arise either from DE Route's systems or from the Trading Center's systems. For example, if DE Route's connection to a Trading Center is interrupted after delivering an order, DE Route may be unable to receive a timely execution report from the Trading Center, and as a consequence may cancel the Member's order. But DE Route may later discover after the connection was restored that the order was actually executed by the Trading Center, resulting in an error position. Similarly, if the Trading Center attempted to cancel all open orders that it had previously accepted due to a Systems Issue, but either transmitted cancellations on orders that had previously been executed, or subsequently submitted executions of the orders to The Depository Trust Clearing Corporation (“DTCC”) for clearance and settlement, an error position would result.
An error position might also result if DE Route failed to process order messages correctly. For example, if DE Route's connection to the Exchange is temporarily interrupted and DE Route were to erroneously re-route orders that had previously been executed after the connection was restored, DE Route will have received executions of orders where there were effectively no corresponding orders on the Exchange. In this case, the executions would not necessarily be nullified since DE Route is a regular member of other Trading Centers and is therefore subject to those venues' policies for honoring trades.
A Systems Issue experienced by the Exchange could also result in an error position relating to a routed order. For example, if an order were routed from the Exchange to a Trading Center by DE Route, and then due to a Systems Issue the Exchange would not accept the resulting execution of the order (but rather transmitted a cancellation to the Member instead), an error position would result. Another example might be where a Systems Issue experienced by the Exchange automatically changed the number of shares associated with all orders from one or more Members, or all orders in one or more symbols (in either case resulting in overfills), or changed the symbol on one or more orders (resulting in executions in the wrong stocks), where such orders were routed by DE Route to a Trading Center for execution.
Regardless of how an error position arose, DE Route would not typically learn about an error position until the next business day following the trade date, usually (but not exclusively) during the clearing process when a Trading Center has submitted to DTCC a transaction for clearance and
The foregoing assignment methodology is designed to ensure that an error position is assigned to Members in a non-discriminatory manner. Thus, if DE Route reasonably concludes that it is unable to trace each erroneous execution comprising an error position back to one or more Members' orders, then DE Route will assume the entire amount of the error position in the error account. Moreover, if DE Route reasonably concludes, due to the number of erroneous executions and/or the number of Members potentially impacted, that it would not be able to trace each erroneous execution comprising an error position back to such Members in a timely manner (which will be defined to mean by the first business day following the trade date on which the error position was established, or “T+1”), then DE Route will assume the entire amount of the error position in the error account. When an error position is acquired into DE Route's error account, it will then be liquidated as soon as practicable pursuant to proposed paragraph (a)(7) of Rule 2.11.
The Exchange proposes to amend EDGX Rule 2.11 to amend subparagraph (a)(4) and add new subparagraphs (a)(6) and (a)(7) to address the cancellation of orders due to Systems Issues and the use of an error account by DE Route, respectively.
Specifically, under proposed subparagraph (a)(6), the Exchange or DE Route would be expressly authorized to cancel orders as may be necessary to maintain fair and orderly markets if a Systems Issue occurred at the Exchange, DE Route or a Trading Center.
Under amended subparagraph (a)(4) and new subparagraph (a)(7), DE Route would be authorized, when providing routing services to the Exchange, to maintain an error account for the purpose of liquidating an error position acquired as a result of Systems Issues experienced either by DE Route itself, the Exchange or at a Trading Center, as described above. The rule amendments provide that DE Route would only assume an error position in the error account under documented circumstances when the error position could not fairly and practicably be assigned to one or more Members.
With proposed new subparagraph (a)(7) of Rule 2.11, the Exchange is proposing that DE Route would consider the following factors in determining whether the entire amount of an error position can be fairly and practicably assigned to one or more Members: (i) Whether DE Route has accurate and sufficient information to trace each erroneous execution comprising an error position back to one or more Members' orders; and (ii) whether DE Route is able to review available information in order to assign the entire amount of an error position to all affected Members by the first business day following the trade date on which the error position was created (considering, among other factors, the size of the error position and the total number of Members potentially impacted). If as a result of the foregoing, DE Route reasonably concludes that the entire amount of an error position can be assigned to one or more Members in a timely and non-discriminatory manner, the entire amount of the error position will accordingly be assigned to such Members.
There may be scenarios, however, in which the entire amount of a particular error position resulting from a Systems Issue cannot be assigned to Members, or cannot be assigned to Members in a non-discriminatory manner. For example, in the event that there is insufficient and/or inaccurate information, or the routed order that led to an erroneous execution could not be attributed to a Member's order, then DE Route would not be able to trace erroneous executions back to a Member's order. Also, if the information available would enable tracing of some, but not all, of the erroneous executions comprising an error position to Members, then the Exchange believes that assigning only a portion of an error position to Members might unfairly discriminate against those Members. In these circumstances, therefore, DE Route may reasonably conclude, pursuant to the factors set forth in proposed Rule 2.11(a)(7), that it cannot assign the entire amount of an error position to one or more Members, or cannot assign it in a non-discriminatory manner, and must instead acquire the entire amount of the error position into the error account.
There may also be scenarios in which the entire amount of a particular error position resulting from a Systems Issue cannot practicably be assigned to Members in a timely manner. For example, the number of erroneous executions comprising an error position, and/or the number of Members potentially impacted, could be such that the research necessary to trace all of the erroneous executions comprising the error position back to particular Members' orders could reasonably be expected to extend beyond T+1. The Exchange believes that assigning an error position to a Member beyond T+1 significantly increases the potential for disruptions in the normal clearance and settlement process,
DE Route would be required to document the factors considered in determining to assume an error position in the error account. Similarly, if DE Route determined that an error position could be assigned to a particular Member in a timely fashion, then DE Route would be required to document the rationale for the assignment to that Member. The assignment of any error position to any one or more Members would be required to be done in a non-discriminatory fashion; this includes, for example, that the entire amount of an error position must be assigned to all Members to which such position could reasonably be attributed. If time would not permit a full analysis of all Members to which a position could be attributed, then DE Route would not assign any portion of the error position to Members, but would rather have to assume the error position in its error account. Documentation reflecting assignment of an error position to one or more Members shall reflect such methodology.
Proposed subparagraph (a)(7) would further describe the manner in which DE Route would liquidate an error position from the error account. When, as and if DE Route determined to book an error position to its error account, DE Route would be required to liquidate such error position as soon as practicable in a manner that would effectively confer investment discretion over the error position to a third-party broker-dealer. Specifically, DE Route would be required to: (i) Provide complete time and price discretion to the third-party broker-dealer in the liquidation of the error position, including that it would not be permitted to exercise any influence or control over the timing or methods of trading; and (ii) establish and implement written policies and procedures in accordance with paragraph (a)(7) that are reasonably designed to restrict the flow of any confidential and proprietary information associated with the liquidation of an error position between the Exchange and DE Route, on one hand, and the third-party broker-dealer, on the other.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change; or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing with the Commission a proposal to amend the certificate of incorporation of BATS Global Markets, Inc. (the “Corporation”).
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
On May 13, 2011, the Corporation, the sole stockholder of the Exchange, filed a registration statement on Form S–1 with the Commission seeking to register shares of Class A common stock and to conduct an initial public offering of those shares, which will be listed for trading on the Exchange (the “IPO”). In connection with its IPO, the Corporation intends to amend and restate its certificate of incorporation (the “New Certificate of Incorporation”). The Exchange previously received Commission approval of certain substantive amendments to the certificate of incorporation of the Corporation that comprise changes included in the New Certificate of Incorporation.
First, to avoid confusion in the numbering of its certificate of incorporation, rather than re-naming the New Certificate of Incorporation the “Third Amended and Restated Certificate of Incorporation,” the Corporation intends to simply name the New Certificate of Incorporation the “Amended and Restated Certificate of Incorporation.” Accordingly, the Exchange proposes to change certain references throughout the New Certificate of Incorporation to delete all references to the “Second” and “Third” Amended and Restated Certificate of Incorporation.
Second, the Exchange, on behalf of the Corporation, proposes changes to the New Certificate of Incorporation in connection with a 4.75-for-1 reverse stock split (the “Reverse Stock Split”) of the outstanding shares of common stock of the Corporation (“Common Stock”). Accordingly, the number of authorized shares of the Corporation's, both in the aggregate and as set forth by class, as codified in Section 4.01 of the New Certificate of Incorporation, will be adjusted. The Corporation also plans to adjust the preferred stock of the Corporation consistent with the Reverse Stock Split. In light of the Reverse Stock Split, the proposed amendment also recalculates the share holding threshold below which a holder of Class B shares loses the right to hold Class B shares, resulting in those shares automatically converting into Class A shares, as set forth in Section 4.04(c)(v)(B) of the New Certificate of Incorporation. The par value of the Corporation's Common Stock will remain $0.01 per share.
Finally, the Exchange, on behalf of the Corporation, proposes to correct certain cross-referencing errors in Sections 5.01(c) and 5.01(d) of the certificate of incorporation.
The purpose of this rule filing is to permit the Corporation, the sole stockholder of the Exchange, to adopt the New Certificate of Incorporation, as modified by this proposal. The changes described herein relate to the certificate of incorporation of the Corporation only, not to the governance of the Exchange. The Exchange will continue to be governed by its existing certificate of incorporation and by-laws. The stock in, and voting power of, the Exchange will continue to be directly and solely held solely by the Corporation. The governance of the Exchange will
The Exchange believes that its proposal is consistent with the requirements of the Act and rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change imposes any burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Exchange has argued that the proposed rule change is consistent with the protection of investors and the public interest because it would permit the Corporation to immediately amend its certificate of incorporation to facilitate the Corporation's IPO, and because the proposed amendments would not impact the ownership or governance of the Exchange.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing with the Commission a proposal to amend the certificate of incorporation of BATS Global Markets, Inc. (the “Corporation”).
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
On May 13, 2011, the Corporation, the sole stockholder of the Exchange, filed a registration statement on Form S–1 with the Commission seeking to register shares of Class A common stock and to conduct an initial public offering of those shares, which will be listed for trading on the Exchange (the “IPO”). In connection with its IPO, the Corporation intends to amend and restate its certificate of incorporation (the “New Certificate of Incorporation”). The Exchange previously received Commission approval of certain substantive amendments to the certificate of incorporation of the Corporation that comprise changes included in the New Certificate of Incorporation.
First, to avoid confusion in the numbering of its certificate of incorporation, rather than re-naming the New Certificate of Incorporation the “Third Amended and Restated Certificate of Incorporation,” the Corporation intends to simply name the New Certificate of Incorporation the “Amended and Restated Certificate of Incorporation.” Accordingly, the Exchange proposes to change certain references throughout the New Certificate of Incorporation to delete all references to the “Second” and “Third” Amended and Restated Certificate of Incorporation.
Second, the Exchange, on behalf of the Corporation, proposes changes to the New Certificate of Incorporation in connection with a 4.75-for-1 reverse stock split (the “Reverse Stock Split”) of the outstanding shares of common stock of the Corporation (“Common Stock”). Accordingly, the number of authorized shares of the Corporation's, both in the aggregate and as set forth by class, as codified in Section 4.01 of the New Certificate of Incorporation, will be adjusted. The Corporation also plans to adjust the preferred stock of the Corporation consistent with the Reverse Stock Split. In light of the Reverse Stock Split, the proposed amendment also recalculates the share holding threshold below which a holder of Class B shares loses the right to hold Class B shares, resulting in those shares automatically converting into Class A shares, as set forth in Section 4.04(c)(v)(B) of the New Certificate of Incorporation. The par value of the Corporation's Common Stock will remain $0.01 per share.
Finally, the Exchange, on behalf of the Corporation, proposes to correct certain cross-referencing errors in Sections 5.01(c) and 5.01(d) of the certificate of incorporation.
The purpose of this rule filing is to permit the Corporation, the sole stockholder of the Exchange, to adopt the New Certificate of Incorporation, as modified by this proposal. The changes described herein relate to the certificate of incorporation of the Corporation only, not to the governance of the Exchange. The Exchange will continue to be governed by its existing certificate of incorporation and by-laws. The stock in, and voting power of, the Exchange will continue to be directly and solely held solely by the Corporation. The governance of the Exchange will continue under its existing structure, which provides for a ten member board of directors reflecting diverse representation of industry, non-industry and exchange members, currently including (i) the chief executive officer of the Exchange, (ii) two industry directors, (iii) two Exchange member directors, and (iv) five non-industry directors.
The Exchange believes that its proposal is consistent with the requirements of the Act and rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change imposes any burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Exchange has argued that the proposed rule change is consistent with the protection of investors and the public interest because it would permit the Corporation to immediately amend its certificate of incorporation to facilitate the Corporation's IPO, and because the proposed amendments would not impact the ownership or governance of the Exchange.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change would make procedural changes to certain stock loan buy-in and sell-out rules.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
As described below, OCC is proposing three procedural changes to certain rules relating to the Market Loan Program
First, OCC proposes to amend the buy-in and sell-out processes under the Market Loan Program. Under existing Rules, buy-in and sell-out transactions under the Market Loan Program would be executed by the relevant Loan Market using an independent broker. However, Clearing Members participating in the Market Loan Program have requested that the execution of such buy-in or sell-out transactions be left to the discretion of Lending Clearing Member or Borrowing Clearing Member, as applicable. OCC understands that Automated Equity Finance Markets, Inc. (“AQS”), the operator of the Loan Market supported by the Market Loan Program, supports the requested change and believes that allowing participants in the Market Loan Program to manage the buy-in and sell-out processes in the manner that they are accustomed to will foster the development of its marketplace. To accommodate such request, OCC proposes to amend Rule 2209A and Rule 2211A to update the buy-in and sell-out processes described therein and to redefine the respective rights, obligations, and responsibilities of OCC, Clearing Members and the relevant Loan Market in connection therewith.
More specifically, under existing rules where the Borrowing Clearing Member fails to return the specified quantity of loaned stock (or where the Lending Clearing Member fails to pay the settlement price with respect to the specified quantity of loaned stock), the relevant Loan Market will instruct an independent broker to execute a buy-in (or sell-out) of the loaned stock, and OCC will determine in its sole discretion, as between OCC and the clearing members, whether the costs of the transaction are reasonable. Under the proposed rules, as is the more common practice in connection with securities lending, instead of an independent broker the Lending Clearing Member (or the Borrowing Clearing Member) would determine if and when to execute a buy-in (or sell-out) of the loaned stock. Because the Clearing Member would have sole discretion with respect to execution of the buy-in (or sell-out) transaction, such Clearing Member would be required to defend the timeliness of the transaction and the reasonableness of the costs if such matters were challenged. OCC would have no responsibility with respect to the resolution unless OCC had suspended the Clearing Member. In connection with the foregoing proposed changes, OCC and AQS would amend and restate the Agreement for Clearing and Settlement Services between the parties (“AQS Agreement”). A copy of the amended and restated AQS Agreement is attached to the proposed rule change.
Second, OCC proposes to amend the Rules governing the Stock Loan/Hedge Program to add a sell-out process. Currently, Rule 2209, which governs regular termination of stock loans under the Stock Loan/Hedge Program, does not describe a sell-out process. Although a sell-out process is described in Rule 2211, the scope of its application is limited by the context of Rule 2211, which specifically governs the close-out of stock loan positions of suspended Clearing Members. Therefore, OCC proposes to amend Rule 2209 to add a sell-out process that would apply in the context of regular termination of stock loans and to amend Rule 2211 to update the buy-in and sell-out processes described therein and to redefine the respective rights, obligations, and responsibilities of OCC and Clearing Members in connection therewith. Rule 2209 would also be amended to clarify when stock loans are terminated, including codifying a long standing process which has permitted Clearing Members to a stock loan to certify to OCC that they have terminated the stock loan and transferred the settlement price between themselves.
Third, OCC proposes to amend the Rules governing the Stock Loan/Hedge Program to add a cash settlement process. Under the Market Loan Program, if the Lending Clearing Member is unable to complete a buy-in, OCC has the discretion to fix a cash settlement value for the quantity of the loaned stock not returned to the Lending Clearing Member, thereby facilitating the termination of the relevant stock loan [see Rule 2209A(b)(3)]. However, currently OCC does not have the same option available under the Stock Loan/Hedge Program. Therefore, OCC proposes to amend Rule 2209 and Rule 2211, as appropriate, to include a cash settlement process identical to the process available under the Market Loan Program.
Finally, in addition to the procedural changes described above, OCC proposes to amend Rule 2202(b) to clarify that with respect to a stock loan that has been novated by OCC under the Stock Loan/Hedge Program, any terms of the original stock loan (other than terms that establish congruence) and any representations, warranties, and covenants made by the parties to the original stock loan with respect to such loan, to the extent that they do not conflict with OCC's By-Laws and Rules, shall remain in effect as between such parties. This change clarifies that, for example, the agreements of the parties to the original stock loan transaction with respect to dividend and rebate payments (which are not guaranteed by OCC in the Stock Loan/Hedge Program) are not affected by the provisions of OCC's By-Laws and Rules.
The proposed changes to OCC's By-Laws and Rules are consistent with the purposes and requirements of Section 17A of the Act, as amended, because they are designed to promote the prompt and accurate clearance and settlement of stock loans by permitting Clearing Members to manage the buy-in and sell-out processes in the manner that they are accustomed to and by providing OCC with the additional option of closing out stock loans through a cash settlement process, thereby fostering cooperation and coordination with persons engaged in the clearance and settlement of stock loans, and removing impediments to and perfecting the mechanism of a national system for the prompt and
OCC does not believe that the proposed rule change would impose any burden on competition.
Written comments were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Electronic comments may be submitted by using the Commission's Internet comment form (
• Paper comments should be sent in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC, 20549–1090.
All submissions should refer to File Number SR–OCC–2012–04. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 2.11 to (1) add a new subparagraph (a)(6) that addresses the authority of the Exchange and its routing broker-dealer, Direct Edge ECN LLC d/b/a DE Route (“DE Route”) to cancel orders if and when a systems, technical or operational issue (herein, each individually referred to as a “Systems Issue,” and collectively referred to as “Systems Issues”) occurs, and (2) amend subparagraph (a)(4) and add new subparagraph (a)(7) to describe the operation of an error account for DE Route. The text of the proposed rule change is available on the Exchange's Web site, at the Exchange's principal office and in the Public Reference Room of the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 2.11 by adding subparagraph (a)(6) to address the authority of the Exchange and DE Route to cancel orders when a Systems Issue occurs, and by amending subparagraph (a)(4) and adding subparagraph (a)(7) to describe the conditions under which DE Route may maintain and use an error account.
DE Route is the approved outbound router of EDGA,
A Systems Issue may arise at DE Route, a Trading Center or the Exchange that may cause the Exchange or DE Route to take steps to cancel orders if the Exchange or DE Route determines that such action is necessary to maintain a fair and orderly market. The examples set forth below describe some of the circumstances in which the Exchange or DE Route may decide to cancel orders.
If DE Route or a Trading Center experiences a Systems Issue that results in DE Route not receiving responses to immediate or cancel (“IOC”) orders that it sent to the Trading Center, and that issue is not resolved in a timely manner, DE Route may need to cancel the routed orders affected by the issue.
If the Exchange experiences a Systems Issue, the Exchange may take steps to cancel all outstanding orders affected by that issue and notify affected Members of the cancellations. In those cases, the Exchange would seek to cancel, via DE Route, any routed orders related to the Members' initial orders.
An error position can arise out of Systems Issues experienced by DE Route, the Exchange or a Trading Center. Connectivity and order processing related issues are the most common types of Systems Issues that DE Route would expect could result in an error position. Connectivity issues, for example, would entail problems with the manner in which DE Route sends or receives order, execution and cancellation messages to or from other Trading Centers. Connectivity issues could arise either from DE Route's systems or from the Trading Center's systems. For example, if DE Route's connection to a Trading Center is interrupted after delivering an order, DE Route may be unable to receive a timely execution report from the Trading Center, and as a consequence may cancel the Member's order. But DE Route may later discover after the connection was restored that the order was actually executed by the Trading Center, resulting in an error position. Similarly, if the Trading Center attempted to cancel all open orders that it had previously accepted due to a Systems Issue, but either transmitted cancellations on orders that had previously been executed, or subsequently submitted executions of the orders to The Depository Trust Clearing Corporation (“DTCC”) for clearance and settlement, an error position would result.
An error position might also result if DE Route failed to process order messages correctly. For example, if DE Route's connection to the Exchange is temporarily interrupted and DE Route were to erroneously re-route orders that had previously been executed after the connection was restored, DE Route will have received executions of orders where there were effectively no corresponding orders on the Exchange. In this case, the executions would not necessarily be nullified since DE Route is a regular member of other Trading Centers and is therefore subject to those venues' policies for honoring trades.
A Systems Issue experienced by the Exchange could also result in an error position relating to a routed order. For example, if an order were routed from the Exchange to a Trading Center by DE Route, and then due to a Systems Issue the Exchange would not accept the resulting execution of the order (but rather transmitted a cancellation to the Member instead), an error position would result. Another example might be where a Systems Issue experienced by the Exchange automatically changed the number of shares associated with all orders from one or more Members, or all orders in one or more symbols (in either case resulting in overfills), or changed the symbol on one or more orders (resulting in executions in the wrong stocks), where such orders were routed by DE Route to a Trading Center for execution.
Regardless of how an error position arose, DE Route would not typically learn about an error position until the next business day following the trade date, usually (but not exclusively) during the clearing process when a Trading Center has submitted to DTCC a transaction for clearance and settlement of which DE Route had not received an execution confirmation. Nonetheless, if DE Route reasonably determines that it has accurate and sufficient information, and a sufficient amount of time, it will assign the full amount of the resulting error position to one or more Members. For example, if Member A placed an order to buy 100 shares of symbol XYZ, and a Systems
The foregoing assignment methodology is designed to ensure that an error position is assigned to Members in a non-discriminatory manner. Thus, if DE Route reasonably concludes that it is unable to trace each erroneous execution comprising an error position back to one or more Members' orders, then DE Route will assume the entire amount of the error position in the error account. Moreover, if DE Route reasonably concludes, due to the number of erroneous executions and/or the number of Members potentially impacted, that it would not be able to trace each erroneous execution comprising an error position back to such Members in a timely manner (which will be defined to mean by the first business day following the trade date on which the error position was established, or “T+1”), then DE Route will assume the entire amount of the error position in the error account. When an error position is acquired into DE Route's error account, it will then be liquidated as soon as practicable pursuant to proposed paragraph (a)(7) of Rule 2.11.
The Exchange proposes to amend EDGA Rule 2.11 to amend subparagraph (a)(4) and add new subparagraphs (a)(6) and (a)(7) to address the cancellation of orders due to Systems Issues and the use of an error account by DE Route, respectively.
Specifically, under proposed subparagraph (a)(6), the Exchange or DE Route would be expressly authorized to cancel orders as may be necessary to maintain fair and orderly markets if a Systems Issue occurred at the Exchange, DE Route or a Trading Center.
Under amended subparagraph (a)(4) and new subparagraph (a)(7), DE Route would be authorized, when providing routing services to the Exchange, to maintain an error account for the purpose of liquidating an error position acquired as a result of Systems Issues experienced either by DE Route itself, the Exchange or at a Trading Center, as described above. The rule amendments provide that DE Route would only assume an error position in the error account under documented circumstances when the error position could not fairly and practicably be assigned to one or more Members.
With proposed new subparagraph (a)(7) of Rule 2.11, the Exchange is proposing that DE Route would consider the following factors in determining whether the entire amount of an error position can be fairly and practicably assigned to one or more Members: (i) Whether DE Route has accurate and sufficient information to trace each erroneous execution comprising an error position back to one or more Members' orders; and (ii) whether DE Route is able to review available information in order to assign the entire amount of an error position to all affected Members by the first business day following the trade date on which the error position was created (considering, among other factors, the size of the error position and the total number of Members potentially impacted). If as a result of the foregoing, DE Route reasonably concludes that the entire amount of an error position can be assigned to one or more Members in a timely and non-discriminatory manner, the entire amount of the error position will accordingly be assigned to such Members.
There may be scenarios, however, in which the entire amount of a particular error position resulting from a Systems Issue cannot be assigned to Members, or cannot be assigned to Members in a non-discriminatory manner. For example, in the event that there is insufficient and/or inaccurate information, or the routed order that led to an erroneous execution could not be attributed to a Member's order, then DE Route would not be able to trace erroneous executions back to a Member's order. Also, if the information available would enable tracing of some, but not all, of the erroneous executions comprising an error position to Members, then the Exchange believes that assigning only a portion of an error position to Members might unfairly discriminate against those Members. In these circumstances, therefore, DE Route may reasonably conclude, pursuant to the factors set forth in proposed Rule 2.11(a)(7), that it cannot assign the entire amount of an error position to one or more Members, or cannot assign it in a non-discriminatory manner, and must instead acquire the entire amount of the error position into the error account.
There may also be scenarios in which the entire amount of a particular error position resulting from a Systems Issue cannot practicably be assigned to Members in a timely manner. For example, the number of erroneous executions comprising an error position, and/or the number of Members potentially impacted, could be such that the research necessary to trace all of the erroneous executions comprising the error position back to particular Members' orders could reasonably be expected to extend beyond T+1. The Exchange believes that assigning an error position to a Member beyond T+1 significantly increases the potential for disruptions in the normal clearance and settlement process,
DE Route would be required to document the factors considered in determining to assume an error position in the error account. Similarly, if DE Route determined that an error position could be assigned to a particular Member in a timely fashion, then DE Route would be required to document the rationale for the assignment to that Member. The assignment of any error position to any one or more Members would be required to be done in a non-discriminatory fashion; this includes, for example, that the entire amount of an error position must be assigned to all Members to which such position could reasonably be attributed. If time would not permit a full analysis of all Members to which a position could be attributed, then DE Route would not assign any portion of the error position to Members, but would rather have to assume the error position in its error account. Documentation reflecting assignment of an error position to one or more Members shall reflect such methodology.
Proposed subparagraph (a)(7) would further describe the manner in which DE Route would liquidate an error position from the error account. When, as and if DE Route determined to book an error position to its error account, DE Route would be required to liquidate such error position as soon as practicable in a manner that would effectively confer investment discretion over the error position to a third-party broker-dealer. Specifically, DE Route would be required to: (i) Provide complete time and price discretion to the third-party broker-dealer in the liquidation of the error position, including that it would not be permitted to exercise any influence or control over the timing or methods of trading; and (ii) establish and implement written policies and procedures in accordance with paragraph (a)(7) that are reasonably designed to restrict the flow of any confidential and proprietary information associated with the liquidation of an error position between the Exchange and DE Route, on one hand, and the third-party broker-dealer, on the other.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change; or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing with the Commission a proposal to amend Phlx Rule 1079 (FLEX Index, Equity and Currency Options) to extend a pilot program that eliminates minimum value sizes for FLEX index options and FLEX equity options (together known as “FLEX Options”).
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b–4(f)(6)(iii).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this proposed rule change is to amend Phlx Rule 1079 (FLEX Index, Equity and Currency Options) to extend a pilot program that eliminates minimum value sizes for FLEX Options (the “Pilot Program” or “Pilot”).
Rule 1079 deals with the process of listing and trading FLEX equity, index, and currency options on the Exchange. Rule 1079(a)(8)(A) currently sets the minimum opening transaction value size in the case of a FLEX Option in a newly established (opening) series if there is no open interest in the particular series when a Request-for-Quote (“RFQ”) is submitted (except as provided in Commentary .01 to Rule 1079): (i) $10 million underlying equivalent value, respecting FLEX market index options, and $5 million underlying equivalent value respecting FLEX industry index options;
Presently, Commentary .01 to Rule 1079 states that by virtue of the Pilot Program ending March 30, 2012, there shall be no minimum value size requirements for FLEX Options as noted in subsections (a)(8)(A)(i) and (a)(8)(A)(ii) above.
The Exchange now proposes to extend the Pilot Program for a period ending May 31, 2012.
The Exchange believes that there is sufficient investor interest and demand in the Pilot Program to warrant an extension. The Exchange believes that the Pilot Program has provided investors with additional means of managing their risk exposures and carrying out their investment objectives. Extension of the Pilot Program would continue to provide greater opportunities for traders and investors to manage risk through the use of FLEX Options, including investors that may otherwise trade in the unregulated over the counter (“OTC”) market where similar size restrictions do not apply.
In support of the proposed extension of the Pilot Program, the Exchange has under separate cover submitted to the Commission a Pilot Program Report
If, in the future, the Exchange proposes an additional extension of the Pilot Program, or should the Exchange propose to make the Pilot Program permanent, the Exchange will submit, along with any filing proposing such amendments to the Pilot Program, an additional Pilot Program Report covering the period during which the Pilot Program was in effect and including the details referenced in the prior paragraph. The Exchange will also provide the nominal dollar value of each trade. The Pilot Program Report would be submitted to the Commission at least one month prior to the expiration date of the Pilot Program unless the Commission agrees otherwise, and would be provided on a confidential basis.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–PHLX–2012–44 and should be submitted on or before April 27, 2012.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 14, 2012, NYSE Amex LLC (the “Exchange” or “NYSE Amex”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
The Exchange proposed to amend the NYSE Amex Equities definition of “approved person” to exclude foreign affiliates, eliminate the application process for approved persons, and make related technical and conforming changes.
The Exchange proposed to amend the definition of approved person in NYSE Amex Equities Rule 2 to revise the definition of which entities are deemed to be under “common control” with a member organization. The Exchange proposed to amend the definition of approved person so that it would include any person, other than a member, principal executive or employee of a member organization, who controls a member organization, is engaged in a securities or kindred business that is controlled by a member or member organization, or is a U.S. registered broker-dealer under common control with a member organization.
The Exchange proposed several additional amendments to its Rules. The Exchange proposed to amend NYSE Amex Equities Rule 22 to provide that a member of certain NYSE boards and committees may not participate in the consideration of any matter if there are certain types of indebtedness between the board or committee member and a member organization's affiliate or other related parties. The Exchange proposed to amend NYSE Amex Equities Rule 98A, which provides that no issuer, or partner or subsidiary thereof, may become an approved person of a Designated Market Maker (“DMM”) unit that is registered in the stock of that issuer, to provide instead that a DMM unit may not be registered in a stock of an issuer, or a partner or subsidiary thereof, if such entity is either an approved person or an affiliate of the DMM unit's member organization. The Exchange proposed to amend Supplementary Material .30(c) of Rule 402 to provide that when securities are callable in part under the Rule, a member organization may not allocate any called securities to the account of an affiliate until all customer positions have been satisfied.
The Exchange also proposed to amend its rules to remove the requirement that the Exchange affirmatively approve each application to become an approved person, and accordingly, to remove all references to an approval process and the submission of an application for such approval from NYSE Amex Equities Rules 304, 308, and 311. The Exchange also proposed to eliminate use of the Forms AP–1 and AD–G.
The Exchange proposed to amend NYSE Amex Equities Rule 304 to provide specifically that a member organization would be required to identify all of its approved persons to the Exchange and each such approved person would continue to be required to consent to the Exchange's jurisdiction. The Exchange also proposed to make technical and conforming changes to other rules that reference the approved person application process.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Commission finds that the proposed rule change is consistent with Section 6(b)
The Commission has reviewed the record for the proposed rule change and believes that the record does not contain any information to indicate that the proposed rule would have a significant effect on efficiency, competition, or capital formation. In light of the record, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation and has concluded that the proposed rule is unlikely to have any significant effect.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 14, 2012, New York Stock Exchange LLC (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
The Exchange proposed to amend the definition of “approved person” in NYSE Rule 2 to revise the definition of which entities are deemed to be under “common control” with a member organization.
The Exchange proposed several additional amendments to its Rules. The Exchange proposed to amend paragraphs (3) and (4) of NYSE Rule 21 to provide that a member of the Exchange's Board of Directors or an authorized committee who is associated with a member organization cannot participate in the deliberations concerning the listing of a security if the Director knows that an affiliate of the member organization directly or indirectly owns one percent or more of any class of stock of the issuer or has a contract, option, or privilege to purchase the security to be listed. The Exchange proposed to amend NYSE Rule 22 to provide that a member of certain NYSE boards and committees may not participate in the consideration of any matter if there are certain types of indebtedness between the board or committee member and a member organization's affiliate or other related parties. The Exchange proposed to amend NYSE Rule 98A, which provides that no issuer, or partner or subsidiary thereof, may become an approved person of a Designated Market Maker (“DMM”) unit that is registered in the stock of that issuer, to provide instead that a DMM unit may not be registered in a stock of an issuer, or a partner or subsidiary thereof, if such entity is either an approved person or an affiliate of the DMM unit's member organization. The Exchange proposed to amend Supplementary Material .30(c) of Rule 402 to provide that when securities are callable in part under the Rule, a member organization may not allocate any called securities to the account of an affiliate until all customer positions have been satisfied.
The Exchange also proposed to amend its rules to remove the requirement that the Exchange affirmatively approve each application to become an approved person, and accordingly, to remove all references to an approval process and the submission of an application for such approval from NYSE Rules 304, 308, and 311. The Exchange also proposed to eliminate use of the Forms AP–1 and AD–G.
The Exchange proposed to amend NYSE Rule 304 to provide specifically that a member organization would be required to identify all of its approved persons to the Exchange and each such approved person would continue to be required to consent to the Exchange's jurisdiction. The Exchange also proposed to make technical and conforming changes to other rules.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Commission finds that the proposed rule change is consistent with Section 6(b)
The Commission has reviewed the record for the proposed rule change and believes that the record does not contain any information to indicate that the proposed rule would have a significant effect on efficiency, competition, or capital formation. In light of the record, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation and has concluded that the proposed rule is unlikely to have any significant effect.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that Praesidian Capital Opportunity Fund III, LP, 419 Park Avenue South, New York, NY 10016, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730,
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because Praesidian Capital Opportunity Fund III–A, LP, Associate of Praesidian Capital Opportunity Fund III, LP, holds an ownership position in CB Restaurants, Inc. that exceeds 10%. Therefore the transaction is considered as providing financing to an Associate, requiring prior written exemption from the Small Business Administration.
Notice is hereby given that any interested person may submit written comments on the transaction within 15 days of the date of this publication to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
U.S. Small Business Administration.
Notice of open federal advisory committee meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for the next meeting of the Region II Buffalo District Advisory Council. The meeting will be open to the public.
The meeting will be held on April 18, 2012 from approximately 9:30 a.m. to 11:30 a.m. Eastern Standard Time.
The meeting will be held at the Transit Valley Country Club, 8920 Transit Road, East Amherst, New York 14051.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the Region II Buffalo District Advisory Council. The Region II Buffalo District Advisory Council is tasked with providing information of public interest.
The purpose of the meeting is so the council can provide advice and opinions regarding the effectiveness of and need for SBA programs, particularly the local districts which members represent. The agenda will include: district office, SBA programs and services, government contracting, disaster updates, lending activity reports, small business week, event announcements, and roundtable discussion on small business issues.
The meeting is open to the public however advance notice of attendance is requested. Anyone wishing to attend and/or make a presentation to the Region II Buffalo District Advisory Council must contact Franklin J. Sciortino, district director, Buffalo district office by April 13, by fax or email in order to be placed on the agenda. Franklin J. Sciortino, District Director, Buffalo District Office, U.S. Small Business Administration, 540 Niagara Center, 130 S. Elmwood Avenue, Buffalo, New York 14202; telephone (716) 551–4301 or fax (716) 551–4418.
Additionally, if you need accommodations because of a disability or require additional information, please contact Kelly Lotempio, EDS/PIO, Buffalo District Office, U.S. Small Business Administration, 540 Niagara Center, 130 S. Elmwood Avenue, Buffalo, New York 14202; telephone (716) 551–4301,
For more information on SBA, please visit our Web site at
U.S. Small Business Administration.
Notice of open Federal advisory committee meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for the next meeting of the Audit and Financial Management Advisory (AFMAC). The meeting will be open to the public.
The meeting will be held on Wednesday, April 18, 2012 from 1 p.m. to approximately 4 p.m. Eastern Daylight Time.
The meeting will be held at the U.S. Small Business Administration, 409 3rd Street SW., Office of the Chief Financial Officer Conference Room, 6th Floor, Washington, DC 20416.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the AFMAC. The AFMAC is tasked with providing recommendation and advice regarding the Agency's financial management, including the financial reporting process, systems of internal controls, audit process and process for monitoring compliance with relevant laws and regulations. The purpose of the meeting is to discuss the SBA's Financial Reporting, Audit Findings Remediation, Ongoing OIG Audits including the Information Technology Audit, Recovery Act, FMFIA Assurance/A–123 Internal Control Program, Credit Modeling, LMAS Project Status, Performance Management, Acquisition Division Update, Improper Payments and current initiatives.
The meeting is open to the public, however advance notice of attendance is requested. Anyone wishing to attend and/or make a presentation to the AFMAC must contact Jonathan Carver, by fax or email, in order to be placed on the agenda. Jonathan Carver, Chief
ITS Joint Program Office, Research and Innovative Technology Administration, U.S. Department of Transportation.
Notice.
The Intelligent Transportation Systems (ITS) Program Advisory Committee (ITS PAC) will hold a meeting by web conference on May 2, 2012, from 1 p.m. to 2 p.m. (EDT), to welcome new members and to provide the committee an overview of information essential to its functioning.
The ITS PAC, established under Section 5305 of Public Law 109–59, Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, August 10, 2005, and re-chartered on January 23, 2012, was created to advise the Secretary of Transportation on all matters relating to the study, development, and implementation of intelligent transportation systems. Through its sponsor, the ITS Joint Program Office, the ITS PAC makes recommendations to the Secretary regarding ITS Program needs, objectives, plans, approaches, content, and progress.
The following is a summary of the web conference tentative agenda: (1) Welcome by RITA Acting Administrator; (2) Meeting purpose and agenda review; (3) Overview of ITS PAC purpose, roles, and responsibilities; (4) Overview of the ITS Joint Program Office organization, management, and mission; (5) Overview of the ITS Research Program; and (6) Brief ethics review.
Participation in the web conference is open to the public, but limited conference lines will be available on a first-come, first-served basis. Members of the public who wish to participate must notify Mr. Stephen Glasscock, the Committee Designated Federal Official, at (202) 366–9126 not later than April 20, 2012, at which time the web conference URL and teleconference phone number will be provided. Members of the public may present oral statements at the meeting with Mr. Glasscock's approval. Persons wishing to present oral statements or obtain information should contact Mr. Glasscock.
Questions about the agenda or written comments may be submitted by U.S. Mail to: U.S. Department of Transportation, Research and Innovative Technology Administration, ITS Joint Program Office, Attention: Stephen Glasscock, 1200 New Jersey Avenue SE, HOIT, Washington, DC 20590 or faxed to (202) 493–2027. The ITS Joint Program Office requests that written comments be submitted prior to the meeting.
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act and the General Services Administration regulations (41 CFR Part 102–3) covering management of Federal advisory committees.
ITS Joint Program Office, Research and Innovative Technology Administration, U.S. Department of Transportation.
Notice.
The U.S. Department of Transportation (USDOT) Intelligent Transportation System Joint Program Office (ITS JPO) will hold a free public meeting on the Vehicle-to-Infrastructure (V2I) research program on April 18, 2012, 8:30 a.m.–3:30 p.m. at ITS America, 1100 17th Street NW., Suite 1200, Washington DC 20036, 202–484–4847. The meeting will also be available by webinar. Persons planning to attend the workshop or participate in the webinar should register online no later than April 15, 2012 at
This public meeting is being held in support of the V2I for Safety Program for Connected Vehicles Initiative lead by the ITS JPO. The meeting will allow primary stakeholders and subject matter experts to review concepts of how selected safety applications will work that involve infrastructure components. The outcome of this meeting will provide customer based feedback on how these safety applications can be developed to achieve maximum effectiveness while minimizing cost.
The purpose of the V2I program is to enable the development of vehicle based applications and safety systems that will assist drivers in avoiding crashes. As part of this program, FHWA's role is to develop roadside equipment and other enabling technologies that will enable these safety applications to function properly.
If you have any questions or you need any special accommodations, please send an email to Adam Hopps at
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this notice to advise the public that an Environmental Impact Statement (EIS) will be prepared for a proposed freeway corridor improvement project on I–43 in Milwaukee and Ozaukee Counties, Wisconsin.
Bethaney Bacher-Gresock, Environmental Program Manager, FHWA Wisconsin Division Office, City Center West, 525 Junction Road, Suite 8000, Madison, WI 53717; Telephone: (608) 662–2119.
The FHWA, in cooperation with the Wisconsin Department of Transportation (WisDOT), will prepare an Environmental Impact Statement (EIS) for proposed improvements in the I–43 corridor and adjacent interchanges in Milwaukee and Ozaukee Counties,
Public involvement is a critical component of the National Environmental Policy Act (NEPA) project development process and will occur throughout the development of the environmental documents. These documents will be made available for review by federal and state resource agencies and the public. Specific efforts to encourage involvement by, and solicit comments from, minority and low-income populations in the project study area will be made. A series of public information meetings will be held during the project study. Public notice will be given as to the time and place of all workshops and public information meetings. In addition, a public hearing will be held after the completion of the Draft EIS. Inquiries related to the I–43 Corridor project study can be sent to
Projects receiving Federal funds must comply with Title VI of the Civil Rights Act and Executive Order 12898 Federal Actions to Address Environmental Justice in Minority and Low-Income Populations. Federal law prohibits discrimination on the basis of race, color, age, sex, or country of national origin in the implementation of this project. It is also Federal policy to identify and address any disproportionately high and adverse effects of federal projects on the health or environment of minority and low-income populations to the greatest extent practicable and permitted by law.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from four individuals for an exemption from the prohibition against persons with an implantable cardioverter defibrillator (ICD) in the Federal Motor Carrier Safety Regulations (FMCSRs), due to syncope or likelihood of causing any loss of ability to operate a commercial motor vehicle (CMV) safely. FMCSA requests public comments on these applications for an exemption. If granted, the exemption would enable these individuals with ICDs to operate CMVs in interstate commerce.
Comments must be received on or before May 7, 2012.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2011–(0081) using any of the following methods:
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Benisse Lester, M.D., Chief Medical Officer, (202) 366–4001,
Section 4007 of the Transportation Equity Act for the 21st Century (TEA–21) [Pub. L. 105–178, June 9, 1998, 112 Stat. 107, 401] as amended 49 U.S.C. 31315 and 31136(e) provides authority to grant exemptions from many of the Federal Motor Carrier Safety
The Agency reviews the safety analyses and the public comments and determines whether granting the exemption would likely achieve a level of safety equivalent to or greater than the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
FMCSA provides medical advisory criteria for use by medical examiners in determining whether drivers with certain medical conditions, procedures, and/or treatments should be certified to operate commercial motor vehicles in interstate commerce. The advisory criteria indicate that: The term “has no current clinical diagnosis of” (1) a current cardiovascular condition, or (2) a cardiovascular condition which has not fully stabilized regardless of the time limit. The term “known to be accompanied by” is designed to include a clinical diagnosis of a cardiovascular disease (1) which is accompanied by symptoms of syncope, dyspnea, collapse or congestive cardiac failure; and/or (2) which is likely to cause syncope, dyspnea, collapse, or congestive cardiac failure.
It is the intent of the FMCSRs to render unqualified a driver who has a current cardiovascular disease which is accompanied by and/or likely to cause symptoms of syncope, dyspnea, collapse, or congestive cardiac failure. However, the subjective decision of whether the nature and severity of an individual's condition will likely cause symptoms of cardiovascular insufficiency rests with the medical examiner and the motor carrier.
The advisory criteria states that implantable cardioverter defibrillators are disqualifying due to risk of syncope. The emphasis should be on the underlying medical condition(s) which require treatment and the general health of the driver.
In the case of ICDs the underlying condition for which the device was placed may place the driver at risk for syncope or gradual or sudden incapacitation that may be likely to result in loss of ability to safely control a CMV. ICDs also may deploy inappropriately, which would result in loss of ability to safely control a CMV.
Mr. Hively is a 52 year old commercial motor vehicle (CMV) driver who holds a class A commercial drivers license (CDL) from the state of Pennsylvania. Mr. Hively has driven a truck for 36 years. He had an ICD placed due to ventricular tachycardia and a low ejection fraction which improved. The device has deployed several times, most recently due to ventricular tachycardia in October 2011. Mr. Hively would like to continue to drive a truck in interstate commerce, if he is granted an exemption.
Mr. Tadsen is a 72 year old CMV driver who holds a class B and class D CDL from the state of Iowa. Mr. Tadsen had an ICD placed in 2009, with a history that includes cardiomyopathy, low ejection fraction which has improved, and hypertension. He would like to obtain a CDL and drive a CMV in interstate commerce, if granted an exemption.
Mr. Freund is a 59 year old CMV driver who holds a class C and class D CDL from the state of New Jersey. Mr. Freund had an ICD placed due to a congenital heart condition. His driving history has a Driving Under the Influence of Alcohol or Drugs (DUI) in 1988. He would like to obtain a CDL and drive a CMV in interstate commerce, as a courier transporting small packages for distances that are usually less than 100 miles, if granted an exemption.
Mr. Rusk is a 53 year old CMV driver who holds a class A CDL in Illinois. Mr. Rusk had an ICD placed in 2010 as part of a clinical trial for sarcoidosis. He has had no episode of syncope. The ICD has never deployed. His physician states that Mr. Rusk is at the lower risk end of persons with ICDs. Mr. Rusk would like to obtain a CDL and drive a CMV in interstate commerce, if granted an exemption.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. The Agency will consider all comments received before the close of business May 7, 2012. Comments will be available for examination in the docket at the location listed under the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt seventeen individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in
The exemptions are effective April 6, 2012. The exemptions expire on April 6, 2014.
Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On February 22, 2012, FMCSA published a notice of receipt of Federal diabetes exemption applications from seventeen individuals and requested comments from the public (77 FR 10612). The public comment period closed on March 23, 2012, and no comments were received.
FMCSA has evaluated the eligibility of the seventeen applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These seventeen applicants have had ITDM over a range of 1 to 43 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the February 22, 2012,
FMCSA did not receive any comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the seventeen exemption applications, FMCSA exempts, Rick J. Birdsall (NE), Robert E. Bruso (NY), Roy Crabtree (IN), Steven L. Drake (CA), Benjamin J. Duea (MN), Steven E. Greer (MN), Jonathan E. Hunsaker (OR), Michael L. Jones (NC), William D. Larsen (SD), Michael W. Morofsky (CA), Antonio R. Ragin (CT), Lee A. Richardson (NC), Michael R. Simmons (TN), William W. Simmons (FL), Ronald O. Snyder (OH), Douglas J. Wood (NY) and Richard P. Wright (OR) from the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA).
Notice of applications for exemption from the diabetes mellitus requirement; request for comments.
FMCSA announces receipt of applications from 22 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before May 7, 2012.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2012–0044 using any of the following methods:
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Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 22 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by the statutes.
Ms. Aasen, age 50, has had ITDM since 1971. Her endocrinologist examined her in 2012 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Aasen understands diabetes management and monitoring, has stable control of her diabetes using insulin, and is able to drive a Commercial Motor Vehicle (CMV) safely. Ms. Aasen meets the vision requirements of 49 CFR 391.41(b)(10). Her optometrist examined her in 2011 and certified that she does not have diabetic retinopathy. She holds a Class D operator's license from North Dakota.
Mr. Altomer, 52, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Altomer understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Altomer meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A Commercial Driver's License (CDL) from New York.
Mr. Beaty, 36, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting
Mr. Brown, 42, has had ITDM since 2012. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Brown understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Brown meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Michigan.
Mr. Brown, 46, has had ITDM since 1986. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Brown understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Brown meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class C operator's license from California.
Mr. Conley, 21, has had ITDM since 2002. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Conley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Conley meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Wisconsin.
Mr. Ellis, 58, has had ITDM since 2008. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ellis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ellis meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Glenn, 63, has had ITDM since 1991. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Glenn understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Glenn meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class C operator's license from California.
Mr. Hansen, 55, has had ITDM since 2011. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hansen understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hansen meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Heitschmidt, 41, has had ITDM since 2008. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Heitschmidt understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Heitschmidt meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Kennedy, 57, has had ITDM since 2009. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Kennedy understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kennedy meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from North Carolina.
Mr. Ludolph, 21, has had ITDM since 2006. His endocrinologist examined him in 2012 and certified that he has had no
Mr. Marlow, 50, has had ITDM since 2010. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Marlow understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Marlow meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Martinson, 65, has had ITDM since 2011. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Martinson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Martinson meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from North Dakota.
Mr. Price, 52, has had ITDM since 2003. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Price understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Price meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Mississippi.
Mr. Saxton, 49, has had ITDM since 2009. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Saxton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Saxton meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Missouri.
Mr. Schipkowski, 61, has had ITDM since 2011. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Schipkowski understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Schipkowski meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Illinois.
Mr. Stone, 71, has had ITDM since 2001. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Stone understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Stone meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Florida.
Mr. Taylor, 37, has had ITDM since 1986. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Taylor understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Taylor meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Thomas, 54, has had ITDM since 2012. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Thomas understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Thomas meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Toews, 71, has had ITDM since 2011. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Toews understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Toews meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Oregon.
Mr. Waller, 41, has had ITDM since 2011. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Waller understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Waller meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Georgia.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 USC. 31136(e).
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 13 individuals for exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. If granted, the exemptions would enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce without meeting the Federal vision requirement.
Comments must be received on or before May 7, 2012.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2012–0039 using any of the following methods:
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Elaine M. Papp, Chief, Medical
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period. The 13 individuals listed in this notice have each requested such an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.
Mr. Castanon, age 46, has complete loss of vision in his right due to a traumatic injury sustained at age 9. The visual acuity in his left eye is 20/20. Following an examination in 2011, his optometrist noted, “I feel that Mr. Castanon is able to drive a commercial vehicle without glasses safely.” Mr. Castanon reported that he has driven straight trucks for 6 years, accumulating 2,304 miles. He holds a Class D operator's license from New Mexico. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a Commercial Motor Vehicle (CMV).
Mr. Erke, 70, has had amblyopia in his right eye since childhood. The best corrected visual acuity in his right eye is 20/200, and in his left eye, 20/20. Following an examination in 2011, his optometrist noted, “It is my medical opinion that Mr. Erke has sufficient vision to perform any and all driving tasks required to operate a commercial vehicle.” Mr. Erke reported that he has driven straight trucks for 17 years, accumulating 1.5 million miles and tractor-trailer combinations for 25 years, accumulating 2.3 million miles. He holds a Class A CDL from Michigan. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Flanery, 44, has had amblyopia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20, and in his left eye, 20/100. Following an examination in 2011, his ophthalmologist noted, “Based upon my findings and medical expertise, I Daniel Ewen, MD hereby certify Ronald Flanery to be visually able to safely operate a commercial motor vehicle.” Mr. Flanery reported that he has driven straight trucks for 15 years, accumulating 465,000 miles and tractor-trailer combinations for 5 years, accumulating 1,250 miles. He holds a Class A CDL from Kentucky. His driving record for the last 3 years shows one crash, for which he was not cited and no convictions for moving violations in a CMV.
Mr. Kleinheider, 48, has a detached retina in his left due to a traumatic injury sustained in 1989. The best corrected visual acuity in his right eye is 20/20. Following an examination in 2011, his ophthalmologist noted, “It is my medical opinion that Mark has sufficient vision to perform the driving tasks required to operate a commercial motor vehicle.” Mr. Kleinheider reported that he has driven straight trucks for 3 years, accumulating 60,000 miles and tractor-trailer combinations for 3 years, accumulating 15,000 miles. He holds a Class A CDL from Missouri. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Powell, 57, has complete loss of vision in his right due to a traumatic injury sustained 10 years ago. The visual acuity in his left eye is 20/20. Following an examination in 2011, his optometrist noted, “I certify that, in my medical opinion, Mr. Powell has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Powell reported that he has driven straight trucks for 15 years, accumulating 150,000 miles and tractor-trailer combinations for 35 years, accumulating 1.12 million miles. He holds a Class A CDL from Virginia. His driving record for the last 3 years shows no crashes but one conviction for speeding in a CMV; he exceeded the speed limit by 12 mph.
Mr. Schachle, 40, has a prosthetic right eye due to a traumatic injury sustained at 8 months old. The best corrected visual acuity in his left eye is 20/20. Mr. Schachle reported that he has driven straight trucks for 4 years, accumulating 120,000 miles. He holds a Class A CDL from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a Commercial Motor Vehicle (CMV).
Mr. See, 55, has complete loss of vision in his right due to a traumatic injury sustained at age 3. The best corrected visual acuity in his left eye is 20/15. Following an examination in 2011, his optometrist noted, “I believe you have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. See reported that he has driven straight trucks for 30 years, accumulating 1.2 million miles. He holds a Class B CDL from New York. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Settlemyre, 59, has had esotropia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20, and in his left eye, 20/60. Following an examination in 2011, his optometrist noted, “In my medical opinion, I feel James Settlemyre has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Settlemyre reported that he has driven straight trucks for 8 years, accumulating 1 million miles. He holds a chauffeur's license from Indiana. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Simone, 61, has had keratoconus in his left eye for 30 years. The best corrected visual acuity in his right eye is 20/40, and in his left eye 20/400. Following an examination in 2011, his optometrist noted, “I feel Steve is sufficient to perform the driving tasks required to operate a commercial vehicle.” Mr. Simone reported that he has driven straight trucks for 42 years, accumulating 3.4 million miles. He holds a Class C operator's license from Kansas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Sobczyk, 25, has had amblyopia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20, and in his left eye, 20/200.
Mr. Sparkman, 62, has complete loss of vision in his right due to a traumatic injury sustained as a child. The best corrected visual acuity in his left eye is 20/20. Following an examination in 2011, his ophthalmologist noted, “Based on the above information, I believe the patient has sufficient vision to perform the driving tasks required by his current commercial vehicle.” Mr. Sparkman reported that he has driven straight trucks for 10 years, accumulating 520,000 miles. He holds a Class A CDL from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Wheaton, 30, has a detached retina in his left due to a traumatic injury sustained in 1997. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2011, his optometrist noted, “I feel that Joshua has more than adequate vision to perform any driving tasks required to operate a commercial vehicle.” Mr. Wheaton reported that he has driven straight trucks for 5 years, accumulating 225,000 miles. He holds a Class C operator's license from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Wright, 47, has had amblyopia in his right eye since birth. The best corrected visual acuity in his right eye is 20/400, and in his left eye, 20/20. Following an examination in 2011, his optometrist noted, “This meets the vision requirement to perform the driving tasks required to operate a commercial vehicle.” Mr. Wright reported that he has driven straight trucks for 3
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. The Agency will consider all comments received before the close of business May 7, 2012. Comments will be available for examination in the docket at the location listed under the
In addition to late comments, FMCSA will also continue to file, in the public docket, relevant information that becomes available after the comment closing date. Interested persons should monitor the public docket for new material.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice: Request for Nominations from the Motor Carrier Industry to the Board of Directors.
FMCSA solicits nominations and applications for appointment to the Board of Directors of the Unified Carrier Registration Plan (UCR Plan) of interested persons to serve as representatives of the motor carrier industry. The Agency will appoint five members from the motor carrier industry. The UCR Plan is responsible for the administration of the UCR Agreement. The UCR Agreement governs the registration and the collection and distribution of fees paid by for-hire and private motor carriers, brokers, freight forwarders, and leasing companies. The UCR Plan and Agreement replaced the Single State Registration System (SSRS), which was repealed as of January 1, 2008.
Nominations or expressions of interest for appointment to the Board of Directors must be received on or before May 7, 2012.
You may submit comments to this notice, identified by docket number FMCSA–2012–0087, by any of the following methods—Internet, facsimile, regular mail, or hand-delivery.
Mr. Jose M. Rodriguez, Office of Research and Information Technology, (202) 366–3517, FMCSA, Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590 or by email at:
Section 4305(b) of the Safe, Accountable, Flexible, Efficient
The establishment of the Board was announced in the
Each of the five current directors from the motor carrier industry serves a term of 3 years that will expire on May 31, 2012. These directors may continue to serve until their replacements are appointed; each of them may be reappointed (49 U.S.C. 14504a(d)(1)(D)(iii) and (iv)). Today's publication serves as a notice requesting nominations for and public comment on possible appointment of the five members of the motor carrier industry in accordance with 49 U.S.C. 14504a(d).
FMCSA seeks either nominations of, or expressions of interest from, individuals to serve as members of the board of directors for the UCR Plan from the motor carrier industry. Nominations or expressions of interest should indicate that the person nominated or recommended meets the statutory requirements specified in 49 U.S.C. 14504a(d)(1)(B)(iii). Nominations or expressions of interest must be transmitted by means of the procedures for comments specified earlier in this notice. FMCSA and the Department will make the appointments for the five members from the motor carrier industry for three-year terms, expiring on May 31, 2015. FMCSA and the Department will consider the objectives specified in the statute for the UCR Plan and Agreement when making the appointments.
Manning Grain Company (MGC), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from Fillmore Western Railway Company (FWRC) and operate a 7.1-mile rail line between its point of connection with BNSF Railway Company at milepost 8.1 at or near Fairmont and terminus at milepost 15.2 at or near Burress, in Fillmore County, Neb. (the Line).
The Line is part of an approximately 23.2-mile rail line (the Fairmont-Milligan line) that FWRC was authorized to abandon in
The effective date of the exemption will be April 20, 2012 (30 days after the verified notice was filed).
MGC certifies that its projected annual revenues as a result of this transaction will not exceed $5 million and will not exceed those that would qualify it as a Class III rail carrier.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35612, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on Thomas F. McFarland, Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1890, Chicago, IL 60604–1112.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before May 7, 2012 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden, to the (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by calling (202) 927–5331, email at
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). The IRS is soliciting comments concerning collection requirements related to travel expenses of state legislators.
Written comments should be received on or before June 5, 2012 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Joel Goldberger, (202) 927–9368 at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). The IRS is soliciting comments concerning information collection requirements related to guidance for qualification as an acceptance agent, and execution of an agreement between an acceptance agent and the Internal Revenue Service relating to the issuance of certain taxpayer identifying numbers.
Written comments should be received on or before June 5, 2012 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form(s) and instructions should be directed to Joel Goldberger, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, (202) 927–9368 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). The IRS is soliciting comments concerning collection requirements related to application of section 338 to insurance companies.
Written comments should be received on or before June 5, 2012 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Joel Goldberger, (202) 927–9368, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
This document contains final regulations under section 197 of the
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). The IRS is soliciting comments concerning information collection requirements related to Guidance Under Section 1502; Suspension of Losses on Certain Stock Disposition.
Written comments should be received on or before June 5, 2012 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulations should be directed to Joel Goldberger, at (202) 927–9368, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any Internal Revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 -21), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before May 7, 2012.
Submit written comments on the collection of information through
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 -21), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before May 7, 2012.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7479, FAX (202) 632–7583 or email: denise.mclamb@va.gov. Please refer to “OMB Control No. 2900–0731.”
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 5, 2012.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461–9769 or FAX (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Office of Acquisition and Logistics, Department of Veterans Affairs.
Notice.
The Office of Acquisition and Logistics (OAL), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 5, 2012.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS)
Arita Tillman at (202) 775–4194 or FAX to 202–495–5390.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, (OAL) invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of (OAL's) functions, including whether the information will have practical utility; (2) the accuracy of (OAL's) estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 5, 2012.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461–9769 or FAX (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 5, 2012.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461–9769 or Fax (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the
Written comments and recommendations on the proposed collection of information should be received on or before June 5, 2012.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461–9769 or Fax (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Office of Operations, Security, and Preparedness, Department of Veterans Affairs.
Notice.
The Office of Operations, Security, and Preparedness (OSP), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 5, 2012.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
John Hancock at (202) 461–5489 or FAX (202) 495–5326.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, OSP invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of OSP's functions, including whether the information will have practical utility; (2) the accuracy of OSP's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 5, 2012.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 461–9769 or FAX (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 5, 2012.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461–9769 or FAX (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
a. VA Form 21–22—27,083 hours.
b. VA Form 21–22a—533 hours.
a. VA Form 21–22—325,000.
b. VA Form 251–22a—6,400.
By direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
EPA is partially approving and partially disapproving a revision to the North Dakota State Implementation Plan (SIP) addressing regional haze submitted by the Governor of North Dakota on March 3, 2010, along with SIP Supplement No. 1 submitted on July 27, 2010, and part of SIP Amendment No. 1 submitted on July 28, 2011. These SIP revisions were submitted to address the requirements of the Clean Air Act (CAA or Act) and our rules that require states to prevent any future and remedy any existing man-made impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). EPA is promulgating a Federal Implementation Plan (FIP) to address the gaps in the plan resulting from our partial disapproval of North Dakota's Regional Haze (RH) SIP.
In addition, EPA is disapproving a revision to the North Dakota SIP addressing the interstate transport of pollutants that the Governor submitted on April 6, 2009. We are disapproving it because it does not meet the Act's requirements concerning non-interference with programs to protect visibility in other states. To address this deficiency, we are promulgating a FIP.
This final rule is effective May 7, 2012.
EPA has established a docket for this action under Docket ID No. EPA–R08–OAR–2010–0406. All documents in the docket are listed on the
Gail Fallon, Air Program, Mailcode 8P–AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202–1129, (303) 312–6281, or
For the purpose of this document, we are giving meaning to certain words or initials as follows:
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The CAA requires each state to develop plans, referred to as SIPs, to meet various air quality requirements. A state must submit its SIPs and SIP revisions to us for approval. Once approved, a SIP is enforceable by EPA and citizens under the CAA, also known as being federally enforceable. If a state fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or unapprovable, then we must promulgate a FIP to fill this regulatory gap. CAA section 110(c)(1).
This action involves two separate requirements under the CAA and EPA's regulations. One is the requirement that states have SIPs that address regional haze, the other is the requirement that states have SIPs that address the interstate transport of pollutants that may interfere with programs to protect visibility in other states.
In 1990, Congress added section 169B to the CAA to address regional haze issues, and we promulgated regulations addressing regional haze in 1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in our visibility protection regulations at 40 CFR 51.300–309. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. States were required to submit a SIP addressing regional haze visibility impairment no later than December 17, 2007. 40 CFR 51.308(b).
Few states submitted a regional haze SIP prior to the December 17, 2007 deadline, and on January 15, 2009, EPA found that 37 states, including North Dakota, and the District of Columbia and the Virgin Islands, had failed to submit SIPs addressing the regional haze requirements. 74 FR 2392. Once EPA has found that a state has failed to make a required submission, EPA is required to promulgate a FIP within two years unless the state submits a SIP and the Agency approves it within the two year period. CAA section 110(c)(1).
North Dakota initially submitted a SIP addressing regional haze on March 3, 2010. On July 27, 2010, North Dakota submitted a revision to that submittal, entitled “SIP Supplement No. 1.” On July 28, 2011, North Dakota submitted another revision, entitled “SIP Amendment No. 1.”
Section 110(a)(1) of the CAA requires states to submit SIPs to address new or revised National Ambient Air Quality Standards (NAAQS) within 3 years after promulgation of such standards, or within such shorter period as we may prescribe. On July 18, 1997, we promulgated the 1997 8-hour ozone NAAQS and the 1997 fine particulate (PM
Section 110(a)(2)(D)(i) contains four distinct requirements or “prongs” related to the impacts of interstate transport. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant deterioration of air quality in other states; or (4) interfere with efforts to protect visibility in other states.
On April 25, 2005, we published a “Finding of Failure to Submit SIPs for Interstate Transport for the 8-hour Ozone and PM
On April 6, 2009, we received a SIP revision from North Dakota to address the interstate transport provisions of CAA 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 PM
In two separate lawsuits, one in U.S. District Court for the Northern District of California and one in the U.S. District Court for the District of Colorado, environmental groups sued us for our failure to timely take action with respect to the interstate transport requirements and the regional haze requirements of the CAA and our regulations. In particular, the lawsuits alleged that we
As a result of these lawsuits, we entered into two separate consent decrees in these two jurisdictions. The consent decree in the Northern District of California, as modified on several occasions, required that we sign a notice of proposed rulemaking for prong four of the interstate transport requirements for North Dakota by September 1, 2011. As lodged with the court, but before it was entered, the proposed consent decree in the District of Colorado required that we sign a notice of proposed rulemaking for regional haze requirements for North Dakota by July 21, 2011. Because the latter consent decree was not entered by the court until September 27, 2011, and we signed our notice of proposed rulemaking on September 1, 2011, the July 21, 2011 deadline was mooted.
Both consent decrees, as modified, require that we sign a notice of final rulemaking addressing the regional haze requirements and prong four of the interstate transport requirements by March 2, 2012. We are meeting that requirement with the signing of this notice of final rulemaking.
We signed our notice of proposed rulemaking on September 1, 2011, and it was published in the
In our proposal, we proposed to take the following actions:
We proposed to disapprove the following parts of North Dakota's RH SIP:
a. North Dakota's nitrogen oxides (NO
b. North Dakota's determination under the reasonable progress requirements found at section 40 CFR 51.308(d)(1) that no additional NO
c. North Dakota's reasonable progress goals (RPGs).
d. Portions of North Dakota's long-term strategy (LTS) that relied on or reflected other aspects of the RH SIP that we were proposing to disapprove.
We proposed to approve the remaining aspects of North Dakota's RH SIP revision that was submitted on March 3, 2010 and SIP Supplement No. 1 that was submitted on July 27, 2010. We proposed to approve the following parts of SIP Amendment No. 1 that the State submitted on July 28, 2011:
a. Amendments to Section 10.6.1.2 pertaining to Coyote Station.
b. Amendments to Appendix A.4, the Permit to Construct for Coyote Station.
We proposed to not act on the remainder of the State's July 28, 2011 submittal.
We proposed to promulgate a FIP to address the deficiencies in the North Dakota RH SIP that we identified in our proposal. The proposed FIP included the following elements:
a. NO
b. NO
c. A reasonable progress determination and NO
d. A five-year deadline to meet the emission limits and monitoring, recordkeeping, and reporting requirements for the above seven units to ensure compliance.
e. RPGs consistent with the SIP limits proposed for approval and proposed FIP limits.
f. LTS elements that would reflect the other aspects of the proposed FIP.
We also proposed approval of a SIP revision in lieu of our regional haze FIP if the State submitted a revision in a timely way that matched the terms of our proposed FIP.
We proposed to disapprove the portion of North Dakota's April 6, 2009, SIP revision for interstate transport in which North Dakota intended to address the requirement of section 110(a)(2)(D)(i)(II) that emissions from North Dakota sources not interfere with measures required in the SIP of any other state under part C of the CAA to protect visibility.
Because of this proposed disapproval, we proposed a FIP to meet the visibility protection requirement of section 110(a)(2)(D)(i)(II). To meet this FIP duty, we proposed to find that North Dakota sources would be sufficiently controlled to eliminate interference with the visibility programs of other states by a combination of the measures that we were proposing to approve as meeting the regional haze SIP requirements combined with the additional measures that we were proposing to impose in a FIP to meet the remaining regional haze SIP requirements.
We noted that acting on both the section 110(a)(2)(D)(i)(II) requirement and the regional haze SIP requirement simultaneously would ensure the most efficient use of resources by the affected sources and EPA.
We requested comments on all aspects of our proposed action and provided a two-month comment period, with the comment period closing on November 21, 2011. We also provided a public hearing. Initially, we scheduled the hearing to last four hours on one day. 76 FR 58570. At the request of the Governor of North Dakota, we expanded the time for the public hearing to 14 hours over two days and changed the venue. 76 FR 60777 (September 30, 2011). The public hearing was held in Bismarck, North Dakota on October 13 and 14, 2011.
We received a significant number of comments on our proposed rule, both from commenters, particularly citizens and environmental groups, that supported our proposed action, and from commenters, primarily from state and city agencies, rural power cooperatives, and industrial facilities and groups, that were critical of our proposed action.
In this action, we are responding to the comments we have received, taking final rulemaking action, and explaining the bases for our action, including any changes from our proposed action.
With this final action we are partially approving and partially disapproving North Dakota's RH SIP revision that was submitted on March 3, 2010, SIP Supplement No. 1 that was submitted on July 27, 2010, and part of SIP Amendment No. 1 that was submitted on July 28, 2011. Specifically we are disapproving:
• North Dakota's NO
• North Dakota's determination under the reasonable progress requirements found at 40 CFR 51.308(d)(1) that no additional NO
• North Dakota's RPGs.
• Portions of North Dakota's LTS that rely on or reflect other aspects of the RH SIP that we are disapproving.
We are approving the remaining aspects of North Dakota's RH SIP revision that was submitted on March 3, 2010 and SIP Supplement No. 1 that was submitted on July 27, 2010. We are approving the following parts of SIP Amendment No. 1 that the State submitted on July 28, 2011: (1) Amendments to Section 10.6.1.2 pertaining to Coyote Station, and (2) amendments to Appendix A.4, the Permit to Construct for Coyote Station. We are not taking action on the remainder of the July 28, 2011 submittal at this time.
We are finalizing a FIP to address the deficiencies in the North Dakota RH SIP that result from our partial disapproval of the SIP.
The final FIP includes the following elements:
• NO
• A reasonable progress determination and NO
• Monitoring, record-keeping, and reporting requirements for the above four units to ensure compliance with these emission limitations.
• RPGs consistent with the SIP limits approved and the final FIP limits.
• LTS elements that reflect the other aspects of the finalized FIP.
We are disapproving a portion of a SIP revision that North Dakota submitted for the purpose of addressing the “good neighbor” provisions of CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 PM
As noted, we proposed to disapprove North Dakota's NO
On July 27, 2006, the U.S. District Court for the District of North Dakota entered a consent decree between EPA, the State, and Minnkota Power Cooperative (“Minnkota”). The consent decree resulted from an enforcement action that EPA and the State brought against Minnkota for alleged violations of Prevention of Significant Deterioration (PSD) permitting requirements at MRYS 1 and 2. The consent decree called for North Dakota to make a best available control technology (BACT) determination for NO
In November 2010, North Dakota determined BACT for NO
EPA disagreed with North Dakota's findings and the selection of selective non-catalytic reduction (SNCR) as BACT and initiated the dispute resolution process under the consent decree. Under the consent decree, the court was tasked with upholding North Dakota's BACT determination unless the disputing party was able to demonstrate that North Dakota's decision was unreasonable. We have included a copy of the consent decree and the court's order in the docket for this action.
On December 21, 2011, following briefing by the parties, and consideration of North Dakota's record for its BACT determination, the court determined that EPA had not demonstrated that North Dakota's findings were unreasonable. The court decided that North Dakota, based on the administrative record for its BACT determination, had a reasonable basis for concluding that SCR is not technically feasible for treating North Dakota lignite at MRYS. The court upheld North Dakota's determination that SNCR is BACT.
There are two critical principles expressed in our BART guidelines that are relevant here. First, as part of a BART analysis, technically infeasible control options are eliminated from further review. For BART, EPA's criteria for determining whether a control option is technically infeasible are substantially the same as the criteria used for determining technical infeasibility in the BACT context. 70 FR 39165; EPA's “New Source Review Workshop Manual,” pages B.17–B.22. Second, the BART guidelines indicate that states generally may rely on a BACT determination for a source for purposes of determining BART for that source, unless new technologies have become available or best control levels for recent retrofits have become more stringent. 70 FR 39164. As a general rule, the selection of a recent BACT level as BART is the equivalent of selecting the most stringent level of control, and consideration of the five statutory BART factors becomes unnecessary.
Over our vigorous challenge of the information and analysis relied upon by North Dakota, the U.S. District Court upheld North Dakota's recent BACT determination based on the same
We note, however, that the State has indicated a willingness to pursue the conduct of a pilot study at MRYS and/or LOS to analyze the expected replacement rate of SCR catalyst exposed to flue gas from the combustion of North Dakota lignite at these cyclone units in a low-dust or tail-end configuration. It is our expectation that the results of such a study could be used to inform further evaluation of SCR as a potential control technology when the State evaluates reasonable progress in the next planning period for regional haze. This position is supported by the State's December 20, 2011 letter from North Dakota Department of Health (NDDH), L. David Glatt, to EPA, Janet McCabe.
We proposed a NO
This limit represents a control efficiency of 48% based on the average annual baseline emission rate of 0.22 lb/MMBtu (2003–2004) provided in the State's BART determination. This value is slightly lower than the 49% control efficiency we assumed in our proposal, a value that was based on the State's analysis. Beginning in 2010, CCS 2 voluntarily started employing LNC3, the more stringent level of combustion controls that the State evaluated in its BART determination. Annual average Clean Air Markets data for this unit reflects a NO
Great River Energy (GRE), the owner of CCS, asserted in comments that SNCR will only achieve a 20% reduction beyond LNC3. We find that 25% is a conservative and reasonable estimate. We considered several sources of information in arriving at this value. First, the Control Cost Manual states that in typical field applications, SNCR provides a 30% to 50% NO
To arrive at a final BART emission limit, we adjusted the projected annual average of 0.115 lb/MMBtu upward by 10% and then rounded to the nearest hundredth to arrive at 0.13 lb/MMBtu. In our experience, a 5 to 15% upward adjustment is appropriate when converting an annual average emission rate to a limit that will apply on a 30-day rolling average to account for the fact that shorter averaging periods result in higher variability in emissions due to load variation, startup, shutdown, and other factors.
We decided to allow the averaging across Units 1 and 2 in response to comments we received. The BART Guidelines state, “You should consider allowing sources to `'average” emissions across any set of BART-eligible emission units within a fenceline, so long as the emission reductions from each pollutant being controlled for BART would be equal to those reductions that would be obtained by simply controlling each of the BART-eligible units that constitute the BART-eligible source.” 40 CFR part 51, appendix Y, section V. This principle applies here.
Because we are now approving North Dakota's NO
Similarly, because we are now approving North Dakota's NO
We have fully considered all significant comments on our proposal, and, except as noted in section III, above, have concluded that no other changes from our proposal are warranted. Our action is based on an evaluation of North Dakota's SIP submittals and our FIP against the regional haze requirements at 40 CFR 51.300–51.309 and CAA sections 169A and 169B, and against the interstate transport requirements concerning visibility at CAA section 110(a)(2)(D)(i)(II). All general SIP requirements contained in CAA section 110, other provisions of the CAA, and our regulations applicable to this action were also evaluated. The purpose of this action is to ensure compliance with these requirements. Our authority for action on North Dakota's SIP submittals is based on CAA section 110(k). Our authority to promulgate our partial FIP is based on CAA section 110(c).
We are approving most of North Dakota's RH SIP provisions because they meet the relevant regional haze requirements. Most of the adverse comments we received concerning our proposed partial approval of the RH SIP pertained to North Dakota's BART and reasonable progress determinations.
With respect to the BART determinations that we proposed to approve, we understand that there is room for disagreement about certain aspects of the State's analyses. Furthermore, we may have reached different conclusions had we been performing the determinations in the first instance. However, the comments have not convinced us that the State, conducting specific case-by-case analyses for the relevant units, acted unreasonably or that we should be disapproving the State's BART determinations that we proposed to approve.
With respect to North Dakota's reasonable progress determinations that we proposed to approve, we continue to disagree with the manner in which North Dakota evaluated visibility improvement when it evaluated single source controls and have disregarded this evaluation in our consideration of the reasonableness of North Dakota's reasonable progress control determinations. We also disagree with some of North Dakota's legal conclusions about the necessity of reasonable progress controls for certain sources—specifically, for Coyote Station for NO
As noted, we are disapproving North Dakota's NO
For AVS 1 and 2, consistent with our proposal, we are disapproving the State's determination under our reasonable progress requirements (40 CFR 51.308(d)(1)) that no additional NO
Consistent with our proposal, we are approving the remaining elements of North Dakota's RH SIP because such elements meet the relevant requirements of our regional haze regulations.
The basis for this part of our action remains unchanged from our proposal. Nothing in the comments has convinced us that a change from our proposal is warranted. North Dakota's April 6, 2009 transport submittal contained only a cursory reference to CAA section 110(a)(2)(D)(i)(II)'s requirement for a SIP revision that contains adequate provisions “prohibiting any source or other type of emission activity within the State from emitting any air pollutant in amounts which will * * * interfere with measures required to be included in the applicable implementation plan for any other State under part C [of the CAA] to protect visibility.” Because of the impacts on visibility from the interstate transport of pollutants, we
As required by section 110(c), we are promulgating a FIP to satisfy the requirements of CAA section 110(a)(2)(D)(i)(II) concerning visibility protection. As explained in section II, the FIP relies on the combination of the North Dakota RH SIP provisions that we are approving and the additions to the regional haze program for North Dakota that we are promulgating in our FIP for NO
For further details regarding our rationale, please refer to our proposal and our response to comments.
As noted in section III of this action, in a major change from our proposal, we are now approving North Dakota's NO
We received numerous comments that were specific to the NO
The State's NO
We are disapproving the State's determination that no NO
In the absence of approvable NO
We also are required by the terms of two separate consent decrees, one in the U.S. District Court for the District of Colorado and one in the U.S. District Court for the Northern District of California to ensure that North Dakota's CAA requirements for regional haze and for 110(a)(2)(D)(i)(II), respectively, are finalized by March 2, 2012. Because we have found that the State's SIP submissions do not adequately satisfy either requirement in full and because we have previously found that North Dakota failed to timely submit these SIP submissions, we have not only the authority, but a duty to promulgate a FIP that meets those requirements.
Our action in large part approves the RH SIP submitted by North Dakota. The disapproval of the NO
Our regulations define best available retrofit technology to mean “an emission limitation based on the degree of reduction achievable through the application of the
In addition, North Dakota's own regulations, which have been submitted for our approval and which we are approving with this action, provide as follows:
“33–15–25–03 Guidelines for best available retrofit technology determinations under the Regional Haze Rule.
Title 40, Code of Federal Regulations, part 51, appendix y, as published in the
North Dakota appears to disavow the dictates of its own regulation:
“EGUs with a capacity of less than 750 MW * * * are free to deviate from the BART Guidelines in the preparation of their BART analyses.
MRYS * * *
Given that North Dakota's own regulation, which we are making federally enforceable with this action, requires the use of the BART guidelines as guidance for BART analyses, we think it reasonable to conclude that any deviation from the guidelines must be based on a reasonable justification.
Regardless, the BART guidelines are mandatory for CCS, which is the one source for which we are disapproving the State's BART determination.
While these levels may represent current control capabilities, we expect that scrubber technology will continue to improve and control costs continue to decline. You should be sure to consider the level of control that is currently best achievable at the time that you are conducting your BART analysis.
The commenter focuses on narrow passages of the BART guidelines to support its view that the presumptive limits represent the most stringent BART controls that EPA can require for regional haze. However, these passages must be reconciled with the language of the RHR cited above, as well as other passages of the BART guidelines and associated preamble. A central concept expressed in the guidelines is that a
While North Dakota conducted a five-factor analysis to determine BART at CCS, its determination was based on erroneous values for the costs associated with potential loss of fly ash sales due to ammonia contamination, something the source acknowledged in June of 2011. 76 FR 58603. A BART determination based on substantially erroneous cost values does not meet the requirements of the CAA or our regulations to determine the best system of continuous emission control technology considering cost and the other statutory factors. Because we cannot approve the State's BART determination, we are authorized, and in this case obligated, to promulgate a FIP.
In promulgating a FIP for CCS, we arrived at an emission limit that is more stringent than the presumptive limit based on consideration of the five factors. Contrary to the commenter's suggestion, EPA's BART guidelines do not establish a presumptive cost effectiveness level that is a “safe harbor” or “shield” for state BART determinations, or that EPA, when promulgating a FIP, may not exceed in determining BART. Once a FIP is required, we stand in the state's shoes. In considering the cost factor, it is reasonable for us to consider other sources of information to inform our decision, including the cost values other states have considered reasonable. This is not EPA establishing a new presumptive limit or national rule; it is EPA, acting in the state's shoes, conducting a reasonable source-specific consideration of cost and the other regulatory factors. In addition, although not required, we considered cost effectiveness values that the State of North Dakota had considered to be reasonable in reaching its BART determinations. See 76 FR 58623 (“It is also within the range of values that North Dakota considered reasonable in its NO
We disagree with the argument that we must approve a BART determination where the SIP reflects consideration of the five factors and the BART selection will result in some improvement in visibility. We think Congress expected more when it required the application of “best available retrofit technology.”
While the commenter places great emphasis on EPA's prior statements in reports to Congress, these statements have no regulatory effect. Also, these statements are not as supportive of commenter's position as commenter suggests. For example, “some flexibility” does not suggest unfettered flexibility; a report's suggestion that a cooperative approach would make sense does not suggest that EPA will or must approve unilateral decision-making by a state no matter what.
Contrary to the commenter's assertion, we have not destroyed the State's primacy. In fact, we have approved the vast majority of the State's determinations. We are only rejecting the State's unreasonable analyses and decisions. We are authorized to do so.
Second, the CAA requires states to submit SIPs that contain such measures as may be necessary to make reasonable progress toward achieving natural visibility conditions, including BART. The CAA accordingly requires the states to submit a regional haze SIP that includes BART as one necessary measure for achieving natural visibility conditions. In view of the statutory language, it is hardly a novel idea that the reasonableness of the state's BART analysis and determination would be evaluated in light of the purpose of the regional haze program. In addition, our regional haze regulations, at 40 CFR 51.308(d)(ii), provide that when a state has established a RPG that provides for a slower rate of improvement in visibility than the URP (as has North Dakota), the state must demonstrate, based on the reasonable progress factors—
Our prior response largely addresses this assertion. However, in addition, we think the illogic of the commenter's claim is revealed when the potential consequences of the commenter's views are examined. The necessary product of the commenter's view is that a state could rely on irrational values for any of the five factors, and EPA would be powerless to disapprove the SIP. We reject that view. We are not establishing new criteria for approval of a regional haze SIP. We are applying the criteria and requirements already specified in the CAA and our regulations. Cost is one of the factors a state must consider in determining BART. If North Dakota has relied on greatly inflated cost estimates in its consideration of the cost factor, it has not considered cost in any meaningful sense of the word.
It is also our opinion that the commenter, in its effort to put our action in a specific legal box—
Instead, while States are assigned the primary statutory and regulatory authority to determine BART, and have significant freedom to determine the weight and significance of the statutory factors, they have an overriding obligation to come to a reasoned determination. They may not act unreasonably or in an arbitrary and capricious fashion, and Congress has assigned EPA, as the reviewing agency, the role of determining whether a State's BART determination or reasonable progress determination is reasonable.
The commenter's citations to legislative history are unconvincing. Among other things, they are incomplete. The commenter ignores the intent behind the 1977 legislation:
“The Administrator must promulgate regulations which assure attainment of the national goal * * * Specifically, the regulations must require that States which contain mandatory class I areas, and States
Commenters suggest that visibility issues are only of state and local concern and that is why Congress left states with sole control. This is inconsistent with the very first sentence of the statute: “Congress hereby declares as a
“There are certain national lands, including national parks, national monuments, national recreation areas, national primitive areas, and national wilderness areas, in which protection of clean air quality is obviously a critical national concern * * * Indeed, the millions of Americans who travel thousands of miles each year to visit Yosemite or the Grand Canyon or the North Cascades will find little enjoyment if, for example, upon reaching the Grand Canyon it is difficult if not impossible to see across the great chasm. If that were to come to pass—and several of our great national parks, including the Grand Canyon, are threatened today by such a fate—the very values which these unique areas were established to protect would be irreparably diminished, perhaps destroyed.”
Thus, we do not agree that Congress assigned us a merely ministerial role; it is not evident how such a limited role would assure attainment of the national goal or the actual imposition of the best available retrofit technology where a state's BART determination is unreasonable, arbitrary and capricious, or not in accordance with the law.
We also disagree that our proposal is inconsistent with the
Contrary to the commenter's assertion, the
GRE acknowledged in a June 2011 email that it had made errors in its original cost estimates for NO
Because of the magnitude of these acknowledged errors, it is appropriate to disapprove the BART determination for CCS 1 and 2 that is contained in the March 3, 2010 submittal. We explain in response to a prior comment why selection of the presumptive limits without a valid case-specific analysis supporting such limits as BART is not sufficient to meet the requirements of the regional haze regulations. Based on our disapproval of the SIP, and on separate grounds related to our January 2009 finding of failure to submit, we are authorized and obligated to promulgate a FIP for NO
Basin Electric misrepresents our proposed action. While we indicated that the State had not explicitly indicated that it was submitting the RH SIP to meet the interstate transport requirements, which left us in an uncertain position, that was not the only basis for our conclusion that the RH SIP did not meet the transport requirements. Instead, we stated, “Most importantly, however, EPA must review the April 6, 2009 submission in light of the current facts and circumstances, and the RH SIP revision that the State ultimately submitted does not fully meet the substantive requirements of the regional haze program * * * To the extent that the State intended to meet the requirement of section 110(a)(2)(D)(i)(II) with the RH SIP, the RH SIP submission itself is not fully approvable.” 76 FR 58642.
The State and Basin Electric assert that we should approve the RH SIP as satisfying the transport requirements even though we are disapproving the SIP as meeting regional haze requirements. We disagree. Under the suggested approach, EPA would simultaneously codify in the Code of Federal Regulations disparate and conflicting requirements—the SIP limits
We also note that North Dakota made this same argument to the U.S. District Court for the District of Colorado—in a motion opposing entry of a consent decree containing deadlines for EPA to promulgate a FIP for regional haze for North Dakota and in comments on the proposed consent decree. The court rejected North Dakota's argument. First, the court noted that we had proposed action on North Dakota's SIP in our September 1, 2011 proposal and we were, therefore, not proposing to take final action on the regional haze FIP before making a determination on North Dakota's SIP revision. Second, the court indicated that we would be authorized to promulgate the regional haze FIP even without taking final action on North Dakota's SIP. As we had argued, the court found that the duty to promulgate a FIP (triggered by our 2009 finding of failure to submit an RH SIP) remains “
The second point we note is that the source owners are essentially questioning modeling that they conducted and submitted to the State as part of their BART evaluations, and that the State specifically called for and included in the SIP. The State established procedures for single-source BART modeling used to support its SIP in the “Protocol for BART-Related Visibility Impairment Modeling Analyses in North Dakota” (the BART modeling protocol). North Dakota RH SIP, Appendix A.1. North Dakota intended for the protocol to apply to “visibility modeling for both identification of sources `subject to BART' (
As the State's single-source BART modeling followed established guidance and was developed in consultation with FLMs and EPA, we find that it provides a reasonable basis for making control technology determinations. We do not agree with the sources' attempt to deviate from the established protocol for assessing visibility impacts. This is because it would lead to a less consistent and rational assessment of potential control options. Nonetheless, we have considered the revised single-source modeling and the comments submitted by the commenters in making our final action. We conclude that nothing contained in their modeling analysis undermines the single-source modeling that North Dakota included in the SIP.
In its BART modeling protocol, North Dakota stated that “the context of the 98th percentile 24-hour delta-deciview prediction is with respect to days of the year, and is not receptor specific.” RH SIP, Appendix A.1, Section 4.0, p. 50. In addition, in establishing the 98th percentile as a reasonable contribution threshold in the BART Guidelines, EPA intended that the day-specific, or “day-by-day,” approach be used. 70 FR 39121. This was the approach EPA considered appropriate to account for the assumptions and uncertainties in CALPUFF; the receptor-specific approach goes beyond what EPA considers appropriate to address these assumptions and uncertainties and would undermine the goal of achieving natural visibility conditions. Therefore, we do not consider the revised CALPUFF modeling results based on the flawed receptor-specific approach that were submitted by the commenters to be useful in assessing visibility impacts..
“Using existing conditions as the baseline for single source visibility impact determinations would create the following paradox: the dirtier the existing air, the less likely it would be that any control is required. This is true because of the nonlinear nature of visibility impairment. In other words, as a Class I area becomes more polluted, any individual source's contribution to changes in impairment becomes geometrically less. Therefore the more polluted the Class I area would become, the less control would seem to be needed from an individual source. We agree that this kind of calculation would essentially raise the “cause or contribute” applicability threshold to a level that would never allow enough emission control to significantly improve visibility. Such a reading would render the visibility provisions meaningless, as EPA and the States would be prevented from assuring “reasonable progress” and fulfilling the statutorily-defined goals of the visibility program. Conversely, measuring improvement against clean conditions would ensure reasonable progress toward those clean conditions.”
From the information that the commenters provided, EPA determined that the differences in the new CALPUFF version 5.8 modeling results are due in part to a change in the natural background visibility that was used in the modeling analysis. The State's modeling protocol called for use of the 20% best natural visibility days in its BART analysis while the commenters' new CALPUFF version 5.8 analysis used the annual average natural visibility days. If the commenters had adopted the same approach as North Dakota and compared CALPUFF version 5.8 visibility impacts to the 20% best natural visibility days, the results of the new analysis would have been more similar to the original modeling performed by North Dakota.
We do not find that the commenters' new modeling demonstrates that single-source modeling performed according to North Dakota's BART modeling protocol should be disregarded. That modeling was conducted using the latest version of CALPUFF that was available at the time, and we are approving the great majority of North Dakota's BART determinations that relied on results from that modeling. In our FIP, in which we are merely filling gaps in the SIP, we are not required to conduct new modeling using CALPUFF version 5.8 or disregard the results of the modeling conducted using CALPUFF version 5.711a. In fact, we find the better course is to rely on modeling based on the same version of the model that the State employed to ensure we are using a consistent comparison. See,
For the evaluation of visibility impacts for BART sources, EPA recommended the use of the natural visibility baseline for the 20% best days for comparison to the “cause or contribute” applicability thresholds. This estimated baseline is reasonably conservative and consistent with the goal of attaining natural visibility conditions. While EPA recognizes that there are natural sources of haze, the use of the 20% worst natural visibility days is inappropriate for the “cause or contribute” applicability thresholds. For example, if BART source visibility impacts were evaluated in comparison to days with very poor natural visibility resulting from nearby wild fires or dust storms, the BART source impacts would be significantly reduced relative to these poor natural visibility conditions and would not be protective of natural visibility on the best 20% days.
The commenter and the cited report on natural visibility by Robert Paine appear to suggest that EPA requires the use of the best 20% visibility days for all aspects of visibility analysis. This does not accurately characterize EPA's recommended use of the 20% worst natural visibility days for URP calculations and the 20% best natural visibility days for the “cause or contribute” applicability thresholds. For example, natural visibility conditions at the Badlands National Park for the best 20%, annual average, and worst 20% natural visibility days are 2.9, 5.0, and 8.1 deciviews, respectively.
The commenter cited modeling studies that purportedly show that the model-predicted natural haze levels are substantially larger than the natural haze levels used by EPA. In fact, the results of those studies compare well with EPA's natural background levels. The modeling study by Tonnesen
While the BART Guidelines do allow states to consider the “frequency, duration, and intensity” of a source's visibility impact when making control determinations, the use of the 90th percentile would over-compensate for any uncertainties in CALPUFF and would underestimate visibility benefits from potential control options and unduly bias the resulting analysis. When the 90th percentile is used to assess predicted visibility improvement from a potential control option, the 37th or 38th highest predicted improvement value from 365 predicted daily values is selected; higher predicted improvement values on 36 or 37 days a year are ignored. This is not rational. In the actual BART determination, a state could so dilute the predicted visibility improvement, one of the very goals of CAA section 169A, as to nullify its initial determination using the 98th percentile that the source is subject to BART. Accordingly, the BART guidelines specifically mention the use of the 98th percentile as an option to compare pre- and post-control modeling runs; use of the 90th percentile is not mentioned. 70 FR 39170. Moreover, the FLMs have affirmed the use of the 98th percentile in their most recent guidance for evaluating visibility impacts at Class I areas. FLAG 2010, p. 23.
With regard to the ammonia background sensitivity study conducted by CDPHE,
As a factual matter, the commenter's assertions are misleading. A review of the Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring data on the WRAP Technical Support System
Also, the commenter's reference to 40 CFR 51.301's definition of “adverse impact on visibility” is misplaced. This term is defined for purposes of 40 CFR 51.307 only and is not used in 40 CFR 51.308. Section 51.307 applies to new source review only, not to the regional haze program.
IMPROVE monitoring data shows that nitrates (from all sources) are among the highest contributors to visibility impairment at TRNP and LWA on the worst 20% visibility days. The contribution to visibility impairment from nitrate at TRNP from 2000–2004 ranged between 13.8% and 24.1%, with nitrate contributing more than any other pollutant in 2001 and 2002. Similarly, the contribution to visibility impairment from nitrate at LWA from 2000–2004 ranged between 19.2% and 31.5%, with nitrate contributing more than any other pollutant in 2004.
In order to help states identify the origins of haze-forming pollutants, such as nitrates, the WRAP conducted source apportionment analyses that identify the contribution from source regions and types to specific Class I areas. These source apportionment methods included CAMx Particle Source Apportionment Technology (PSAT) and the Weighted Emissions Potential (WEP). Both of these analysis tools can be found on the WRAP Technical Support System.
PSAT is a tracer analysis approach that utilizes a mass-tracking algorithm in the CAMx air quality model to explicitly track the chemical transformations, transport, and removal of haze-forming pollutants associated with a particular source region, source type, or combination of the two. The WRAP PSAT results demonstrate that in 2002, North Dakota point sources were the third and fifth largest contributors to nitrate on the worst 20% visibility days at TRNP and LWA, respectively (see charts and tables contained in docket).
The WEP analysis relies on an integration of gridded emissions data, back trajectory residence time data, a one-over-distance factor to approximate deposition, and a normalization of the final results. This method does not produce highly accurate results because, unlike the CAMx air quality model and associated PSAT analysis, it does not account for chemistry and removal processes. Nonetheless, it is more informative than the simpler back trajectory analysis submitted by the commenter because WEP incorporates gridded emissions in addition to back trajectory. The WRAP WEP results show that the grid cells in which the North Dakota BART sources are located have among the highest potential to contribute to nitrate on the worst 20% visibility days at TRNP and LWA (see graphics contained in docket).
Based on the WRAP source apportionment analyses, we find that there is ample evidence to conclude that further controlling NO
However, even if we were required to consider the commenter's new modeling results, they would not cause us to change our opinion about our disapproval of the State's determination
[T]he State must demonstrate, based on the factors in paragraph (d)(1)(i)(A) of this section, that the rate of progress for the implementation plan to attain natural conditions by 2064 is not reasonable; and that the progress goal adopted by the State is reasonable.
The factors in paragraph (d)(1)(i)(A) are “the costs of compliance,” “the time necessary for compliance,” “the energy and non-air quality environmental impacts of compliance,” and “the remaining useful life of any potentially affected sources.” “Visibility improvement” is not one of the factors listed. EPA is required to determine “whether the State's goal for visibility improvement provides for reasonable progress towards natural visibility conditions.” 40 CFR 51.308(d)(1)(iii). In doing so, we must “evaluate the demonstrations developed by the State” pursuant to (d)(1)(ii). There is accordingly no explicit requirement for the State to take into account visibility impacts in determining what measures are reasonable. For regional haze, which is caused by emissions from numerous sources located over a wide geographic area, this makes sense. Controls on one specific source may have little measurable impact on visibility, but controls on multiple similar sources would likely have an impact on improving visibility. We note that states are unlikely to reach the national goal without, at some point, focusing on emissions from a range of sources. In these first regional haze SIPs, however, states have focused on those individual sources with the largest potential impacts on visibility.
When a state considers the visibility improvement associated with controlling just one source or a small handful of sources in attempting to demonstrate that its progress goal is reasonable, it is not appropriate for the state to model visibility improvement on a source-by-source basis in a way that is inconsistent with the CAA. As discussed above, given the nature of visibility impairment, a single source's impact on visibility under current, degraded visibility conditions is much less than when compared against a clean background. North Dakota's approach using current degraded background would almost always result in the conclusion that reducing emissions will have little or no impact on visibility.
North Dakota used cumulative modeling, which assumed current degraded background to evaluate and reject single-source control options for reasonable progress for every reasonable progress source in North Dakota. Such an approach to single-source modeling is inconsistent with the CAA. As we explained in the TSD for our proposal, we had previously considered and rejected the use of current degraded background in promulgating the BART Guidelines.
In establishing the goal of natural conditions, Congress made BART applicable to sources which `may be reasonably anticipated to cause or contribute to any impairment of visibility at any Class I area.' Using existing conditions as the baseline for single source visibility impact determinations would create the following paradox: the dirtier the existing air, the less likely it would be that any control is required. This is true because of the nonlinear nature of visibility impairment. In other words, as a Class I area becomes more polluted, any individual source's contribution to changes in impairment becomes geometrically less. Therefore the more polluted the Class I area would become, the less control would seem to be needed from an individual source. We agree that this kind of calculation would essentially raise the `cause or contribute' applicability threshold to a level that would never allow enough emission control to significantly improve visibility. Such a reading would render the visibility provisions meaningless, as EPA and the States would be prevented from assuring `reasonable progress' and fulfilling the statutorily-defined goals of the visibility program. Conversely, measuring improvement against clean conditions would ensure reasonable progress toward those clean conditions.
In other words, it is our interpretation that North Dakota, if it wished to consider visibility improvement in single-source modeling of potential control options, could only reasonably do so by modeling those controls against natural background conditions. Thus, we reject the commenter's assertion. As we stated in our proposal, the statutory and regulatory goal is reasonable progress toward natural visibility conditions, not to preserve degraded conditions. 76 FR 58629. The State's and commenter's approach resulted in the rejection of very effective and inexpensive controls, and that approach could be used to preclude adoption of controls indefinitely. For the reasons expressed here and in our proposal, that is not reasonable.
Within the context of reasonable progress, the
For BART sources other than power plants larger than 750 MW, North Dakota has specified in its SIP that the BART guidelines must be used as guidance. Furthermore, any analysis of the costs of compliance must be reasonable, and the starting point is an accurate estimate of the costs of potential control options. From there, we must have some means to assess the reasonableness of the costs, and cost effectiveness in $/ton is a widely used and understood metric.
The Control Cost Manual contains two types of information: (1) A generic costing methodology, known as the overnight method and (2) study level capital cost estimates for certain general types of pollution control equipment, such as SCR. The overnight method has been used for decades for regulatory control technology cost analyses.
The cost estimates supplied by North Dakota were frequently based on cost estimating methods that deviate from the overnight method that is used for regulatory purposes. As described above, these costs are not suitable for the purpose of determining whether the costs of BART controls are reasonable relative to costs incurred at other facilities.
“Furthermore, this Manual does not directly address the controls needed to control air pollution at electrical generating units (EGUs) because of the differences in accounting for utility sources. Electrical utilities generally employ the EPRI Technical Assistance Guidance (TAG) as the basis for their cost estimation processes.”
The commenter also provides footnote 1 to this quote which reads as follows:
“This does not mean that this Manual is an inappropriate resource for utilities. In fact, many power plant permit applications use the Manual to develop their costs. However, comparisons between utilities and across the industry generally employ a process called “levelized costing” that is different from the methodology used here. (
The utility industry uses a method known as “levelized costing” to conduct its internal comparisons.
Estimates prepared using the utility industry's levelized costing are not comparable to estimates prepared using the Control Cost Manual. Estimates using the utility industry's levelized method are generally higher than EPA cost effectiveness estimates since the utility industry's levelized method estimates are stated in future dollars and include costs not included in the EPA method, such as inflation and interest during construction. That is why the BART guidelines specify the use of the Control Cost Manual where possible and why it is reasonable for us to insist that the Control Cost Manual method be used to estimate costs. This is the method that has been used to determine the reasonableness of cost effectiveness values in regulatory settings for many, many years; it ensures the use of a common, well-understood metric. Without a like-to-like comparison, it is impossible to draw rational conclusions about the reasonableness of the costs of compliance for particular control options.
The Control Cost Manual approach equalizes all future O&M costs into equal annual payments in constant dollars over the life of the system, translated to year zero using the Equivalent Uniform Annual Cash Flow method or EUAC. See also NSR Manual, p. b.4. The dispute arises over the inclusion of inflation. The Control Cost Manual “recommends making cost comparisons on a current real dollar basis” * * *.” “The constant dollar approach described in the Control Cost Manual annualizes (in constant dollars) the cost of installation, maintenance, and operation of a pollution control system * * *” “The estimator can levelize annual O&M costs over the life of the project, consistent with the manual's constant dollar approach * * *” The commenter asserts that the NSR Manual directs the use of levelized cost in the PSD context, but we note this source also clarifies that the interest rate used to annualize the cost “does not consider inflation.” NSR Manual, p. b.11.
Nonetheless, we have evaluated GRE's new analysis. For reasons we explain below, we have serious concerns about the validity and accuracy of GRE's new analysis and we find it is reasonable for us to continue to rely on cost estimates based on EPA's Control Cost Manual, as described in our proposal. See 76 FR 58620. Every facility has unique elements; however, we do not agree that the elements at CCS are so unique that use of the Control Cost Manual is inappropriate. Also, we note that DryFining
The URS report that GRE references to support its claim of reduced control efficiency values provides a plot in which NO
We proposed a NO
This limit represents a control efficiency of 47.8% based on the average annual baseline emission rate of 0.22 lb/MMBtu (2003–2004) provided in the State's BART determination. This value is slightly lower than the 49% control efficiency we assumed in our proposal, a value that was based on the State's analysis. Beginning in 2010, CCS 2 voluntarily started employing LNC3, the more stringent level of combustion controls that the State evaluated in its
GRE asserted in comments that SNCR will only achieve a 20% reduction beyond LNC3. We find that 25% is a conservative and reasonable estimate. We considered several sources of information in arriving at this value. First, the Control Cost Manual states that in typical field applications, SNCR provides a 30% to 50% NO
To arrive at a final BART emission limit, we adjusted the projected annual average of 0.115 lb/MMBtu upward by 10% and then rounded to the nearest hundredth to arrive at 0.13 lb/MMBtu. In our experience, a 5 to 15% upward adjustment is appropriate when converting an annual average emission rate to a limit that will apply on a 30-day rolling average to account for the fact that shorter averaging periods result in higher variability in emissions due to load variation, startup, shutdown, and other factors.
As discussed in another response above, we do not agree with GRE that it is appropriate to lower the baseline emission rate based on GRE's voluntary installation of combustion controls on Unit 2 in 2010, well after the State established the historic baseline of 2003–2004 for BART planning. Use of such lower baseline rate would inappropriately skew the 5-factor BART analysis by reducing the emissions reductions from combinations of control options and increasing the cost effectiveness values.
In the proposed FIP, EPA included costs of $2,023,000 for “additional ash disposal” and $2,023,000 for “lost ash sales” (76 FR 58621). EPA arrived at these values based on information that GRE itself supplied in July 2011. Based on an analysis performed by a consultant, GRE now asserts that the information GRE supplied in June and July 2011, regarding the sales price for fly ash and the costs for fly ash disposal, was not accurate. GRE supplied this information initially in June 2011 when it discovered that the information that it supplied to the State regarding these values in 2007 was inaccurate.
As part of our consideration of GRE's comments, and comments submitted by others disputing the notion that SNCR use would affect fly ash sales, we have investigated and analyzed this issue further. As part of our effort, we have contracted with EC/R, an engineering consulting firm, which in turn engaged Dr. James Staudt of Andover Technology Partners (ATP), who has expertise regarding the issue of ammonia in fly ash.
Dr. Staudt recently presented a paper at the AWMA, EPA, EPRI, DOE Combined Power Plant Air Pollution Control “Mega” Symposium, August 30–September 2, 2010, Baltimore, Maryland, which reviewed the performance benefits in terms of ammonia slip, reagent consumption, and fly ash ammonia that is possible through optimization of SNCR operation using the information from continuous and real-time monitoring of ammonia slip.
One type of continuous ammonia slip analyzer works on the principle of tunable diode laser spectroscopy and provides continuous, real-time indications of ammonia slip in the duct. This type of analyzer facilitates optimum operation of the SNCR system and minimizes ammonia slip.
For these reasons, we conclude that charges for lost fly ash sales should not be applied to the SNCR system cost analysis and that SNCR can be successfully deployed at the CCS plant at a cost effectiveness level well below the estimate in our proposal of $2,500/ton of NO
Commenter's assertion that 5 ppm is the minimum that can be achieved with SNCR is not consistent with experience with recently installed, state-of-the-art, SNCR systems. As noted above, recently installed SNCR systems are capable of ammonia slip levels in the range of 2 ppm, and experience at the CP Crane Station in Baltimore, Maryland demonstrates that ammonia slip can be maintained below 2 ppm while also ensuring that high ammonia slip excursions during load changes and other transients are avoided.
In some cases the testimonials
“I would point out that with the storage dome at Coal Creek, the ammonia levels that could accumulate would be extremely hazardous. A little know (sic) fact is that ammonia is an explosive gas at certain levels when it accumulates with air present”.
On the other hand, according to the North Dakota State University,
“Anhydrous ammonia is generally not considered to be a flammable hazardous product because its temperature of ignition is greater than 1,560 degrees F and the ammonia/air mixture must be 16 percent to 25 percent ammonia vapor for ignition.”
Although, in principle, ammonia can be combustible under special conditions, these are conditions that are highly unlikely to result from ammonia in fly ash—even if fly ash ammonia concentrations were to reach several hundred ppm. In fact, to our knowledge, there has never been a fire or explosion resulting from ammonia in fly ash.
In summary, GRE's comments and testimonials generally overstate the real concerns regarding ammonia that may result in the fly ash of a plant equipped with SNCR.
Another aspect of ammonia slip and impact on fly ash marketability is that the alkalinity of the fly ash will impact how much ammonia becomes attracted to the fly ash. Fly ash from bituminous coals, with more sulfur trioxide, will tend to attract more ammonia than fly ash with a high alkalinity, such as fly ash from North Dakota lignite. As a result, ammonia deposition on fly ash at CCS is likely to be less of an issue than it would be on a bituminous coal unit, such as Eastlake, and higher ammonia slip levels may be tolerable before fly ash marketability is affected.
Our review of EPA Title IV data for 2010 found that there are three tangentially fired coal-fired boilers that burn lignite coal and control emissions to under 0.14 lb/MMBtu with SNCR. These include Big Brown 1 and Monticello 1 and 2. According to the Fly Ash Resource Center, both the Big Brown Plant and the Monticello Plant market their fly ash through Boral Materials.
This is further evidence that GRE's assumption, that the CCS plant would be unable to market its fly ash, is unjustified. Also, as indicated above, if it were necessary to employ ammonia mitigation to the fly ash, we think at least one of the available systems could be employed at CCS.
Second, if we were to consider such impacts, there is considerable uncertainty in the estimate GRE provided, which attempts to conduct a complex economic assessment based on FOB price alone. For example, the estimate does not consider the offsetting economic impact of replacement materials, such as alternative concrete admixtures, which would be used by concrete manufacturers as an alternative to CCS's ash.
Even if the results were correct, as noted elsewhere in our response to comments, the RHR is clear that perceptibility of visibility improvement is not a test for the suitability of BART controls. Also, as noted elsewhere in our response to comments, we have not used the dollar-per-deciview metric and find that it is reasonable to evaluate control options on the basis of the cost effectiveness in dollar-per-ton removed in conjunction with the modeled visibility improvement.
Concerning our consideration of visibility improvement in the CCS BART determination, the BART Guidelines (40 CFR part 51, appendix Y) state that deciview improvements must be weighted among the five factors and the Guidelines provide flexibility in determining the weight and significance to be assigned to each factor. Thus, achieving a visibility improvement greater than the perceptible level of 0.5 deciviews is not a prerequisite for selecting a particular control option as BART at CCS.
Furthermore, the RHR states that BART determinations are based on circumstances such as the distance of the source from a Class I area, the type and amount of pollutant at issue, and the availability and cost of controls (70 FR 39116). Thus, sources that are closer to Class I areas and emit the types of pollutants that contribute to regional haze are more likely to be subject to BART requirements, regardless of their percent contribution to the statewide NO
Furthermore, as stated in our previous responses, ammonia slip, due to the incomplete reaction of the NO
In our proposal, we asked for comments on a possible alternative NO
As to the presumptive limits, the BART Guidelines state that utility boilers should be required to meet the presumptive NO
Our analysis focuses on what is achievable using SNCR at CCS, based on the Control Cost Manual, vendor information (Fuel-Tech), the State's analysis, GRE's analysis, and our own analysis and expertise.
Analysis of emissions data found significant discrepancies in Figures 2.2 and 2.3 of GRE's November 2011 Refined Analysis. A review of EPA Title IV data for 2010 showed 94 coal-fired boilers that do not have SCR achieve annual emissions levels below 0.17 lb/MMBtu, with the median slightly under 0.14 lb/MMBtu (see Figure 1 below). Of these, ten of them are using SNCR in combination with combustion controls to achieve under 0.17 lb/MMBtu. See docket for a list of these facilities. Of these ten, three are supercritical tangentially-fired boilers that use lignite coal with emissions below 0.14 lb/MMBtu. These include Big Brown 1 and Monticello 1 and 2, as discussed earlier in our responses. In addition, the NEEDS Database v.4.10 for the Final Transport Rule in the CSAPR docket includes two tangentially-fired coal/steam units from North Carolina with LNC3 and SNCR that had emission rates of 0.159 lb/MMBtu and 0.164 lb/MMBtu.
As we explain elsewhere, we have decided to revise the BART limit from 0.12 lb/MMBtu to 0.13 lb/MMBtu on a 30-day rolling average.
As noted in prior responses, we no longer agree that the use of SNCR at CCS would lead to a loss of fly ash sales. Accordingly, EPA has revised its cost analysis on a per unit basis and has determined that SNCR could be installed and operated at CCS for $1,313/ton. This value assumes no costs for lost fly ash sales and no additional fly ash disposal costs. This cost includes combustion control costs and the combined control efficiencies for SNCR and combustion controls. Our research indicates that the cost of up-front ammonia slip control systems would likely be included in the control package from current SNCR suppliers where the need to control ammonia slip is identified, so we have not included a separate cost for such a control system in our revised cost estimate; evidence indicates that if there were any incremental cost associated with such a control system, it would not significantly affect the overall cost effectiveness of the controls.
We note that GRE claimed in its refined analysis that data on supercritical units does not provide an indication of SNCR performance at CCS because CCS does not have supercritical units. Supercritical units typically operate at higher furnace temperatures than subcritical units. The higher furnace temperature makes NO
While location of tanks, routing of process piping and other engineering or construction activities are important aspects of a project, they do not determine the process performance. Critical aspects of SNCR process design, which determine performance (NO
Thus, while URS has the expertise to provide useful input on the cost associated with installing some of the associated equipment, it is not in the business of providing SNCR process designs and performance guarantees—and it apparently did not do this on any of the projects on its experience list.
GRE argues that the CCS units are unique and thus require evaluation by an SNCR process supplier in lieu of an analysis based on the Control Cost Manual. However, GRE has not provided any information from companies that actually design SNCR systems and have experience providing performance guarantees, such as Fuel Tech or another company that is an experienced SNCR supplier. Thus, GRE's claims about SNCR performance are not supported.
The control efficiency of SNCR is the main issue raised by URS because it has a significant impact on the overall cost effectiveness of SNCR, as further explained later in our responses. URS also provides a cost estimate which is used to support GRE's own cost analysis. While GRE comments that “only a site specific evaluation, by a competent SNCR supplier (URS), should be used to estimate emission reductions and associated costs,” the evaluation provided by URS is based on data from other plants. URS extrapolates the SNCR control efficiency using CCS data from a plot of control efficiency versus inlet NO
Since GRE has not provided any information from companies that actually design SNCR systems and have experience providing performance guarantees, GRE's claims, that its prior representations about SNCR performance should be disregarded, are not supported.
Examination of Title IV data shows several lignite fired boilers with significantly lower emissions than at CCS—some using only combustion controls and some using combustion controls in combination with SNCR.
The application of SNCR on low-BTU fuel utility boilers goes back to the late 1980's when it was successfully applied to German brown coal boilers.
It should be noted that the November study actually estimates lower capital and annual costs of control, each of which would independently lower the cost effectiveness value. The total capital investment for SNCR estimated in the July study was $12.72 million, compared to $12.18 million and $11.80 million for Units 1 and 2, respectively, in the November study. The annualized capital plus operating costs in the July study were estimated at $8.91million, compared to $8.79 million and $8.12 million for Units 1 and 2 in the November study. One of the main reasons that costs are higher in the July study is maintenance costs; the annual maintenance costs in the July study are $1,907,375 compared to approximately $180,000 for each Unit in the November study.
The baseline emission rate is another factor which would result in higher cost effectiveness values in the November study. The baseline emission rate in the July study was estimated at 0.22 lb/MMBtu, compared to 0.20 lb/MMBtu and 0.153 lb/MMBtu for Units 1 and 2 in the November study. A lower emission rate would result in less emissions controlled and a higher cost effectiveness value.
The lower SNCR control efficiency in the November study results in less NO
We do not agree with the capital and operating costs estimated by GRE. First, URS has inappropriately applied a retrofit factor when calculating capital costs for the SNCR system. The Control Cost Manual states:
The costing algorithms in this report are based on retrofit applications of SNCR to existing coal-fired, dry bottom, wall-fired and tangential, balanced draft boilers. There is little difference between the cost of SNCR retrofit of an existing boiler and SNCR installation on a new boiler.
Therefore, retrofit costs are inherent in the costs provided by the Control Cost Manual method and there is no need to introduce a retrofit factor. In using a retrofit factor of 1.6, URS overestimated capital costs by 60%.
Another concern we have is that URS's estimate of reagent usage is high. The following is an examination of the 0.20 lb/MMBtu inlet level with 25% reduction case in URS's Table 4.
This is roughly half of what URS calculated as the urea usage. In all of the cases URS estimated, the result is high. Since URS appears to have overestimated the reagent cost, it is likely that URS overestimated the water cost as well.
In this case, with urea at $500/ton delivered, the reagent portion of cost would be:
The tons removed per hour would equal:
The reagent portion of cost is 192/0.148 = $1,300/ton of NO
This $/ton for reagent would be the same assuming the same cost per ton of urea and the same chemical utilization (25%, or 25% reduction at an NSR = 1.0).
The errors in the URS estimate are carried through to GRE's estimates.
We disagree, however, that it is appropriate to analyze and reject potential control measures at specific sources based on modeling using current degraded background conditions. Distinct from the requirement to show that the overall RPGs provide for improvement on the most impaired days, it was incumbent on North Dakota to show that the URP is not a reasonable goal for this planning period and that its RPGs and rejection of reasonable progress controls was reasonable. Just because a state has met the requirement to show improvement on the most impaired days does not mean it has met this separate requirement. Our regulations require that this showing be based on the four statutory reasonable progress factors: The costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources. 40 CFR 51.308(d)(1)(ii). We must determine whether the State's showing based on the four factors is reasonable. 40 CFR 51.308(d)(1)(iii).
Here, it is worth noting the process North Dakota used to evaluate potential reasonable progress controls. North Dakota employed certain screening tools to identify sources in North Dakota that potentially affect visibility in Class I areas. It focused mainly on point sources, starting with the list of sources subject to Title V permitting requirements. It further pared this list by focusing on the ratio of emissions to distance to the nearest Class I area, known as Q/D. A Q/D value of 10 was chosen as a threshold. North Dakota chose this value based on FLM guidance and the State's interpretation of statements in EPA's BART guidelines as to sources that could reasonably be exempted from the BART review process;
North Dakota eliminated any source with a Q/D less than 10 from further consideration for reasonable progress controls. Then, North Dakota eliminated several sources with a Q/D over 10 that, as a result of events after the 2000 to 2004 baseline period, had reduced emissions sufficiently so that the sources' Q/D became less than 10. After this paring, seven units remained. We note that four of the remaining seven units are EGUs, and three of them are comparable in size and emissions to some of the largest BART sources in North Dakota.
For these seven remaining units only, North Dakota considered the four statutory reasonable progress factors in evaluating potential control technologies for reducing SO
As noted in a prior response, we conclude that it was not reasonable for North Dakota to model visibility improvement for potential individual source reasonable progress controls using current degraded background. As explained, we conclude that the State's approach is inconsistent with the CAA. We also note that the State's use of current degraded background to analyze single-source controls is facially inconsistent with the Q/D threshold it used to determine which sources should be retained for a detailed evaluation of reasonable progress controls. As noted, the State selected a Q/D of 10 based in part on EPA BART guidance on sources that could be considered to contribute to visibility impairment. That guidance relied on a contribution threshold of 0.5 deciviews, which was premised on CALPUFF modeling using natural background. By modeling single-source impacts and benefits using current degraded background, North Dakota employed a completely different metric that rendered meaningless its Q/D threshold and subsequent analysis of the four factors.
First, we have refined our guidance and our views on reasonable progress since the cited document was issued. In 2007, we issued formal reasonable progress guidance, which clearly contemplates that controls may be evaluated on a source-specific basis.
“However, the statutory factors must be applied before determining whether given emission reduction measures are reasonable. In particular, the State should adopt a rate of progress greater than the glidepath if this is found to be reasonable according to the statutory factors.”
“If after applying the four statutory reasonable progress factors, the rate of visibility improvement is still less than the uniform glide path, States may adopt the calculated RPGs, provided that they explain in the SIP how achieving the uniform glide path is not reasonable based on the application of the factors. States must demonstrate why the slower rate is reasonable * * *”
Nor does the CAA itself provide any basis for the commenter's argument. The comment is in error in suggesting that the existence of requirements regarding visibility under the PSD permitting program necessarily implies that section 169A of the CAA cannot apply to sources subject to the PSD permitting program. As a general matter, it is well understood that the CAA frequently imposes overlapping requirements on sources. Nothing in Subpart I of Part C of Title I of the CAA, which provides for the PSD permitting program, indicates that sources subject to the PSD permitting program are somehow excluded from the requirements of Subpart II. Similarly, nothing in EPA's rules giving the minimum requirements for a state's PSD permit program at 40 CFR 51.166 or the federal PSD permit program at 52.21 supports the notion that sources subject to the PSD permit program are excluded from the requirements of Subpart II.
Furthermore, any reasonable reading of CAA section 169A reveals that Congress did not limit the requirements to achieve reasonable progress to BART and PSD sources. Congress required EPA to promulgate regulations to:
“require each applicable implementation plan for a State in which any area listed by the Administrator under subsection (a)(2) of this section is located * * * to contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal specified in subsection (a) of this section, including [BART].”
There is nothing in this language to suggest that Congress intended to exempt sources constructed after 1977, or to exempt sources subject to the PSD permitting program.
The commenter argues that CAA section 169A(g)(1) supports its view, claiming that “Section 169A(g)(1) defines the criteria to be employed in determining reasonable progress, but limits the application of that criteria to `any existing source.' ” The commenter interprets this term to mean sources constructed before 1977, but does not explain how reasonable progress toward the national goal of remedying existing impairment of visibility could continue to be made under the commenter's interpretation. Instead, the statute and our rules contemplate a periodic, continuing assessment of reasonable progress, including assessment of the four statutory factors for existing sources at the time of assessment. Thus, our regional haze regulations reflect a different interpretation—instead of “any existing source,” section 51.308(d)(1)(i)(A) refers to “potentially affected sources.” As discussed above, there is no suggestion that we intended to limit this to only mean sources constructed after 1977, and it is too late for the commenter to challenge our regional haze regulations now. Thus, the commenter's parsing of the statutory language and the legislative history is irrelevant. Furthermore, EPA's reports to Congress and other sources cited by the commenter do not reflect our interpretation of the RHR and therefore have no regulatory weight.
The NPS states similar concerns with North Dakota's use of inappropriate dollar per deciview estimates as a basis for determining that no additional controls were appropriate under RP for Coyote Station. NPS notes that EPA has recognized that the methods North Dakota used to reach that conclusion, both for estimating costs and visibility improvement, are invalid. NPS infers that North Dakota has not met its responsibility to conduct a valid RP analysis and that EPA must therefore assume that responsibility. An NPS analysis indicates SCR at Coyote would be more cost effective than at any other North Dakota EGU. NPS concludes that EPA must impose an RP emissions limit for Coyote of 0.07 lb/MMBtu (the same as for MRYS 1 and 2, and LOS 2).
As noted, with respect to other reasonable progress units, we have disregarded the State's visibility analysis in our review of the State's reasonable progress determinations and instead focused on the four reasonable progress factors. Except for AVS 1 and 2, we have determined that the State's reasonable progress determinations were not unreasonable.
We have already explained why we are not disapproving the State's rejection of SCR at Coyote.
Some commenters cited a 2009 Clean Air Task Force report in stating that coal-fired power plants in North Dakota put 207 people at risk of premature death, 321 people at risk of a heart attack, and 3,500 at risk of an asthma attack each year. Several commenters encouraged EPA to finalize the regional haze proposal citing their own health problems, most notably individuals with asthma or respiratory problems, seniors, and parents of asthmatic children. One commenter stated the rate of asthma in North Dakota children is increasing rapidly.
Some commenters stated that haze pollution negatively impacts ecosystem health. Commenters expressed concern for the effects of haze pollution on wildlife, farm animals, plants including crops, and water bodies. Several commenters generally expressed their disapproval of coal as an energy source because it is dirty, with some insisting that North Dakota invest in cleaner energy.
We take our duty to estimate the cost of controls very seriously, and make every attempt to make a thoughtful and well informed determination. However, we do not consider a potential increase in electricity rates to be the most appropriate type of analysis for considering the costs of compliance in a BART determination. Nevertheless, our analysis indicates that the annual costs to CCS and AVS associated with our FIP will be relatively modest considering the size of the plants, and impacts to rate payers should be much lower than anticipated by commenters.
We received three resolutions from cities in Minnesota, including Roseau, Big Falls, and Little Fork, which opposed our rulemaking. These resolutions included comments about the proposed FIP for SCR technology at MRYS, including comments about the high cost, that the technology had not been shown to work at similar plants, and that there would be no humanly perceptible visibility improvements over the State's plan. The resolutions also noted that Minnkota had already incurred significant costs for installing SNCR and contracting for renewable sources, and that these expenditures were resulting in rate increases.
We received petitions and mass mailer letters from nine rural power cooperative associations and over 3,000 comments generated through a Web site established by an organization named Partners for Affordable Energy. Comments from these letters and emails included the following: that Congress left the primary responsibility for SIPs with states, that states have superior knowledge of local conditions and needs, and that EPA's plan would provide imperceptible visibility benefits at huge costs. The comments also urged EPA to allow North Dakota to make its own decisions regarding its clean air programs.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). As discussed in detail in section C below, the FIP applies to only two facilities. It is therefore not a rule of general applicability.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR Part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this action on small entities, I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. The FIP that EPA is finalizing for purposes of the visibility prong of section 110(a)(2)(D)(i)(II) consists of the combination of the approval of the State's RH SIP submission and the Regional Haze FIP by EPA that adds additional controls to certain sources. The Regional Haze FIP that EPA is finalizing for purposes of the regional haze program consists of imposing federal controls to meet the BART requirement for NO
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Under Title II of UMRA, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million by State, local, or Tribal governments or the private sector in any 1 year. In addition, this rule does not contain a significant Federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.
This 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, as specified in Executive Order 13132, because it merely addresses the State not fully meeting its obligation to prohibit emissions from interfering with other states' measures to protect visibility established in the CAA and not fully meeting its obligation to adopt a SIP that meets the regional haze requirements under the CAA. Thus, Executive Order 13132 does not apply to this action.
Executive Order 13175, entitled
Executive Order 13045:
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
We have determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This rule limits emissions of NO
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 5, 2012. Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d) as it promulgates a FIP under CAA section 110(c). Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).
Environmental protection, Air pollution control, Intergovernmental relations, Incorporation by reference, Nitrogen dioxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(d) * * *
(e) * * *
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(2) These emission limitations shall apply at all times, including startups, shutdowns, emergencies, and malfunctions.
(d)
(e)
(2)
(ii) An hourly average NO
(iii) Data reported to meet the requirements of this section shall not include data substituted using the missing data substitution procedures of subpart D of 40 CFR part 75, nor shall the data have been bias adjusted according to the procedures of 40 CFR part 75.
(f)
(1) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results.
(2) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR part 75.
(3) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS.
(4) Any other records required by 40 CFR part 75.
(g)
(1) Owner/operator shall submit quarterly excess emissions reports no later than the 30th day following the end of each calendar quarter. Excess emissions means emissions that exceed the emissions limits specified in paragraph (c) of this section. The reports shall include the magnitude, date(s), and duration of each period of excess emissions, specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted.
(2) Owner/operator shall submit quarterly CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, any CEMS repairs or adjustments, and results of any CEMS performance tests required by 40 CFR part 75 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(3) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, such information shall be stated in the report.
(h)
(2) Owner/operator shall submit semi-annual progress reports on construction of any such equipment.
(3) Owner/operator shall submit notification of initial startup of any such equipment.
(i)
(j)
Fish and Wildlife Service, Interior.
Final rule.
We, the Fish and Wildlife Service (Service), are listing the Miami blue butterfly
This final rule becomes effective on April 6, 2012.
This final rule is available on the Internet at
Larry Williams, Field Supervisor, U.S. Fish and Wildlife Service, South Florida Ecological Services Office (see
This document consists of: (1) A final rule to list the Miami blue butterfly
We use many acronyms throughout this final rule. To assist the reader, we provide a list of these acronyms here for easy reference:
Federal actions for the Miami blue butterfly prior to August 10, 2011, are outlined in our emergency rule (76 FR 49542), which was published on that date. Publication of the proposed rule (76 FR 49408), concurrently published on that date, opened a 60-day comment period, which closed on October 11, 2011. The emergency rule provides protection for the Miami blue, ceraunus blue, nickerbean blue, and cassius blue butterflies for a 240-day period, ending on April 6, 2012. Because of this time constraint, and the threat of collection of these species if the emergency rule expires before the proposed rule is finalized (see Factor B, Overutilization for commercial, recreational, scientific, or educational purposes), this rule does not have the standard 30-day period
We received comments from the public on the proposed listing action, including the proposed listing of three similar butterflies due to similarity of appearance and our determination that designation of critical habitat is not prudent. In this rule, we respond to these issues in a single comment section.
The Miami blue is a small, brightly colored butterfly approximately 0.8 to 1.1 inches (1.9 to 2.9 centimeters [cm]) in length (Pyle 1981, p. 488), with a forewing length of 0.3 to 0.5 inches (8.0 to 12.5 millimeters) (Minno and Emmel 1993, p. 134). Wings of males are blue above (dorsally), with a narrow black outer border and white fringes; females are bright blue dorsally, with black borders and an orange/red and black eyespot near the anal angle of the hindwing (Comstock and Huntington 1943, p. 98; Minno and Emmel 1993, p. 134). The underside is grayish, with darker markings outlined with white and bands of white wedges near the outer margin. The ventral hindwing has two pairs of eyespots, one of which is capped with red; basal and costal spots on the hindwing are black and conspicuous (Minno and Emmel 1993, p. 134). The winter (dry season) form is much lighter blue than the summer (wet season) form and has narrow black borders (Opler and Krizek 1984, p. 112). Seasonal wing pattern variation may be caused by changes in humidity, temperature, or length of day (Pyle 1981, p. 489). Miami blue larvae are bright green with a black head capsule, and pupae vary in color from black to brown (Minno and Emmel 1993, pp. 134–135).
The Miami blue is similar in appearance to three other sympatric (occupying the same or overlapping geographic areas, without interbreeding) butterfly species that occur roughly in the same habitats: cassius blue
In a comparison of Miami blue butterfly specimens within the Florida Museum of Natural History (FLMNH) collection, Saarinen (2009, pp. 42–43) found a significant difference in forewing length between males and females, with males having shorter forewings than females. However, no significant differences were found between forewing length in comparing wet and dry seasons, decade of collection, seven different regions, or between eastern mainland and Keys specimens (Saarinen 2009, pp. 42–43). No seasonal size differences were found between the mainland populations and those in the Keys (Saarinen 2009, p. 43).
In a comparison of body size in a recent Miami blue population, females were significantly larger than males, and individuals sampled in the wet season were also significantly larger than in the dry season (Saarinen 2009, p. 43). In a comparison of recent Bahia Honda State Park (BHSP) individuals with specimens from historical collections (FLMNH data), BHSP individuals were significantly larger than historical specimens, females from BHSP were significantly larger than historical female specimens, and BHSP adults measured in wet seasons were larger than those sampled in wet seasons in museum collections (Saarinen 2009, p. 43). Saarinen (2009, p. 47) suggested that perhaps larger adults were selected for over time with larger adults being more capable of dispersing and finding food and mates. Limited food resources during larval development or abrupt termination of availability of food in the last larval instar can lead to early pupation and a smaller adult size (T.C. Emmel, pers. comm., as cited in Saarinen 2009, p. 47). It is possible that differences in host plant (
The Miami blue belongs to the family Lycaenidae (Leach), subfamily Polyommatinae (Swainson). The species
In 2003, questions about the taxonomic identity of Miami blues from BHSP were raised by a few individuals. To address these questions, the Service sent two pairs (male and female) of adult specimens to three independent taxonomists and reviewers (Dr. Jacqueline Miller, Associate Curator, Allyn Museum of Entomology (AME), FLMNH; Dr. Paul Opler, Colorado State University; and John Calhoun, Museum of Entomology, Florida State Collection of Arthropods) for verification. To avoid harm to the wild population, scientists examined moribund adults from a captive colony generated from individuals taken from BHSP. Each reviewer independently confirmed through various means (
Like all butterflies, the Miami blue undergoes complete metamorphosis, with four life stages (egg, caterpillar or larva, pupa or chrysalis, and adult). The generation time is approximately 30–40 days (Carroll and Loye 2006, p. 19; Saarinen 2009, pp. 22, 76) and similar for both males and females (Trager and Daniels 2011, p. 35). Although a single Miami blue female can lay 300 eggs, high mortality may occur in the immature larval stages prior to adulthood (T. Emmel, University of Florida [UF], pers. comm. 2002). Trager and Daniels (2011, p. 40) indicated that larger, longer-lived females demonstrate a higher fecundity. Reported host plants are blackbead (
On nickerbean plants (
On blackbead plants, females lay eggs on flower buds and emerging leaves (Cannon
On balloonvine, females lay single eggs near fruit (capsules) (Carroll and Loye 2006, p. 18). Newly hatched larvae chew distinctive holes through the outer walls of the capsules to access seeds (Minno and Emmel 1993, p. 134). After consuming seeds within the natal capsule, larvae must crawl to a sequence of two or three balloons before growing large enough to pupate. Attending ants follow through the same holes (see Interspecific relationships below). Miami blues were also observed to commonly pupate within mature capsules (sometimes with ants in attendance within the capsule) (Carroll and Loye 2006, p. 20).
The Miami blue has been described as having multiple, overlapping broods year-round (Pyle 1981, p. 489). Adults can be found every month of the year (Opler and Krizek 1984, pp. 112–113; Minno and Emmel 1993, p. 135; 1994, p. 647; Emmel and Daniels 2004, p. 9; Saarinen 2009, p. 22). Opler and Krizek (1984, pp. 112–113) indicated one long winter generation from December to April, during which time the adults are probably in reproductive diapause (a period in which growth, development, and physiological activity is suspended or diminished); a succession of shorter generations was thought to occur from May through November, the exact number of which is unknown. Glassberg
Information on adult lifespan is limited. Based on field studies, adult Miami blues have been found to live 9 days, but most adults are thought to live only a few days (J. Daniels, UF, pers. comm. 2003a, 2003b). In general, adults may survive less than a week in the wild; there are approximately 8–10 generations per year (Saarinen
Range size and dispersal—At this time, it is unclear how far adult Miami blues can disperse and the mechanisms for dispersal (
Interspecific relationships—As in many lycaenids worldwide (Pierce
Late Miami blue instars were always found in association with ants, but early instars, prepupae, and pupae were frequently found without ants present (Saarinen and Daniels 2006, p. 70).
In the 1980s, Miami blue larvae that fed on balloonvine in the upper Keys were also tended by ants (
More recently, Trager and Daniels (2009, p. 479) most commonly found
The Miami blue is a coastal butterfly reported to occur in openings and around the edges of hardwood hammocks (forest habitats characterized by broad-leaved evergreens), and in other communities adjacent to the coast that are prone to frequent natural disturbances (
Larval host plants include blackbead, nickerbean, balloonvine, and presumably
Prior to the 1970s, documented host plants for the butterfly were nickerbean and blackbead (J. Calhoun, pers. comm. 2003b). Balloonvine (
Calhoun (pers. comm. 2003b) suggested that the Miami blue may simply utilize whatever acceptable hosts are available under suitable conditions. According to Calhoun (pers. comm. 2003b), a review of the historical range of the butterfly and its host plants suggests balloonvine was a more recent larval host plant and temporarily surpassed nickerbean as the primary host plant. As native coastal habitats were destroyed, balloonvine readily invaded disturbed environments, and the Miami blue used what was most commonly available. Minno (pers. comm. 2010) suggested that the Miami blue used balloonvine on Key Largo and Plantation Key extensively in the 1970s through the 1990s, noting that nickerbean, blackbead, and perhaps
The Miami blue metapopulation (series of small populations that have some level of interaction) at KWNWR was found to rely upon Florida Keys blackbead as the singular host plant (Cannon
Adult Miami blues have been reported to feed on a wide variety of nectar sources, including Spanish needles (
Nectar sources must be near potential host plants since the butterflies are presumably sedentary and may not travel between patches of host and nectar sources (Emmel and Daniels 2004, p. 13). This may help explain the absence of the Miami blue from areas in which host plants are abundant and nectar sources are limited (J. Calhoun, pers. comm. 2003b). Emmel and Daniels (2004, p. 13) argued that it is potentially critical that sufficient available adult nectar sources be directly adjacent to host patches and also important that a range of potential nectar sources be available in the event one plant species goes out of flower or is adversely impacted by environmental factors. Cannon
The Miami blue butterfly (
Although information on distribution is somewhat limited, it is clear that the historical range of the Miami blue has been significantly reduced. The type series (
The Miami blue was most common on the southern mainland and the Keys, especially Key Largo and Big Pine Key (Calhoun
Based upon examination of specimens from museum collections (N = 689), Saarinen (2009, pp. 42, 55–57) found a large, primarily coastal, geographic distribution for the butterfly. Most specimens from an 11-county area from 1900 to 1990 were collected in Miami-Dade and Monroe Counties (Saarinen 2009, pp. 42, 58). Records from Miami-Dade County (N = 212) were most numerous in the 1930s and 1940s; records from Monroe County (N = 387) (including all of the Florida Keys) were most numerous in the 1970s (Saarinen 2009, pp. 42, 58). Saarinen (2009, p. 47) was not able to quantify issues of collector bias and noted that collecting restrictions, inaccessibility of certain islands, and targeted interest in certain areas may have been factors influencing the relative abundance (and distribution) of specimens collected. For example, it is unclear whether Key
By the 1990s, very few Miami blue populations were known to persist, and the butterfly had not been seen on the western Florida coast since 1990, where it was last recorded on Sanibel Island (Calhoun
The Miami blue was presumed to be extirpated until its rediscovery in 1999 by Jane Ruffin, who observed approximately 50 individuals at a site in the lower Keys (Bahia Honda) (Ruffin and Glassberg 2000, p. 3; Calhoun
Numerous searches for the Miami blue have occurred in the past decade by various parties. The Miami blue was not observed on 105 survey dates at 11 locations on the southern Florida mainland from 1990 to 2002 (Edwards and Glassberg 2002, p. 4). In the Keys, surveys during the same time period also produced no sightings of the Miami blue at 29 locations for 224 survey dates (Edwards and Glassberg 2002, p. 4). In 2002, the Service initiated a status survey, contracting researchers at the UF, to search areas within the subspecies' historical range, concentrating on the extreme south Florida mainland and throughout the Keys. Despite surveys at 45 sites during 2002–2003, adults or immature stages were found only at a single site near BHSP on West Summerland Key (Emmel and Daniels 2004, pp. 3–6; 21–25) (approximately 1.9 mi [3 km]) west of BHSP). The Miami blue was not found on the mainland, including Fakahatchee Strand, Charles Deering Estate, ENP, Marco Island, or Chokoloskee (Emmel and Daniels 2004, pp. 5–6, 25). It was also absent from the following locations in the Keys: Elliott, Old Rhodes, Totten, and Adams Key in Biscayne National Park (BNP) and Key Largo and Plantation Key in the Upper Keys; Lignumvitae, Lower Matecumbe, Indian, and Long Keys in the Middle Keys; and Little Duck, Missouri, Ohio, No Name, Big Pine, Ramrod, Little Torch, Wahoo, Cudjoe, Sugarloaf, and Stock Island in the Lower Keys (Emmel and Daniels 2004, pp. 3–5; 21–24).
Based upon an additional independent survey in 2002, the Miami blue was also not found at 18 historical locations where it had previously been observed or collected in Monroe, Broward, Miami-Dade, and Collier Counties into the 1980s (D. Fine, unpub. data, pers. comm. 2002). These were: Cactus Hammock (Big Pine Key), County Road (Big Pine Key), Grassy Key, John Pennekamp Coral Reef State Park (Key Largo), Windley Key, Crawl Key, Stock Island, Plantation Key, and Lower Matecumbe Key in Monroe County; Hugh Taylor Birch State Park and Coral Springs (2 locations) in Broward County; Redlands, Frog City, Card Sound Road, and an unidentified road in Miami-Dade County; and Marco Island and Fakahatchee Strand State Preserve in Collier County.
In 2003, the Service contracted the North American Butterfly Association (NABA) to perform systematic surveys in south Florida and the Keys to identify all sites at which 21 targeted butterflies, including the Miami blue, could be found. Despite considerable survey effort (
Although two fourth-instar larvae were documented on West Summerland Key in November 2003, on unprotected land approximately 2.2 mi (3.6 km) west of BHSP (Emmel and Daniels 2004, pp. 3, 24, 26), none have been seen there since. According to Daniels (pers. comm. 2003c), an adult (or adults) was likely blown to this key from BHSP by strong winds or was at least partially assisted by the wind.
In November 2006, Miami blues were discovered on islands within KWNWR (Cannon
Overall, the Miami blue has undergone a substantial reduction in its historical range, with an estimated >99 percent decline in area occupied (Florida Fish and Wildlife Conservation Commission [FWC] 2010, p. 11). In 2009, metapopulations existed at two main locations: BHSP and KWNWR, roughly 50 mi (80 km) apart. The metapopulation at BHSP is now possibly extirpated with the last adult documented in July 2010 (A. Edwards, Florida Atlantic University, pers. comm. 2011). It is feasible that additional occurrences exist in the Keys, but these may be ephemeral and low in
BHSP is a small island at the east end of the lower Keys, approximately 7.0 mi (11.3 km) west of Vaca Key (Marathon) and 2.0 mi (3.2 km) east of Big Pine Key. The amount of suitable habitat (habitat supporting larval host plants and adjacent adult nectar sources) within BHSP is approximately 1.5 acres (ac) (0.6 hectares [ha]). Of the suitable habitat available at BHSP, approximately 85 percent (1.3 ac [0.5 ha]) was occupied by the Miami blue (Emmel and Daniels 2004, p. 12). The metapopulation comprised 13 distinct colonies, with the core comprising 3 or 4 colonies, located at the southwestern end (Emmel and Daniels 2004, pp. 6, 27). This area contained the largest contiguous patch of host plants, although the size was estimated to be 0.8 ac (0.32 ha) (Emmel and Daniels 2004, p. 12). The second largest colony occurred at the opposite (northeast) end of BHSP and was based solely on the presence of two to three small, isolated patches of nickerbean directly adjacent to an existing nature trail and parking area (Emmel and Daniels 2004, p. 6). The remaining colonies were isolated, with most occurring in close proximity to the main park road (Emmel and Daniels 2004, pp. 13, 27). Isolated colonies used very small patches of nickerbean (
Efforts to define the limits of the KWNWR metapopulation were conducted from November 2006 to July 2007 (Cannon
In a separate study, Daniels also found four of the sites previously occupied within KWNWR to support the Miami blue variously from 2008 to 2010 (Emmel and Daniels 2008, pp. 7–10; 2009, pp. 9–13; Daniels 2008, pp. 1–6; Daniels 2010, pp. 3–5; J. Daniels, pers. comm. 2010a). Survey effort, however, was limited. Some previously occupied islands were not searched, and no new occupied areas were identified.
Followup presence and absence surveys by KWNWR in 2009 showed that the Miami blue was present on two sites in the Marquesas, but not on Boca Grande (P. Cannon, pers. comm. 2010a). In 2010, similar surveys indicated that the Miami blue was present on Boca Grande and one site in the Marquesas; it was still not located on Woman Key (P. Cannon, pers. comm. 2010b; T. Wilmers, pers. comm. 2010a). In March and April 2011, Miami blues were still present on five of seven sites where previously found in KWNWR (T. Wilmers pers. comm. 2011a; Haddad and Wilson 2011, p. 2).
Although Miami blue butterflies were successfully reared in captivity, reintroductions have been unsuccessful. Since 2004, approximately 7,140 individuals have been released (J. Daniels, pers. comm. as cited in FWC 2010, p. 8). Initially, larvae were released in the vicinity of Flamingo at multiple locations within ENP (J. Daniels, pers. comm. 2012). Between August 2007 and November 2008, reintroduction events were carried out at BNP and DJSP 12 times resulting in the release of 3,553 individuals (276 adults/3,277 larvae) (Emmel and Daniels 2009, p. 4). Monitoring efforts have been limited; 19 days were spent monitoring reintroduction sites (Emmel and Daniels 2009, p. 4). To date, no evidence of colony establishment has been found (Emmel and Daniels 2009, p. 4). It is not clear why reintroductions were unsuccessful. Numerous factors may have been involved (
Prior to its apparent extirpation, the metapopulation at BHSP was monitored regularly from 2002 to 2009 (Emmel and Daniels 2009, p. 4). Pollard transects (fixed-route transects walked weekly under favorable weather conditions) at the south-end colony site (largest) yielded annual peak counts of approximately 175, 84, 112, and 132, from 2002 to 2005 (prior to hurricanes), and 82, 81, 120, and 38, from 2006 to 2009 (Emmel and Daniels 2009, p. 4). From October 2002 to September 2003, abundance estimates using mark-release-recapture (Schnabel method) ranged from a low of 19.7 in February 2003 to a high of 114.5 in June 2003 (Emmel and Daniels 2004, p. 9).
Counts ranged from 6 to 100 adults during surveys by the NABA, conducted from February 2004 to January 2005 (NABA 2005, unpub. data). Monthly (2003 to 2006) or bimonthly (2007) monitoring by Salvato (pers. comm. 2011c) at the south-end colony produced annual average counts of 129, 58, 46, 6, and 8, respectively, from 2003 to 2007. Salvato (pers. comm. 2011c) observed 21, 10, and 0 Miami blues from 2008 to 2010, respectively, based on limited surveys.
Due to the differences in methodologies and other factors, the above estimates cannot be compared. Although abundance of select butterflies may change frequently, their overall geographic distribution from year-to-year is often more consistent. Given that the Miami blue has overlapping generations and, at times, capacity for explosive growth, it may be useful to report population status in terms of occupied habitat, as has been done for other butterflies (Longcore
In general, early (dry) season numbers were low in most years and were attributed to a persistent south Florida drought (Emmel and Daniels 2009, p. 4). Abundance trends indicated that there was a marked decrease in the number of
Four hurricanes affected habitat at BHSP in 2005, resulting in reduced abundance of Miami blue following subsequent storms that continued throughout 2006 (Salvato and Salvato 2007, p. 160). Although no quantitative measurements were taken, a significant portion of the nickerbean in the survey area (> 35 percent of the area of available habitat) was damaged by the storms; roughly 60–80 percent of the vegetation on the southern side of the island was visually estimated to have been heavily damaged, including large stands of host and nectar plants (Salvato and Salvato 2007, p. 156). Despite a decline in abundance after the hurricanes, the Miami blue had appeared to rebound toward pre-storm abundance by the summer months of 2007 (Salvato and Salvato 2007, p. 160). However, peaks remained below those found prior to the 2005 hurricane season (Emmel and Daniels 2009, p. 4).
Although it is unclear when iguanas became established at BHSP, effects of herbivory on the host plant were apparent by late 2008 or early 2009 (Emmel and Daniels 2009, p. 4; Daniels 2009, p. 5; P. Cannon, pers. comm. 2009; A. Edwards, pers. comm. 2009; P. Hughes, pers. comm. 2009; M. Salvato, pers. comm. 2010a). Defoliation was mostly limited to the south-end colony site (Emmel and Daniels 2009, p. 4). Cooperative eradication efforts to address this problem began in 2009 and continue today; however, iguanas continue to impact terminal nickerbean growth (see
The metapopulation has diminished in recent years likely due to the combined effects of small population size, drought, cold temperatures, and iguanas (see
The metapopulation at KWNWR yielded counts of several hundred, at various times, in 2006–2007. Checklist counting, a method where suitable habitat is initially screened to determine the presence of target species, was used during surveys conducted between November 2006 and July 2007 to document the distribution and abundance of Miami blues (Cannon
Periodic surveys at KWNWR in 2008 and 2009 suggested relatively lower levels of abundance, based upon limited effort (Emmel and Daniels 2008, pp. 7–10; 2009, pp. 9–13) and using different methodologies. In February 2008, researchers recorded 3 adults on Boca Grande and a total of 32 adults at two islands within the Marquesas; lack of rainfall resulted in very limited adult nectar sources and limited new growth of larval host plants (Emmel and Daniels 2008, pp. 7–8). In April 2008, one adult was recorded on Boca Grande; one adult was also recorded at another island (Emmel and Daniels 2008, p. 8). In June 2008, no adults were located on Boca Grande, and a total of 27 were recorded from two other islands (Emmel and Daniels 2008, p. 9). In August 2008, no adults were found at Boca Grande, and five adults were recorded at another island (Emmel and Daniels 2008, p. 10). In March 2009, no adults were recorded on Boca Grande; habitat conditions were deemed very poor, with limited new host growth and available nectar resources (Emmel and Daniels 2009, p. 12). In April 2009, researchers found a total of 22 adults from 2 islands within the Marquesas (Emmel and Daniels 2009, p. 13).
Based upon limited data and observations, the Miami blue persisted on various islands within the KWNWR in 2010. From April through July 2010, the Miami blue was observed on 5 of 10 dates at one location within the Marquesas, although in limited numbers during brief surveys (T. Wilmers, pers. comm. 2010b). On July 28, 2010, researchers recorded 19 adults from 3 islands within the Marquesas, in limited surveys; another 25 adults were recorded on Boca Grande in less than 1 hour of survey work (J. Daniels, pers. comm. 2010a). On September 30, 2010, dozens of Miami blues were observed on Boca Grande; this may have represented an actual population size in the hundreds (N. Haddad, North Carolina State University [NCSU]), pers. comm. 2010). On November 24, 2010, researchers positively identified 48 Miami blue adults on Boca Grande in less than 3 hours of surveys, noting that assessment was difficult due to the many hundreds or possibly thousands of cassius blues, which were also present (P. Cannon, pers. comm. 2010b; T. Wilmers, pers. comm. 2010a). In March and April 2011, researchers observed Miami blue adults at five sites within KWNWR in numbers similar to those reported above (Haddad and Wilson 2011, p. 2). In July 2011, fewer adults were observed (P. Hughes, pers. comm. 2011a). In September 2011,
At this time, both the size of the metapopulation at KWNWR and its dynamics are unclear. However, available data (given above) suggest wide fluctuations of adults within and between years and sites. The frequency of dispersal between islands is also not known (Cannon
Saarinen (2009, pp. 15, 29–33, 40, 44) and Saarinen
Both historical and contemporary populations showed evidence of a metapopulation structure with interacting subcolonies (E.V. Saarinen and J.C. Daniels, unpub. data as cited in Saarinen 2009, p. 49). However, the metapopulations at BHSP and KWNWR are separated by a distance of more than 43 mi (70 km). Given the Miami blue's dispersal capabilities (E.V. Saarinen and J.C. Daniels, unpub. data as cited in Saarinen 2009, p. 22), it is unlikely that they interacted. Saarinen's work showed no gene flow and a clear distinction between the BHSP and KWNWR metapopulations (Saarinen 2009, pp. 36, 74, 89) (see
Studies addressing molecular diversity at BHSP showed the effective number of alleles remained relatively constant over time, at both a monthly (generational) and annual scale (Saarinen 2009, pp. 71, 84). Allelic (gene) richness was also stable over time in BHSP, with values ranging from 2.988 to 3.121, when averaged across the 12 microsatellite loci from September 2005 to October 2006. These values were lower than those in KWNWR [3.790] (Saarinen 2009, p. 71). However, data showed that the BHSP metapopulation retained an adequate amount of genetic diversity to maintain the population in 2005 and 2006, despite perceived changes in overall population size (Saarinen 2009, p. 77). No significant evidence of a recent genetic bottleneck was found in the BHSP generations analyzed; however, there may have been a previous bottleneck that was undetectable with the methods used (Saarinen 2009, pp. 72, 85, 141).
To explore the level of gene flow and connectivity between discrete habitat patches at BHSP, Saarinen (2009, pp. 64–65) conducted analyses at several spatial scales, analyzing BHSP as a single population (with no subdivision), as individual colonies occupying discrete habitat patches (as several groups acting in a metapopulation structure), and as a division of clumped colonies versus other, more spatially distant colonies. Analyses of microsatellite frequencies were also used to assess gene flow between habitat patches (Saarinen 2009, p. 72). While some subpopulations were well linked, others showed more division (Saarinen 2009, p. 73). High levels of gene flow (and relatively little differentiation) were apparent even between distant habitat patches on BHSP, and the smaller patches appeared to be important links in maintaining connectivity (Saarinen 2009, pp. 78, 141). Overall, gene flow between habitat patches on BHSP was considered crucial to maintaining genetic diversity and imperative for the Miami blue's long-term persistence at this location (Saarinen 2009, p. 141).
The metapopulation structure on KWNWR is more extensive than that which occurred at BHSP (Saarinen 2009, p. 49). Due to small sample sizes from Boca Grande, only samples from the Marquesas Keys were used for genetic analysis of KWNWR, and results were limited (Saarinen 2009, pp. 66, 72). Overall, this metapopulation was found to have higher genetic diversity (mean observed heterozygosity of 51 percent versus 39.5 percent) than the BHSP population (Saarinen 2009, p. 49). Allelic richness (3.790 in February 2008) was also higher in KWNWR (Saarinen 2009, pp. 71, 75). Accordingly, KWNWR is a particularly important source of variation to be considered for future conservation efforts for this taxon (Saarinen 2009, pp. 71, 75), especially now if this is the only extant metapopulation(s) remaining. The KWNWR metapopulation showed signs of a bottleneck and may support the hypothesis that it is a newly founded population (Saarinen 2009, pp. 76, 141). Further work is needed to better understand the metapopulation dynamics and genetic implications in this population.
In the proposed rule published on August 10, 2011 (76 FR 49408), we requested that all interested parties submit written comments on the proposal by October 11, 2011. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in The Miami Herald, Orlando Sentinel, Tampa Tribune, The Daytona Beach News-Journal, and the Key West Citizen on Sunday, August 21, 2011. We did not receive any requests for a public hearing.
During the comment period for the proposed rule, we received 37 comment letters (from 35 entities) directly addressing the proposed listing of the Miami blue butterfly with endangered status and the proposed listing of the cassius blue, ceraunus blue, and nickerbean blue butterflies as threatened under similarity of appearance. With regard to listing the Miami blue butterfly as endangered, 25 comments were in support, 2 were in opposition, and 10 were neutral. With regard to listing the other 3 butterflies under similarity of appearance, 4 comments were in support, and 16 comments were in opposition. Of those comments in opposition, six suggested alternatives that were more limited in scope (
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from 14 individuals with specialties that include scientific expertise with butterflies, particularly lycaenids, and general expertise with ecology and conservation. We received independent responses from eight of the peer reviewers. We also received two collaborative responses from State governmental agencies, which had been solicited as part of this process. We address these under
We reviewed all comments received from peer reviewers for substantive and new information regarding the listing of the Miami blue butterfly as endangered and the cassius blue, ceraunus blue, and nickerbean blue butterflies as threatened under similarity of appearance. The peer reviewers concurred with the conclusion to list the Miami blue butterfly as endangered and provided additional information, clarifications, and suggestions to improve the final rule. In general, the majority of peer reviewers opposed Federal listing of the three other butterflies due to similarity of appearance; however, one reviewer agreed with the original proposal, and three suggested applying the similarity of appearance listing only to select areas where the butterflies may co-occur with the Miami blue.
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We do not dispute the arguments of the two peer reviewers and some commenters who suggested that industrious or unethical collectors have enough information to be able to locate the remaining populations. We acknowledge that general location information is provided within the rule, and more specific location information can be found through other sources. However, we maintain that designation of critical habitat would more widely publicize the potential locations of the butterfly and its essential habitat to poachers, collectors, vandals, and mischievous individuals, thereby exacerbating the already significant threats of collection, vandalism, disturbance, fire, and other harm from humans.
One commenter, who agreed with our decision that designating critical habitat is not prudent, provided additional references (Hoekwater 1997, Kleiner 1995, O'Neill 2007) showing that individuals poach rare and imperiled taxa for profit, even to the point of driving a species to extinction in order to increase the value of individual specimens (Laufer 2009). We want to stress that our reasons for not designating critical habitat go beyond the potential increased threat of collection, but also involve potential associated increased risks to sensitive and important habitats (see also
We agree that designation of critical habitat can provide some benefits to listed species (
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One commenter indicated that the Miami blue is one of the rarest butterflies in the United States and in the world. The commenter specifically stated that it may be the single rarest butterfly species, and is rarer than at least 14 species that are listed under the Act. He indicated that understanding spatial and population structure and dispersal are keys to recovery, as are restoration and reintroduction. Another commenter, certified by the International Union for the Conservation of Nature to evaluate extinction risk, stated that the Miami blue meets all five criteria for listing under the Act. Another commenter urged immediate action to address threats and the development of a “functional” recovery plan, with the assistance of experts. Another commenter encouraged the Service to take all possible steps to recover the subspecies, stressing the importance of future reintroductions in the best possible habitats.
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We recognize that listing may inadvertently increase the threat of collection and trade (
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We agree that not all available host plants at a given location may be appropriate for larval use and that actual available suitable host plant mass may be far less than the total present. This is consistent with findings from available research. For example, when the Miami blue occurred at BHSP, only a small portion of available habitat on the island appeared occupied, and higher abundances were found when there was a large quantity of new terminal growth of nickerbean and when more nectar sources were available (Emmel and Daniels 2004, pp. 9–12).
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One commenter stated that, although the butterfly appears to be sedentary now, it once occurred widely in the Keys and coastal areas of central and southern Florida and that it is capable of dispersing and colonizing new areas, including islands.
Commenters suggested that keys to designing a recovery strategy include a clear focus on basic life history, population dynamics, and an improved understanding of dispersal. One commenter indicated that a well-informed recovery plan would include a strategy for multiple interconnected populations that buffer the subspecies when some localized populations are lost and that more information is needed about dispersal capacity.
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Some reviewers and commenters supported the listing of the similar butterflies as proposed. Other reviewers, commenters, and FWC suggested alternatives for application of the similarity of appearance provision of the Act. These alternatives consisted of limiting application to only areas where the butterflies are sympatric with the Miami blue (potential or occupied habitat), only within critical habitat (if designated), only within specified counties, or only within counties within the Miami blue's historical range.
Those in opposition generally believed that listing similar butterflies would impede research and discourage cooperation or scientific support for future listing actions. Several commenters indicated that it would negatively and needlessly impact collectors, hobbyists, and those who collect insects for educational purposes. One commenter stated that there should not be any restrictions on the sale, purchase, or gifts of legally obtained cassius, ceraunus, or nickerbean blue butterflies. One commenter warned that the “unnecessary ban on collection and commerce” of the three “similar” species could ultimately harm the butterflies by impeding research and future discoveries, and also harm the relationships between the Service and hobbyist collectors, researchers, and naturalists. The same commenter suggested that careful monitoring and patrolling of occupied and historical suitable sites may be a more effective protective measure than enforcing a ban on collection and commercial transactions involving these taxa at a state or national level.
Another commenter noted that the action was not necessary because those seeking to collect the Miami blue or similar species on protected conservation lands would theoretically already possess the necessary permits. Some commenters suggested that listing due to similarity of appearance was inconsistent with other butterfly listings that have similar species that more closely resemble each other and do not have similarity of appearance provisions.
We maintain that the Miami blue, due to its small population size and few populations, faces a significant threat from collection, and that prohibiting collection of similar butterflies within the historical range of the Miami blue is in the best interest of the subspecies. We have determined that limiting application of the special 4(d) rule to only the act of collecting and only within the historical range of the Miami blue is sufficient to protect the subspecies from threats faced due to collection pressure on the three similar butterflies. The proposed restrictions on trade and commerce have been removed, thus eliminating unnecessary restrictions and reducing regulatory burdens for most potentially affected parties (
With regard to concerns regarding research, studies can be conducted on the similarity of appearance butterflies in the vast majority of their ranges (
We agree that increased patrols and monitoring may be helpful in deterring collection of the Miami blue. However, due to limited resources, this may not be feasible.
We disagree with views that listing the other butterflies due to similarity of appearance is unnecessary because those seeking to collect the Miami blue or similar species on conservation lands would already possess the necessary permits. We are aware of cases where federally listed species have been collected from conservation lands illegally or without permits (see
Finally, we acknowledge that similarity of appearance has not been previously applied to arthropods (including insects, such as butterflies) prior to this listing, but it is a tool available to us under the Act. Similarity of appearance protections can be effective in situations where collection is a primary threat and population sizes are extremely low, as in the case of the Miami blue butterfly. We have determined that a special rule listing the additional three butterflies is necessary in this instance to protect the subspecies from collection throughout its current and historical range.
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Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the State are addressed below.
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We intend to draw upon the State's management plan for the Miami blue and all other relevant sources during recovery planning and implementation efforts. We will be soliciting input from the State and other stakeholders, who are integral in the conservation of the subspecies, during recovery planning.
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We disagree that designation of critical habitat is required or needed for successful reintroductions of the Miami blue, or that it is imperative for achieving recovery. Landowner permission is needed to reintroduce endangered species, even if unoccupied critical habitat is present. Some private property owners in the Keys have reportedly threatened to clear vegetation from undeveloped parcels to avoid restrictions regarding the butterfly (M. Minno,
Finally, with regard to the recommendation to include targeted high-quality reintroduction sites as critical habitat, there is currently no accepted, established list of high-quality reintroduction sites, as implied.
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Another commenter acknowledged the value of designating critical habitat for conservation and management purposes and suggested that the limited amount of remaining vital habitat be identified for the Miami blue. He suggested that site assessments conducted during the unsuccessful reintroduction efforts could help identify this habitat. This commenter indicated that designating all undeveloped coastal areas as critical habitat is too sweeping and ignores the potential for more specific environmental requirements, which may help explain the failure of the reintroduction efforts. Additional studies to identify habitat requirements were recommended.
With regard to threats, it is not realistic to assume that critical habitat designation would remove threats such as mosquito-control pesticides, completely protect host plants, or guarantee that invasive species would be removed, as one commenter purports. Critical habitat only provides protections where there is a Federal nexus (
We disagree with the view that there are few regulatory mechanisms that will mitigate activities contributing to habitat destruction within the subspecies' historical range. Sections 7, 9, and 10 of the Act (see
Finally, we agree that additional studies to identify specific habitat requirements are needed. Such studies would be helpful to both understanding the Miami blue's specific physical and biological habitat needs and for increasing the likelihood of successful reintroductions in the future. These actions will likely be undertaken with researchers and others during recovery planning and implementation.
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One commenter, who had previously identified captive-reared BHSP specimens as
Another commenter stated that the Service does not have the necessary information to determine if
Another commenter noted that the
Another commenter indicated the differences between photographs she had taken from BHSP with those she had discovered within KWNWR. She suggested the possibility that the KWNWR colonies may more closely resemble those of Cuba and elsewhere, rather than those from mainland Florida. She noted that the range of the butterfly does not seem well documented in recent years, and that the full range outside of the known locations should be determined.
Some concerns over the taxonomy and current distribution are based on discussion of a similar looking blue butterfly recently documented in Cuba. Historically, the nickerbean blue,
We acknowledge the concerns raised by some commenters regarding taxonomy, but we do not have any scientific evidence to suggest that
It is unlikely that
The concern that captive Miami blue larvae may not have readily accepted balloonvine as the basis of historical and contemporary populations being different entities seems unfounded. Captive individuals and artificial conditions may produce responses that are different than those occurring in the wild. Available scientific literature documents a variety of host plants for the Miami blue (see
Based on the best scientific information, including recent genetic work, we find that
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We agree that there is an urgent need to better understand the extent of threat to the Miami blue and its host plants posed by iguanas at KWNWR and elsewhere. Efforts to better understand this threat and control or contain iguanas in select areas of Miami blue habitat are continuing. The State and other partners have been actively working to reduce the presence and impact of iguanas at BHSP. Efforts by FWC and the FDEP appear to have helped control impacts to host plants at BHSP.
Iguanas are well-established throughout the islands of KWNWR. While efforts have been made to assess this potential threat at the Refuge, we acknowledge the difficulties with controlling iguanas and likelihood that broad eradication efforts will be unsuccessful. In the short term, extensive iguana eradication or containment efforts may need to be focused in select occupied areas, future reintroduction sites, or other areas with greatest habitat potential, where damage to host plant is evident. Given the current distribution of iguanas in the Keys, any island has the potential to be quickly colonized or recolonized by iguanas, despite substantial control and containment efforts.
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Forys
We are not aware of any studies that have been conducted to specifically examine the role of exotic ants on the natural history of the Miami blue. Therefore, while we agree that exotic ants, as well as other invasive species, have likely played a role in the decline of the Miami blue, to date, no field studies have identified exotic ants as specific predators of this subspecies.
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We agree with the commenter's view that funding can be inconsistent. In general, Federal funding is limited. However, Federal listing increases potential funding opportunities and funding sources.
We disagree with the commenter's assertion that State and Federal agencies have not worked cooperatively in recent times. Agencies regularly coordinate on Miami blue butterfly issues, needs, and actions. For example, State agencies have provided vessel transportation for researchers and staff conducting federally funded surveys in remote areas. Federal agencies have supported previous captive propagation efforts and more recently assisted in the formation of a State management plan.
While we agree that Atala hairstreak releases throughout Florida demonstrate how volunteer organizations can galvanize to work locally towards conservation, we question its applicability to the Miami blue situation. It is our understanding that Atala hairstreaks were reintroduced to numerous areas, including locations where they had not historically occurred. Any reintroduction efforts for the Miami blue would focus on the most suitable habitat within its historical range, with the cooperation of landowners.
There have been several successful reintroductions for endangered blue butterflies elsewhere in the United States, such as the Karner (
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Another commenter cited two studies (Davis and Peterson 2008, Breidenbach and Szalay 2010) that demonstrated few deleterious effects on insect communities following mosquito control chemical application.
With regard to deleterious effects of pesticides, we agree with the other commenter's assertion that the two studies cited did not show dramatic effects on insect communities following mosquito control activities. There were exceptions in both studies where insect numbers declined following treatment events (Davis and Peterson 2008, pp. 274–276; Breidenbach and Szalay 2010, pp. 594–595). It also did not appear that any butterfly families were included in the study, thus making it difficult to draw any conclusions about mosquito control effects on butterflies.
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After consideration of the comments received during the public comment period (see above), we made changes to the final listing rule. Many small, nonsubstantive changes and corrections, not affecting the determination (
These include the following:
(1) We reduced prohibitions for the similarity of appearance butterflies to include collection only. We have removed prohibitions regarding possession and trade for the similarity of appearance butterflies.
(2) We limited the collection prohibition for the similarity of appearance butterflies to only portions
(3) We modified the special rule under section 4(d) for the similarity of appearance butterflies to specify that prohibitions apply only to the act of collecting them in coastal south and central Florida within the historical range of the Miami blue butterfly.
(4) We modified our similarity of appearance determination to reflect the changes outlined above (see
(5) We modified our discussion regarding the effects of the rule to reflect the changes outlined above (see
See
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may determine a species to be endangered or threatened due to one or more of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below.
The Miami blue has experienced substantial destruction, modification, and curtailment of its habitat and range (see Background, above), with an estimated >99 percent decline in area occupied (FWC 2010, p. 11). Although many factors likely contributed to its decline, some of which may have operated synergistically, habitat loss, degradation, and fragmentation are undoubtedly major forces that contribute to its imperilment (Calhoun
The geographic range of this butterfly once extended from the Dry Tortugas north along the Florida coasts to about St. Petersburg and Daytona. It was most common on the southern mainland and the Keys, and more localized on the Gulf coast. Examination of museum collections indicated that specimens were common from the early 1900s to the 1980s; the butterfly was widely distributed, existing in a variety of locations in southern Florida for decades (Saarinen 2009, p. 46). However, through time, much of this subspecies' native habitat has been lost, degraded, or fragmented, especially on the mainland, largely from development and urban growth (Lenczewski 1980, p. 47; Minno and Emmel 1994, pp. 647–648; Calhoun
On the east coast of Florida, the entire coastline in Palm Beach, Broward, and Miami-Dade Counties (as far south as Miami Beach) is densely urban, with only small remnants of native coastal vegetation conserved in fragmented natural areas. Most of the Gulf Coast barrier islands that previously supported the Miami blue, including Marco and Chokoloskee Islands, have experienced intense development pressure and undergone subsequent habitat loss (Calhoun
Significant land use changes have occurred through time in south Florida. Considering political and economic structure and changes, Solecki (2001, pp. 339–356) divided Florida's land-use history into three broad eras: frontier era (1870–1930), development era (1931–1970), and globalization era (1971–present). Within the development era, Solecki (2001, p. 350) noted that: “Tremendous change took place from the early 1950s to the early and mid-1970s. Between 1953 and 1973, nearly 5,800 km
Saarinen (2009, pp. 42, 46) examined museum collections in the context of Solecki's development eras and found that Miami blue records for Miami-Dade County were highest in the 1930s and 1940s, prior to massive land use changes and urbanization. Records from Monroe County (including the Keys) were most numerous in the 1970s (Saarinen 2009, p. 46). Calhoun (pers. comm. 2003b) suggested the butterfly reached peak abundance when balloonvine invaded clearings associated with the construction boom of the 1970s and 1980s in the northern Keys and southern mainland and became available as a suitable host plant. If so, this may have represented a change in primary host plant at a time when the subspecies was beginning to decline due to continued development and destruction of coastal habitat. Saarinen (2009, p. 46) could not correlate decreases in natural land areas with changes in the numbers collected (or abundance), due to several confounding factors (
Habitat loss and human population growth in coastal areas on the mainland and the Keys is continuing. The human population in south Florida has increased from less than 20,000 people in 1920 to more than 4.6 million by 1990 (Solecki 2001, p. 345). Monroe County and Miami-Dade County, two areas where the Miami blue was historically abundant, increased from less than 30,000 and 500,000 people in 1950, respectively, to more than 73,000 and 2.5 million in 2009 (
Although extensive loss and fragmentation of habitat has occurred, significant areas of suitable larval host plants still remain on private and public lands. Results from surveys (2002–2003) within south Florida and the Keys showed that numerous areas still contained host plants (Emmel and Daniels 2004, pp. 3–6). Results from similar surveys in 2007–2009 suggested that 14 of 16 sites on the mainland and 20 of 22 in the Keys contained suitable habitat (Emmel and Daniels 2009, pp. 6–8). Other researchers noted that larval host plants are common in the Keys (Carroll and Loye 2006, p. 24; Minno and Minno 2009, p. 9). A search of IRC's database suggests that 79 conservation areas in south Florida contain
Acute habitat fragmentation appears to have severely diminished the Miami blue's ability to repopulate formerly inhabited sites or to successfully locate host plants in new areas (Calhoun
Land management practices that remove larval host plants and nectar sources can be a threat to the Miami blue. Some actions on public conservation lands may have negatively affected occupied habitat, but the extent of this impact is not known. For example, the Miami blue had been sighted in DJSP in 1996, but following removal of balloonvine as part of routine land management, no adults were observed (L. Cooper, pers. comm. 2002; J. Calhoun, pers. comm. 2003b; M. Salvato, pers. comm. 2003). In 2001, following the return of balloonvine, a single adult was observed (J. Calhoun, pers. comm. 2003b). Calhoun noted that the silver-banded hairstreak (
Removal of nickerbean as part of trail maintenance and impacts to a tree resulting from placement of a facility may have impacted the south colony at BHSP in 2002 (J. Daniels, pers. comm. 2002; P. Halupa, pers. obs. 2002). The tree was an apparent assembly area for display by butterflies during courtship (J. Daniels, pers. comm. 2002). Damage to host plant and nectar sources from trimming and mowing during the dry season and herbivory by iguanas (see Factor E) impacted habitat conditions at BHSP in 2010 (D. Olle, NABA, pers. comm. 2010). More recently, the FDEP has worked to improve habitat conditions at BHSP through plantings, modification of its mowing practices, removal of iguanas, protection of sensitive areas, and other actions (R. Zambrano, FWC, pers. comm. 2010; D. Cook, pers. comm. 2010a, 2010b; Janice Duquesnel, Florida Park Service [FPS], pers. comm. 2010a, 2010b; Jim Duquesnel, pers. comm. 2010, 2011b; E. Kiefer, pers. comm. 2011a).
Maintenance, including pruning of host vegetation along trails and roadsides, use of herbicides, and impacts from other projects could lead to direct mortality in occupied habitats (Emmel and Daniels 2004, p. 14). Habitat previously supporting immature stages of the butterfly on West Summerland Key is subject to periodic mowing for road maintenance by the Florida Department of Transportation (J. Daniels, pers. comm. 2003c); the butterfly no longer occurs at this location (Emmel and Daniels 2004, p. 3; 2009, p. 8). Since Miami blues appear sedentary with limited dispersal capabilities, alteration of even small habitat patches may be deleterious.
Removal of host plants from conservation lands does not appear to be occurring on any large scale at this time. IRC has conducted extensive plant inventories on conservation lands within south Florida and is not aware of any attempts to eradicate balloonvine and noted that gray nickerbean has only rarely been controlled (
Lack of prescribed fire on public lands may have adversely affected the Miami blue through time, but impacts are unclear. In addition to being found within coastal areas and hardwood hammocks, the Miami blue was also reported within tropical pinelands, a fire-dependent habitat (Minno and Emmel 1993, p. 134; Calhoun
As part of its listing process, the FWC has completed a biological status review and management plan for the subspecies (FWC 2003, pp. 1–26). This management plan was recently revised (FWC 2010, pp. ii–39). Although the management plan is a fundamental step in outlining conservation needs, it may be insufficient for achieving conservation goals and long-term persistence. Recommended conservation strategies and actions within the plan are voluntary and dependent upon adequate funding, staffing, and the cooperation and participation of multiple agencies and private entities, which may or may not be available or able to assist. Conservation strategies include suggested actions to maintain, protect, and monitor known metapopulations; establish new metapopulations; and conduct additional research to support conservation (FWC 2010, pp. 17–26).
In summary, a variety of land management practices on public lands (
Our analyses under the Act include consideration of ongoing and projected
Climatic changes, including sea level rise, are major threats to south Florida, including the Miami blue and its habitat. In general, the IPCC reported that the warming of the world's climate system is unequivocal based on documented increases in global average air and ocean temperatures, unprecedented melting of snow and ice, and rising average sea level (IPCC 2007, p. 2; 2008, p. 15). On a global scale, sea level rise results from the thermal expansion of warming ocean water, water input to oceans from the melting of ice sheets, glaciers, and ice caps, and the addition of water from terrestrial systems (United Nations (UN) 2009, p. 26). Sea level rise is the largest climate-driven challenge to low-lying coastal areas and refuges in the subtropical ecoregion of southern Florida (U.S. Climate Change Science Program [CCSP] 2008, pp. 5–31, 5–32). The long-term record at Key West shows that sea level rose on average 0.088 inches (0.224 cm) annually between 1913 and 2006 (National Oceanographic and Atmospheric Administration [NOAA] 2008, p. 1). This equates to approximately 8.76 inches (22.3 cm) in 100 years (NOAA 2008, p. 1).
In a technical paper following its 2007 report, the IPCC (2008, p. 28) emphasized it is very likely that the average rate of sea level rise during the 21st century will exceed that from 1961 to 2003, although it was projected to have substantial geographical variability. Partial loss of the Greenland and Antarctic ice sheets could result in many feet (several meters) of sea level rise, major changes in coastlines, and inundation of low-lying areas (IPCC 2008, pp. 28–29). Low-lying islands and river deltas will incur the largest impacts (IPCC 2008, pp. 28–29). According to CCSP (2008, p. 5–31), much of low-lying, coastal south Florida “will be underwater or inundated with salt water in the coming century.” This means that most occupied, suitable, and potential habitat for Miami blue will likely be either submerged or affected by increased flooding.
The 2007 IPCC report found a 90 percent probability of an additional 7 to 23 inches (18–58 cm) and possibly as high as many feet (several meters) of sea level rise by 2100 in the Keys. This would cause major changes to coastlines and inundation of low-lying areas like the Keys (IPCC 2008, pp. 28–29). The IPCC (2008, pp. 3, 103) concluded that climate change is likely to increase the occurrence of saltwater intrusion as sea level rises. Since the 1930s, increased salinity of coastal waters contributed to the decline of cabbage palm forests in southwest Florida (Williams
Hydrology has a strong influence on plant distribution in these and other coastal areas (IPCC 2008, p. 57). Such communities typically grade from salt to brackish to freshwater species. In the Keys, elevational differences between such communities are very slight (Ross
The Nature Conservancy (TNC) (2010, pp. 1–4) used Light Detection and Ranging (LIDAR) remote sensing technology to derive digital elevation models and project future shorelines and distribution of habitat types for Big Pine Key based on sea level rise projections by 2100, ranging from the best case to worst case scenarios described by current scientific literature. In the Keys, models projected that sea level rise will first result in the conversion of habitat and eventually the complete inundation of habitat. In the best case scenario, a rise of 7 inches (18 cm) would result in the inundation of 1,840 ac (745 ha) (34 percent) of Big Pine Key and the loss of 11 percent of the island's upland habitat (TNC 2010, p. 1). In the worst case scenario, a rise of 4.6 feet (140 cm) would result in the inundation of about 5,950 ac (2,409 ha) (96 percent) and the loss of all upland habitat (TNC 2010, p. 1). If modeling is accurate, under the worst case scenario, even upland habitat on Big Pine Key will become submerged, thereby making the butterfly's potential recolonization or survival at this and other low-lying locations in the Keys very unlikely.
Similarly, using a spatially explicit model for the Keys, Ross
Scientific evidence that has emerged since the publication of the IPCC Report (2007) indicates an acceleration in global climate change. Important aspects of climate change seem to have been underestimated previously, and the resulting impacts are being felt sooner. For example, early signs of change suggest that the 1 °C of global warming the world has experienced to date may have already triggered the first tipping point of the Earth's climate system—the disappearance of summer Arctic sea ice. This process could lead to rapid and abrupt climate change, rather than the gradual changes that were forecasted. Other processes to be affected by projected warming include temperatures, rainfall (amount, seasonal timing, and distribution), and storms (frequency and intensity) (see Factor E). The MIT scenarios combine various levels of sea level rise, temperature change, and precipitation differences with population, policy assumptions, and conservation funding changes. All of the scenarios, from small climate change shifts to major changes, will have significant effects on the Keys.
Several recent scientific publications have also addressed problems that the IPCC's approach had in accounting for the observed level of sea level rise in the late 20th and early 21st centuries, and yielded new projections which reflect the possibility of rapid contributions from ice sheet dynamics beyond surface melting (see summaries by Church
Rising sea level is an acute threat to all sites known to currently support the Miami blue (Cannon
We have identified a number of threats to the habitat of the Miami blue which have operated in the past, are impacting the subspecies now, and will continue to impact the subspecies in the future. The decline of butterflies in south Florida is primarily the result of the long-lasting effects of habitat loss, degradation, and modification from human population growth and associated development and agriculture. Environmental effects resulting from climatic change, including sea level rise, are expected to become severe in the future and result in additional habitat losses. Although efforts have been made to restore habitat in some areas, the long-term effects of large-scale and wide-ranging habitat modification, destruction, and curtailment will last into the future. Therefore, based on our analysis of the best available information, present and future loss and modification of the subspecies' habitat is a significant threat to the subspecies throughout all of its range.
Rare butterflies and moths are highly prized by collectors, and an international trade exists in specimens for both live and decorative markets, as well as the specialist trade that supplies hobbyists, collectors, and researchers (Collins and Morris 1985, pp. 155–179; Morris
Several listings of butterflies as endangered or threatened species under the Act have been based, at least partially, on intense collection pressure. Notably, the Saint Francis' satyr (
Collection was cited as a threat to the Miami blue in both the original and subsequent petitions for emergency listing. The State's management plan for the Miami blue acknowledges that butterfly collecting may stress small, localized populations and lead to the loss of individuals and genetic variability, but also indicates that there is no evidence or information on current or past collection pressure on the Miami blue (FWC 2010, p. 13). Butterflies in small populations are vulnerable to harm from collection (Gall 1984, p. 133). A population may be reduced to below sustainable numbers (Allee effect) by removal of females, reducing the probability that new colonies will be founded. Collectors can pose threats to butterflies because they may be unable to recognize when they are depleting colonies below the thresholds of survival or recovery (Collins and Morris 1985, pp. 162–165). There is ample evidence of collectors impacting other imperiled and endangered butterflies (Gochfeld and Burger 1997, pp. 208–209), host plants (Cech and Tudor 2005, p. 55), and even contributing to extirpations (Duffey 1968, p. 94). For example, the federally endangered Mitchell's satyr (
Although we do not have evidence of collection of the Miami blue, we do have evidence of illegal collection of other butterflies from Federal lands in south Florida, including the endangered Schaus swallowtail. In 1993, three defendants were indicted for conspiracy to violate the wildlife laws of the United States, including the Act, the Lacey Act, and 18 U.S.C. 371 (USDC 1993, p. 1). Violations involved numerous listed, imperiled, and common species from many locales; defendants later pled guilty to the felonies (Service 1995, p. 1). As part of the evidence cited in the case, defendants exchanged butterflies
Illegal collection of butterflies on State, Federal, and other lands in Florida appears ongoing, prevalent, and damaging. As part of the aforementioned case, one defendant, who admitted getting caught collecting within ENP and Loxahatchee National Wildlife Refuge, stated that he “got away with it each time, simply claiming ignorance of the laws * * *.” (USDC 1993, p. 13). Another defendant detailed his poaching in Florida and acquisition of federally endangered butterflies, acknowledging that he had “fared very well, going specifically after rare stuff” (USDC 1993, pp. 28–29). The same defendant offered to traffic atala hairstreaks
Additionally, we are aware of and have documented evidence of interest in the collection of other imperiled butterflies in south Florida. In the aforementioned indictment, one defendant noted that there was a “huge demand for Florida stuff,” that he knew “exactly where all the rare stuff is found,” that he “can readily get material,” and that in most cases he would “have to poach the material from protected parks” (USDC 1993, p. 44). More recently, one commenter stated that she has been contacted by someone interested in acquiring rare butterflies (see Comment #5 and Response above). In addition, Salvato (pers. comm. 2011e) has also been contacted by several individuals requesting specimens of two Federal candidates, the Florida leafwing and Bartram's hairstreak, or seeking information regarding locations where they may be collected in the field. In addition, interest in the collection of the Florida leafwing was posted by two parties on at least one Web site in 2010 along with advice on where and how to bait trap, despite the fact that this butterfly mainly occurs on Federal lands within ENP. Thus, there is established and ongoing collection pressure for rare butterflies, including two other highly imperiled candidate species in south Florida.
We are also aware of multiple Web sites that offer or had offered specimens of south Florida butterflies for sale that are candidates for listing under the Act (M. Minno, pers. comm. 2009; C. Nagano, pers. comm. 2011; D. Olle, pers. comm. 2011). Until recently, one Web site offered male and female Florida leafwing specimens for €110.00 and €60.00 (euros), respectively (approximately $144 and $78). It is unclear from where the specimens originated or when these were collected, but this butterfly is now mainly restricted to ENP. The same Web site offered specimens of Bartram's hairstreak for €10.00 ($13). Although the specifics on its collection are not clear, this butterfly now mainly occurs on protected Federal, State, and County lands. The same Web site offers specimens of other butterflies similar in appearance to the Miami blue; the cassius blue is available for €4.00–10.00 ($5–$13). Additionally, other subspecies of
The potential for unauthorized or illegal collection of the Miami blue (eggs, larvae, pupae, or adults) exists, despite its State-threatened status and the protections provided on Federal (and State) land. Illegal collection could occur without detection at remote islands of KWNWR because these areas are difficult to patrol. The localized distribution and small population size render this butterfly highly vulnerable to impacts from collection. At this time, removal of any individuals may have devastating consequences to the survival of the subspecies. Although the Miami blue is no longer believed to be present at BHSP, its return is possible. At BHSP, the butterfly, like other wildlife and plant species within the Florida park system, is protected from unauthorized collection (Chapter 62 D–2.013(5)) (see Factor D). However, because BHSP is so heavily used, continual monitoring for illegal collections is a challenge. Daniels (pers. comm. 2002) believed that additional patrols would be helpful because unauthorized collection of specimens is possible, even though collection is prohibited. In addition, any colonies that might be found or become established outside of BHSP or other protected sites would also not be patrolled and would be at risk of collection.
Although the Miami blue's status as a State-threatened species provides some protection, this protection does not include provisions for other species of blues that are similar in appearance. Therefore, it is quite possible that collectors authorized to collect similar species may inadvertently (or purposefully) collect the Miami blue butterfly thinking it was, or planning to claim they thought it was, the cassius blue, nickerbean blue, or ceraunus blue, which can also occur in the same general geographical area and habitat type. Federal listing of other similar butterflies can partially reduce this threat (see
In summary, due to the few metapopulations, small population size, restricted range, and remoteness of occupied habitat, we have determined that collection is a significant threat to the subspecies and could potentially occur at any time. Even limited collection from the small population in KWNWR (or other populations, if discovered) could have deleterious effects on reproductive and genetic viability and thus could contribute to its extinction.
Some techniques (
Captive propagation and reintroduction activities may present risks if wild populations are impacted or if the species is introduced to new or inappropriate areas outside of its historical range (65 FR 56916–56922, September 20, 2000). Although butterflies were successfully reared in captivity at the UF with the support of State and Federal agencies, efforts to reintroduce the Miami blue to portions of its historical range did not result in the establishment of any new populations (Emmel and Daniels 2009, pp. 4–5; FWC 2010, p. 8). While some monitoring occurred following releases, it is not clear why captive-reared individuals did not persist in the wild. Perhaps experiments using surrogate species (
Declines in the captive colony in 2005 and 2006 were attributed to a baculovirus; consequently, this captive colony was terminated after 30 generations and another was started with new stock from BHSP (Saarinen 2009, p. 92). Baculovirus infections are capable of devastating both laboratory and wild butterfly populations (Saarinen 2009, pp. 99, 119). Irrevocable consequences may occur if a pathogen is transferred from laboratory-reared to wild populations. Genetic diversity within the captive colony was lost over time (between generations) (Saarinen 2009, p. 100). At one point, the captive colony was not infused with new genetic material for approximately 1 year due to low numbers within the wild population. As a result, decreases in genetic diversity, allelic richness, and number of individuals produced occurred during this time (Saarinen 2009, p. 100). While captive propagation and reintroduction efforts offer enormous conservation potential, there can be associated risks and ramifications to both wild and captive-reared individuals and populations.
The use of captive-reared Miami blues in pesticide-use and life-history studies can be questioned and has been criticized by some (FWC 2010, p. 10). All experiments were conducted with captive-reared individuals; no wild individuals were used. Individuals used in experiments were not intended for release back into the wild or were reared specifically for this purpose. Researchers involved with the captive colony and others conducting scientific studies or other conservation efforts were authorized by appropriate agencies to conduct such work.
Collection interest of imperiled butterflies is high, and there are ample examples of collection pressure contributing to extirpations. Although we do not have information indicating that Miami blues are being collected, we consider collection to be a significant threat to the subspecies due to the few remaining metapopulations, small population size, restricted range, and remoteness of occupied habitat, and because collection could potentially occur at any time. Even limited collection from the remaining metapopulation could have deleterious effects on reproductive and genetic viability of the subspecies and could contribute to its extinction.
Captive propagation and reintroduction may be important components of the subspecies' survival and recovery, but such actions need to be carefully planned, implemented, and monitored. Any future efforts should only be initiated after it has been determined that such actions will not harm the wild population, rigorous standards are met, and commitments are in place to increase the likelihood of success and maximize knowledge gained.
Based on our analysis of the best available information, there is no evidence to suggest that its vulnerability to collection and risks associated with scientific or conservation efforts will change in the future.
The effects of disease or predation are not well known. Because the Miami blue is known from only a few locations and population size appears low, disease and predation could pose a threat to its survival.
A baculovirus was confirmed within the captive colony, and infection caused the death of Miami blue larvae in captivity (see Factor B above) (Saarinen 2009, p. 120). Pathogens have affected other insect captive-breeding programs, however, this was the first time a baculovirus was found to affect a captive colony of an endangered Lepidopteran (Saarinen 2009, p. 120). A baculovirus or other disease or pathogens have the potential to destroy wild populations (Saarinen 2009, p. 99). Nice
Predation of adults or immature stages was not observed during monitoring at BHSP, despite the presence of potential predators (Emmel and Daniels 2004, p. 12; Trager 2009, p. 152). Several species of social wasps, specifically paper wasps (
Cannon
The extent to which native or exotic ants and other predators and parasitoids may pose a threat to the Miami blue is not clear, but deserves further attention. For example, invasive fire ants (
Both the red imported fire ant and the little fire ant (
In a greenhouse situation, Trager (2009, p. 151) observed fire ants removing Miami blue eggs in an indoor flight cage, but noted that the ants did not attack larvae on the same plant. In his studies, a captive colony of fire ants was found to consume captive-reared Miami blue pupae in food trays; however, the ants did not remove newly laid eggs from the host plant and even exhibited weak tending behavior toward larvae (Trager 2009, pp. 151–152). At this time, it is unclear to what extent native and exotic predatory insects may be impacting wild Miami blue populations.
Some ant species may also protect Miami blue larvae against parasitoids and predators; however, this has not yet been observed in the wild (Trager and Daniels 2009, 479; Trager 2009, p. 101). In laboratory studies,
Researchers have suggested that some ant species may depredate Miami blue larvae or may opportunistically tend larvae without providing protection against predators or other benefits (Saarinen and Daniels 2006, p. 73; Saarinen 2009, pp. 134, 138). However, Trager and Daniels (2009, pp. 478–481) recorded a universal tending response among ants consistent with a mutualistic interaction through both field observations and laboratory trials. They did not observe any depredation of larvae by ants in the field and, based upon observations, doubted that many ant species regularly depredate larvae (Trager and Daniels 2009, pp. 479–481; Trager 2009, p. 149).
Studies suggest that various stressors (
Despite the fact that they contain several protections for the Miami blue, Federal, State, and local laws have not been sufficient to prevent past and ongoing impacts to the Miami blue and its habitat within its current and historical range.
In response to a petition from the NABA in 2002, the FWC emergency-listed the Miami blue butterfly in 2002, temporarily protecting the butterfly. On November 19, 2003, the FWC declared the Miami blue butterfly endangered (68A–27.003), making its protection permanent. On November 8, 2010, the FWC adopted a revised listing classification system, moving from a multi-tiered to single-category system. As a consequence of this change, the Miami blue butterfly (along with other species) became State-threatened; its original protective measures remained in place (68A–27.003, amended). This designation prohibits any person from taking, harming, harassing, possessing, selling, or transporting any Miami blue or parts thereof or eggs, larvae or pupae, except as authorized by permit from the executive director, with permits issued based upon whether issuance would further management plan goals and objectives. Although these provisions prohibit take of individuals, there is a general lack of law enforcement presence in many areas. In addition, existing regulations prohibit take, but do not provide substantive protection of Miami blue habitat or protection of potentially suitable habitat. Therefore, while the Miami blue butterfly is afforded some protection by its presence
The Miami blue's presence on Federal (and State) lands offers some insulation against collection, but protection is somewhat limited (see Factor B). Permits are necessary for authorized collection, but law enforcement presence on Federal and State land is often inadequate. In addition, many areas are difficult to patrol and the State's protection of the Miami blue does not extend to butterflies that are similar in appearance (see
As a Federal candidate subspecies, the Miami blue was afforded some protection through sections 7 and 10 of the Act and associated policies and guidelines, but protection was limited. Federal action agencies are to consider the potential effects to the butterfly and its habitat during the consultation process. Applicants and action agencies are encouraged to consider candidate species when seeking incidental take for other listed species and when developing habitat conservation plans. On Federal lands, such as KWNWR, candidate species are treated as “proposed threatened.”
Although the Miami blue occurs on Federal (and possibly State) land that offers protection, these areas are vast and often heavily used. Signage prohibiting collection is sometimes lacking or may not be advisable as it could draw attention to the presence of the subspecies; patrolling and monitoring of activities can be limited and dependent upon the availability of staffing and resources. Within KWNWR, the Marquesas Keys are open to the public; portions of the beach on Boca Grande are closed (T. Wilmers, pers. comm. 2011b). In general, occupied islands are remote and difficult to patrol, and trespassing and unauthorized uses (
Prior to its apparent extirpation, the metapopulation at BHSP was afforded some protection by its presence on State lands. All property and resources owned by FDEP are generally protected from harm in Chapter 62D–2.013(2), and animals are specifically protected from unauthorized collection in Chapter 62D–2.013(5) of the Florida Statutes. Exceptions are made for collecting permits, which are issued, “for scientific or educational purposes.” Still, protection of resources at BHSP is a challenge due to the park's popularity and high use (See Factor E). Although in 2010, the FDEP hired a temporary, full-time biologist to work on Miami blue conservation issues at BHSP, including patrol of sensitive habitats, this position has since been reduced to part-time.
Permits are required from the FWC for scientific research on and collection of the Miami blue. For work on Federal lands (
Despite existing regulatory mechanisms, the Miami blue continues to decline due to the effects of a wide array of threats (see Factors A, B, and E). Based on our analysis of the best available information, we find that existing regulatory measures, due to a variety of constraints, do not work as designed, and, therefore, the existing regulatory mechanisms are inadequate to address threats to the subspecies throughout all of its range. We have no information to indicate that the aforementioned regulations, which currently do not offer adequate protection to the Miami blue, will be revised such that they would be adequate to provide protection for the subspecies in the future.
The exotic green iguana (
In addition to damage, iguanas likely consume eggs and pupae when opportunistically feeding (P. Hughes, pers. comm. 2009; Daniels 2009, p. 5; FWC 2010, p. 13), especially since the butterfly uses the same terminal growth of host plants to lay eggs. For many years, host plant abundance within BHSP appeared capable of sustaining both iguanas and Miami blues. Depressed numbers of Miami blues in 2008, however, were likely the result of both a severe drought and impacts to the nickerbean from iguanas feeding on the terminal nickerbean growth (FWC 2010, p. 6). During the winter of 2010, prolonged and unseasonably cold temperatures in the lower Keys resulted in a considerable decline in available nickerbean at BHSP (Olle 2010, p. 14). The suppressed Miami blue population at this site during this time may not have been able to survive this temporary, but severe, reduction in nickerbean, likely caused by the combined influences of iguanas and environmental factors (
Iguana tracks have been found on islands occupied by the Miami blue in KWNWR (Cannon
Resource agencies are working to better understand and combat the threat of green iguanas in areas occupied (and
Host resource competition from other butterfly species could deleteriously impact metapopulation productivity of the Miami blue. The introduction of or future island colonization by potential Lepidopteran competitors may impact the Miami blue metapopulation. The nickerbean blue, cassius blue, and Martial's scrub hairstreak are known to use various species of nickerbean host plants throughout their range (Glassberg
Inadvertent damage from humans can affect the Miami blue and its habitat in its current and former range. For example, the seed pods of balloonvine “pop” when squeezed and can be targeted by humans. Damage to balloonvine has been documented along roads in the Keys (J. Loye, University of California-Davis, pers. comm. 2003a, 2003b). During a study in the mid-1980s examining balloonvine and its associated insect community, Loye (pers. comm. 2003a) found a difference in insect diversity between sites along roads and those without road access. Acknowledging other possible contributing factors (
BHSP is heavily used by the public for recreational purposes, and although the butterfly has not been seen at this location since early 2010, suitable habitat is located along trails and other high-use areas (
KWNWR lacks human developments, but local disturbances result from illicit camping, fire pits, smugglers, vandals, and immigrant landings. These disturbances are generally infrequent for most islands within KWNWR with the exception of Boca Grande, which contains the largest amounts of beach. Recreational visitation is high on Boca Grande, particularly during weekends (Cannon
Other patches of potential and suitable habitat are susceptible to purposeful impacts from humans. Some private property owners in the Keys have reportedly threatened to clear vegetation from undeveloped properties to avoid any restrictions regarding the butterfly (M. Minno,
In summary, inadvertent and purposeful impacts from humans may have affected the Miami blue and its habitat. Due to the location of occupied and suitable habitat, the popularity of these areas with humans, and the projected human growth, especially in coastal areas, such impacts from recreation and other uses are expected to continue.
Natural changes to vegetation from environmental factors, succession, or other causes may now be a threat to the Miami blue because of its severely reduced range, few populations, and limited dispersal capabilities. Suitable and occupied habitat in KWNWR and other coastal areas is dynamic and fluctuating, influenced by a variety of environmental factors (
Displacement of native plants including host plants by invasive exotic species, a common problem throughout south Florida, also possibly contributed to habitat loss of the Miami blue. In coastal areas where undeveloped land remains, the Miami blue's larval food plants are likely to be displaced by invasive exotic plants, such as Brazilian pepper, Australian pine (
Efforts to control salt marsh mosquitoes,
The potential for mosquito control chemicals to drift into nontarget areas and persist for varying periods of time has been well documented. Hennessey and Habeck (1989, pp. 1–22; 1991, pp. 1–68) and Hennessey
More recently, Pierce (2009, pp. 1–17) monitored naled and permethrin deposition following application in and around NKDR from 2007 to 2009. Permethrin, applied by truck, was found to drift considerable distances from target areas with residues that persisted for weeks. Naled, applied by plane, was also found to drift into nontarget areas but was much less persistent, exhibiting a half-life of approximately 6 hours. To expand this work, Pierce (2011, pp. 6–11) conducted an additional deposition study in 2010 focusing on permethrin drift from truck spraying and again documented measurable amounts of permethrin in nontarget areas. In 2009, Tim Bargar (pers. comm. 2011) conducted two field trials on NKDR that detected significant naled residues at locations within nontarget areas on the Refuge that were up to 440 yards (402 meters) from the edge of zones targeted for aerial applications.
In addition to mosquito control chemicals entering nontarget areas, the toxic effects of mosquito control chemicals to nontarget organisms have also been documented. Lethal effects on nontarget Lepidoptera have been attributed to fenthion and naled in both south Florida and the Keys (Emmel 1991, pp. 12–13; Eliazar and Emmel 1991, pp. 18–19; Eliazar 1992, pp. 29–30). In the lower Keys, Salvato (2001, pp. 8–14) suggested that declines in populations of the Florida leafwing (now a Federal candidate) were also partly attributable to mosquito control chemical applications. Salvato (2001, p. 14; 2002, pp. 56–57) found populations of the Florida leafwing (on Big Pine Key within NKDR) to increase during drier years when adulticide applications over the pinelands decreased, although Bartram's hairstreak did not follow this pattern. It is important to note that vulnerability to chemical exposure may vary widely between species, and current application regimes do not appear to affect some species as strongly as others (Calhoun
Dose-dependent decreases in brain cholinesterase activity in great southern white butterflies
In a laboratory study, Rand and Hoang (2010, pp. 1–33) and Hoang
The laboratory toxicity data generated by this study were used to calculate hazard quotients (concentrations in the environment/concentrations causing an
In a recent study, Bargar (2012, pp. 1–7) conducted a probabilistic risk assessment for adult butterflies using published acute toxicity data in combination with deposition values for naled that were quantified at eight locations within NKDR. The published toxicity data were used in conjunction with morphometric data (total surface area and weight) for 22 butterfly species and the NKDR naled deposition values to estimate the probability that field exposure to naled will exceed butterfly effect estimates (quantity of naled per unit body weight associated with mortality in adult butterflies). From the field deposition measurements, the probability that the effect estimate for 50 percent of the examined butterfly species will be exceeded ranged from 70 (lowest butterfly surface area to weight ratio) to 95 percent (highest surface area to weight ratio) based on filter paper deposition results and 33 to 87 percent based on yarn sampler results. As the surface area to weight ratio increases, the probability that a greater quantity of naled per unit body weight will be delivered increases. These results suggest that significant impacts on butterfly survival may result from aerial naled application.
From 2006 to 2008, Zhong
Based on these studies, it can be concluded that mosquito control activities that involve the use of both aerial and ground-based spraying methods have the potential to deliver pesticides in quantities sufficient to cause adverse effects to nontarget species in both target and nontarget areas. It should be noted that many of the studies referenced above dealt with single application scenarios and examined effects on only one to two butterfly life stages. Under a realistic scenario, the potential exists for exposure to all life stages to occur over multiple applications in a season. In the case of a persistent compound like permethrin where residues remain on vegetation for weeks, the potential exists for nontarget species to be exposed to multiple pesticides within a season (
Aspects of the Miami blue's natural history may increase its potential to be exposed to and affected by mosquito control pesticides and other chemicals. For example, host plants and nectar sources are commonly found at disturbed sites and often occur along roads in developed areas, where chemicals are applied. Ants associated with the Miami blue (see Interspecific relationships) may be affected in unknown ways. Host plant and nectar source availability may also be indirectly affected through impacts on pollinators. Carroll and Loye (2006, pp. 19, 24) and others (Emmel 1991, p. 13; Glassberg and Salvato 2000, p. 7; Calhoun
No mosquito control pesticides are used within KWNWR. At BHSP, the only application of adulticides (permethrin) is occasional truck-based spraying in the ranger residence areas (E. Kiefer, pers. comm. 2011a). Mosquito control practices currently pose no risk to the Miami blue within KWNWR. However, mosquito control activities, including the use of larvicides and adulticides, are being implemented within suitable and potential habitat for the Miami blue elsewhere in its range (Carroll and Loye 2006, pp. 14–15). The findings of Zhong
Efforts are already underway by multiple agencies and partners to seek ways to avoid and minimize impacts to the Miami blue and other imperiled nontarget species. For example, in an effort to reduce the need for aerial adulticide spraying, the FKMCD is increasing larviciding activities, which are believed to have less of an ecological impact on wilderness islands near NKDR and GWHNWR (FKMCD 2009, pp. 3–4). This effort has led to a reduction in area receiving adulticide treatment on Big Pine Key, No Name Key, and Torch Key (FKMCD 2009, p. 17). Another example is the Florida Coordinating Council on Mosquito Control (FCCMC), including the Imperiled Species Subcommittee, which was initially formed to resolve the conflict between mosquito control spraying and the reintroduction of Miami blues to their historical range (FWC 2010, p. 9).
The FWC's management plan for the Miami blue also recommended the use
In summary, although substantial progress has been made in reducing impacts, the potential effects of mosquito control applications and drift residues remain a threat to the Miami blue. We will continue to work with the mosquito control districts and other partners and stakeholders to reduce threats wherever possible.
The Miami blue is vulnerable to extinction due to its severely reduced range, small population size, metapopulation structure, few remaining populations, and relative isolation. In general, isolation, whether caused by geographic distance, ecological factors, or reproductive strategy, will likely prevent the influx of new genetic material and can result in low diversity, which may impact viability and fecundity (Chesser 1983, pp. 66–77). Extinction risk can increase significantly with decreasing heterozygosity as was reported for the Glanville fritillary (Saccheri
Estimated abundance of the Miami blue is not known, but may number in the hundreds, and at times, possibly higher. Although highly dependent on individual species considered, a population of 1,000 has been suggested as marginally viable for an insect (D. Schweitzer, TNC, pers. comm. 2003). Schweitzer (pers. comm. 2003) has also suggested that butterfly populations of less than 200 adults per generation would have difficulty surviving over the long term. In comparison, in a review of 27 recovery plans for listed insect species, Schultz and Hammond (2003, p. 1377) found that 25 plans broadly specified metapopulation features in terms of requiring that recovery include multiple population areas (the average number of sites required was 8.2). The three plans that quantified minimum population sizes as part of their recovery criteria for butterflies ranged from 200 adults per site (Oregon silverspot [
Schultz and Hammond (2003, pp. 1372–1385) used population viability analyses to develop quantitative recovery criteria for insects whose population sizes can be estimated and applied this framework in the context of the Fender's blue (
Losses in diversity within historical and current populations of the Miami blue butterfly have already occurred. Historical populations were genetically more diverse than two contemporary populations (BHSP and KWNWR) (Saarinen 2009, p. 48). Yet together, between the two contemporary populations, the Miami blue had retained a significant amount of genetic diversity from its historical values (Saarinen 2009, p. 51). Despite likely fluctuations in population size, the BHSP population had retained an adequate amount of genetic diversity to maintain the population (Saarinen 2009, p. 77). Overall, patterns of genetic diversity in the BHSP population (mean overall observed heterozygosity of 39.5 percent) were similar to or slightly lower than other nonmigratory butterfly species studies utilizing microsatellite markers (Saarinen 2009, pp. 50, 74–75). Unfortunately, the BHSP population may now be lost. The extant KWNWR population is more genetically diverse (mean observed heterozygosity of 51 percent vs. 39.5 percent for BHSP) (Saarinen 2009, p. 75).
The Miami blue appears to have been impacted by relative isolation. No gene flow has occurred between contemporary populations (Saarinen
According to Saarinen
Aspects of the Miami blue's natural history may increase the likelihood of extinction. Cushman and Murphy (1993, p. 40) argued that dispersal is essential for the persistence of isolated populations. Input of individuals from neighboring areas can bolster dwindling numbers and provide an influx of genetic diversity, increasing fitness and population viability. The tendency for
Lycaenids with a strong dependence on ants may be more sensitive to environmental changes and, thus, more prone to endangerment and extinction than species not tended by ants (and non-lycaenids in general) (Cushman and Murphy 1993, pp. 37, 41). This hypothesis is based on the probability that the combination of both the right food plant and the presence of a particular ant species may occur relatively infrequently in the landscape. Selection may favor reduced dispersal by ant-associated lycaenids due to the difficulty associated with locating patches that contain the appropriate combination of food plants and ants (Cushman and Murphy 1993, pp. 39–40). Although significant research on the relationship between Miami blue larvae and ants has been conducted, this association is still not completely understood. Lycaenid traits (sedentary, host-specific, symbiotic with ants) that result in isolated populations of variable sizes may serve to limit genetic exchange (Cushman and Murphy 1993, pp. 37, 39–40). The Miami blue possesses several of these traits, all of which may increase susceptibility and contribute to imperilment.
The climate of the Keys is driven by a combination of local, regional, and global events, regimes, and oscillations. There are three main “seasons”: (1) The wet season, which is hot, rainy, and humid from June through October, (2) the official hurricane season that extends one month beyond the wet season (June 1 through November 30) with peak season being August and September, and (3) the dry season, which is drier and cooler from November through May. In the dry season, periodic surges of cool and dry continental air masses influence the weather with short-duration rain events followed by long periods of dry weather.
Environmental factors have likely impacted the Miami blue and its habitat within its historical range. A hard freeze in the late 1980s likely contributed to the Miami blue's decline (L. Koehn, pers. comm. 2002), presumably due to loss of larval host plants in south Florida. Prolonged cold temperatures in January 2010 and December 2010 through January 2011 may have also impacted the remaining metapopulations in the Keys. Unseasonably cold temperatures during winter 2010 (in combination with impacts from iguanas) resulted in a substantial loss of nickerbean and nectar sources at BHSP. This reduction, albeit temporary, may have severely impacted an already depressed Miami blue population on the island. Similarly, extended dry conditions and drought can affect the availability of host plants and nectar sources and affect butterfly populations (Emmel and Daniels 2004, pp. 13–14, 17). Depressed numbers of the Miami blue at BHSP in 2008 were attributed to severe drought (Emmel and Daniels 2009, p. 4).
The Keys are regularly threatened by tropical storms and hurricanes. No area of the Keys is more than 20 feet (6.1 meters) above sea level (and many areas are only a few feet (meters) in elevation). These tropical systems have affected the Miami blue and its habitat. Calhoun
Similarly, Hurricane Wilma heavily damaged blackbead across many islands within KWNWR (Cannon
According to the Florida Climate Center, Florida is by far the most vulnerable State in the United States to hurricanes and tropical storms (
Other processes to be affected by climate change include temperatures, rainfall (amount, seasonal timing, and distribution), and storms (frequency and intensity). Temperatures are projected to rise from 2 °C to 5 °C (3.6 °F to 9 °F) for North America by the end of this century (IPCC 2007, pp. 7–9, 13). Based upon modeling, Atlantic hurricane and tropical storm frequencies are expected to decrease (Knutson
Based on our analysis of the best available information we have identified a wide array of natural and manmade factors affecting the continued existence of the Miami blue butterfly. Effects of small population size, isolation, and loss of genetic diversity are likely significant threats. Aspects of the Miami blue's natural history and environmental stochasticity may also contribute to its imperilment. Other natural (
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Miami blue butterfly. The only confirmed metapopulation of Miami blue is currently restricted to a few, small insular areas in the extreme southern portion of its historical range. The butterfly's range, which once extended from the Keys north along the Florida coasts to about St. Petersburg and Daytona, is now substantially reduced, with an estimated >99 percent decline in area occupied. Many factors likely contributed to the Miami blue's decline, and numerous major threats, acting individually or synergistically, continue today (see
Habitat loss, degradation, and modification from human population growth and associated development and agriculture have impacted the Miami blue, curtailing its range (see Factor A). Environmental effects from climatic change, especially sea level rise, are expected to become severe in the future, resulting in additional habitat losses (see Factor A). Due to the few metapopulations, small population size, restricted range, and remoteness of occupied habitat, collection is a significant threat to the subspecies and could potentially occur at any time (see Factor B). Even limited collection from the remaining metapopulation could have deleterious effects on reproductive and genetic viability of the subspecies and could contribute to its extinction. Similarly, disease and predation (see Factor C) also have the potential to impact the Miami blue's continued survival, given its vulnerability (see Factor E).
The subspecies is currently also threatened by a wide array of natural and manmade factors (see Factor E). In addition to the effects of small population size, isolation, and loss of genetic diversity, aspects of the Miami blue's natural history and environmental stochasticity may contribute to its imperilment. Other natural (
Section 3 of the Endangered Species Act defines an endangered species as “* * * any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as “* * * any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Based on the immediate and ongoing significant threats to the Miami blue butterfly throughout its entire occupied range and the fact that the subspecies is restricted to only one or possibly two populations, we have determined that the subspecies is in danger of extinction throughout all of its range. Since threats extend throughout the entire range, it is unnecessary to determine if the Miami blue butterfly is in danger of extinction throughout a significant portion of its range. Therefore, on the basis of the best available scientific and commercial information, we have determined that the Miami blue butterfly meets the definition of an endangered species under the Act. Consequently, we are listing the Miami blue butterfly as an endangered species throughout its entire range.
The survival of the Miami blue now depends on protecting the species' occupied and suitable habitat from further degradation and fragmentation, removing and reducing controllable threats, increasing the current population in size, reducing the threats of illegal collection, retaining the remaining genetic diversity; and establishing populations at additional locations. The survey and monitoring efforts and scientific studies conducted to date, when combined with other available historical information, indicate that the Miami blue butterfly is on the brink of extinction.
By listing the Miami blue butterfly as an endangered subspecies, the protections (through sections 7, 9, and 10 of the Act) and recognition that immediately became available to the subspecies upon emergency listing will continue and increase the likelihood that it can be saved from extinction and ultimately be recovered. In addition, recovery funds may become available, which could facilitate recovery actions (
The Service acknowledges that it cannot fully address some of the natural threats facing the subspecies (
Through this action, the Miami blue will continue receiving protection from collection, possession, and trade (through sections 9 and 10 of the Act). The three butterflies that are similar in appearance to the Miami blue will receive protection from collection in portions of their ranges (
Critical habitat is defined in section 3(5)(A) of the Act as (i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, we designate critical habitat at the time we determine that a species is endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. We have determined that both circumstances apply to the Miami blue butterfly. This determination involves a weighing of the expected increase in threats associated with a critical habitat designation against the benefits gained by a critical habitat designation. An explanation of this “balancing” evaluation follows.
The principal benefit of including an area in a critical habitat designation is the requirement for Federal agencies to ensure actions they fund, authorize, or carry out are not likely to result in the destruction or adverse modification of any designated critical habitat, the regulatory standard of section 7(a)(2) of the Act under which consultation is completed. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects of a proposed project on critical habitat is separate and different from that of the effects of a proposed project on the species itself. The jeopardy analysis evaluates the action's impact to survival and recovery of the species, while the destruction or adverse modification analysis evaluates the action's effects to the designated habitat's contribution to conservation. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. This will, in some instances, lead to different results and different regulatory requirements. Thus, critical habitat designations may provide greater benefits to the recovery of a species than would listing alone.
All areas known to support the Miami blue butterfly since 1996 are or have been on Federal or State lands; these areas are currently being managed for the subspecies. Management efforts are consistent with, and geared toward, Miami blue conservation, and such efforts are expected to continue in the future. Because the butterfly exists only as one or possibly two small metapopulations, any future activity involving a Federal action that would destroy or adversely modify occupied critical habitat may also likely jeopardize the subspecies' continued existence (see
Another potential benefit to the Miami blue butterfly from designating critical habitat is that it could serve to educate landowners, State and local government agencies, Refuge or Park visitors, and the general public regarding the potential conservation value of the area. Through the processes of listing the butterfly under the State of Florida's endangered species statute in 2002, the recognition of the Miami blue as a Federal candidate subspecies in 2005, and our proposed and emergency rules for the subspecies in August 2011, much of this educational component is already in effect. Agencies, organizations, and stakeholders are actively engaged in efforts to raise awareness for the butterfly and its conservation needs. For example, the NABA has a Miami blue chapter, which helps promote awareness for the subspecies. The FWC and partners have also formed a workgroup, in part to raise awareness for imperiled butterflies in south Florida. Staff at BHSP have recruited volunteers to help search for the subspecies within the Park and surrounding areas, and they have organized speakers to inform the general public about the butterfly. In addition, designation of critical habitat could inform State agencies and local governments about areas that could be conserved under State laws or local ordinances. However, since awareness and education involving the Miami blue is already well underway, designation of critical habitat would likely provide only minimal incremental educational benefits.
Designation of critical habitat requires the publication of maps and a narrative description of specific critical habitat areas in the
Although we do not have specific evidence of taking for this subspecies, illegal collection of imperiled butterflies from State, Federal, and other lands in Florida appears ongoing, prevalent, and damaging (see Factor B analysis above). In addition, we are aware that a market
Additionally, we are aware of a market for butterflies that look similar to the Miami blue, including all three of the subspecies we are listing due to similarity of appearance (see above), as well as other
Identification and publication of critical habitat may also increase the likelihood of inadvertent or purposeful habitat destruction. Damage to host plants from humans has been documented in the past (see Factor E above). Recreation within occupied areas has resulted in trampling of vegetation and negative impacts to the subspecies and its habitat (see Factor E above). High visitation and illicit uses (
Identification and publication of critical habitat may lead to increased attention to the subspecies, or increased attempts to illegally collect it, which could also lead to an increase in enforcement problems. Although take prohibitions exist, effective enforcement is difficult. As discussed in Factors B, D, and E and elsewhere above, the threat of collection and inadvertent impacts from humans exists; areas are already difficult to patrol. Areas within the KWNWR are remote and accessible mainly by boat, making them difficult for law enforcement personnel to patrol and monitor. Designation of critical habitat would facilitate further use and misuse of sensitive habitats and resources, creating additional difficulty for law enforcement personnel in an already challenging environment.
Overall, we find that designation of critical habitat will increase the likelihood and severity of the threats of illegal collection of the subspecies and destruction of sensitive habitat. With increased attention and activities, we also anticipate that designation will contribute to, and exacerbate enforcement issues and problems.
Upon reviewing the available information, we have determined that the designation of critical habitat would subject the subspecies to increased threats, while conferring little additional incremental benefit beyond that provided by listing. With designation, minor regulatory (
Critical habitat involves the identification and publication of detailed descriptions and maps. Publication of such maps and information, otherwise not now available, exposes the Miami blue to an increased threat of collection. It also increases the potential for inadvertent or purposeful disturbance and vandalism to important and sensitive habitats and contributes to enforcement issues. Overall, we find that the risk of increasing significant threats to the subspecies by publishing location information in a critical habitat designation greatly outweighs the minimal regulatory and educational benefits of designating critical habitat.
In conclusion, we find that the designation of critical habitat is not prudent, in accordance with 50 CFR 424.12(a)(1), because the Miami blue butterfly is threatened by collection and habitat destruction, and designation can reasonably be expected to increase the degree of these threats to the subspecies and its habitat.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed, preparation of a draft and final recovery plan, and revisions to the plan as significant new information becomes available. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The recovery plan identifies site-specific management actions that will achieve recovery of the species, measurable criteria that determine when a species may be downlisted or delisted, and methods for monitoring recovery
Implementation of recovery actions generally requires the participation of a road range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Through this listing, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. Additionally, under section 6 of the Act, we would be able to grant funds to the State of Florida for management actions promoting the conservation of the Miami blue. Information on our grant programs that are available to aid species recovery can be found at:
Please let us know if you are interested in participating in recovery efforts for the Miami blue. Additionally, we invite you to submit any new information on the subspecies, its habitat, or threats whenever it becomes available and any information you may have for recovery planning purposes.
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies to confer informally with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to 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 formal consultation with us.
Federal agency actions that may require conference or consultation as described in the preceding paragraph include the issuance of Federal funding, permits, or authorizations for construction, clearing, development, road maintenance, pesticide registration, pesticide use (on Federal land or with Federal funding), agricultural assistance programs, Federal loan and insurance programs, Federal habitat restoration programs, and scientific and special uses. Activities will trigger consultation under section 7 of the Act if they may affect the Miami blue butterfly.
Prior to and following listing, the Service applies an analytical framework for jeopardy analyses that relies heavily on the importance of core area populations to the survival and recovery of the species. The section 7(a)(2) analysis is focused not only on these populations but also on the habitat conditions necessary to support them.
The jeopardy analysis usually expresses the survival and recovery needs of the species in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery. Generally, if a proposed Federal action is incompatible with the viability of the affected core area populations(s), inclusive of associated habitat conditions, a jeopardy finding is considered to be warranted, because of the relationship of each core area population to the survival and recovery of the species as a whole.
The Act and implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions are applicable to the Miami blue butterfly immediately with listing. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.21 for endangered wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt any of these), import or export, deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Further, it is illegal for any person to attempt to commit, to solicit another person to commit, or to cause to be committed, any of these acts. Certain exceptions apply to our agents and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. We codified the regulations governing permits for endangered species at 50 CFR 17.22. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, or for incidental take in the course of otherwise lawful activities.
It is our policy, published in the
(1) Possession, delivery, or movement, including interstate transport and import into or export from the United States, involving no commercial activity, of dead specimens of this taxon that were collected or legally acquired prior to the effective date of the emergency rule (August 10, 2011).
(2) Actions that may affect the Miami blue that are authorized, funded, or carried out by Federal agencies when such activities are conducted in accordance with an incidental take statement issued by us under section 7 of the Act.
(3) Actions that may affect the Miami blue that are not authorized, funded, or carried out by a Federal agency, when the action is conducted in accordance with an incidental take permit issued by
(4) Actions that may affect the Miami blue that are conducted in accordance with the conditions of a section 10(a)(1)(A) permit for scientific research or to enhance the propagation or survival of the subspecies.
(5) Captive propagation activities involving the Miami blue that are conducted in accordance with the conditions of a section 10(a)(1)(A) permit, our “Policy Regarding Controlled Propagation of Species Listed Under the Endangered Species Act,” and in cooperation with the State of Florida.
(6) Low-impact, infrequent, dispersed human activities on foot (
(7) Activities on private lands that do not result in take of the Miami blue butterfly, such as normal landscape activities around a personal residence, construction that avoids butterfly habitat, and pesticide/herbicide application consistent with label restrictions, if applied in areas where the subspecies is absent.
We estimate that the following activities would be likely to result in a violation of section 9 of the Act; however, possible violations are not limited to these actions alone:
(1) Unauthorized possession, collecting, trapping, capturing, killing, harassing, sale, delivery, or movement, including interstate and foreign commerce, or harming or attempting any of these actions, of Miami blue butterflies at any life stage without a permit (research activities where Miami blue butterflies are handled, captured (
(2) Incidental take of Miami blue butterfly without a permit pursuant to section 10 (a)(1)(B) of the Act.
(3) Sale or purchase of specimens of this taxon, except for properly documented antique specimens of this taxon at least 100 years old, as defined by section 10(h)(1) of the Act.
(4) Unauthorized destruction or alteration of Miami blue butterfly habitat (including unauthorized grading, leveling, plowing, mowing, burning, trampling, herbicide spraying, or other destruction or modification of occupied or potentially occupied habitat or pesticide application in known occupied habitat) in ways that kills or injures eggs, larvae, or adult Miami blue butterflies by significantly impairing the subspecies' essential breeding, foraging, sheltering, or other essential life functions.
(5) Use of pesticides/herbicides that are in violation of label restrictions resulting in take of Miami blue butterfly or beneficial ants associated with the subspecies in areas occupied by the butterfly.
(6) Unauthorized release of biological control agents that attack any life stage of this taxon or beneficial ants associated with the Miami blue.
(7) Removal or destruction of native food plants being utilized by Miami blue butterfly, including
(8) Release of exotic species into occupied Miami blue butterfly habitat that may displace the Miami blue or its native host plants.
We will review other activities not identified above on a case-by-case basis to determine whether they may be likely to result in a violation of section 9 of the Act. We do not consider these lists to be exhaustive, and we provide them as information to the public.
You should direct questions regarding whether specific activities may constitute a future violation of section 9 of the Act to the Field Supervisor of the Service's South Florida Ecological Services Field Office (see
Section 4(e) of the Act authorizes the treatment of a species, subspecies, or population segment as endangered or threatened if: “(a) such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species; (b) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and (c) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this Act.” Listing a species as endangered or threatened under the similarity of appearance provisions of the Act extends the take prohibitions of section 9 of the Act to cover the species. A designation of endangered or threatened due to similarity of appearance under section 4(e) of the Act, however, does not extend other protections of the Act, such as consultation requirements for Federal agencies under section 7 and the recovery planning provisions under section 4(f), that apply to species that are listed as endangered or threatened under section 4(a). All applicable prohibitions and exceptions for species listed under section 4(e) of the Act due to similarity of appearance to a threatened or endangered species will be set forth in a special rule under section 4(d) of the Act.
There are only slight morphological differences between the Miami blue and the cassius blue, ceraunus blue, and nickerbean blue, making it difficult to differentiate between the species, especially due to their small size (see Background above). Aside from technical experts, most people would have difficulty distinguishing these similar butterflies (as adults, eggs, or larvae), especially without field guides or when adults are in flight. This poses a problem for Federal and State law enforcement agents trying to stem illegal collection and trade in the Miami blue. It is quite possible that collectors authorized to collect similar species may inadvertently (or purposefully) collect the Miami blue butterfly thinking it was the cassius blue, ceraunus blue, or nickerbean blue, which also occur in the same geographical area and habitat type. The listing of these similar blue butterflies as threatened due to similarity of appearance reduces the likelihood that amateur butterfly enthusiasts and private and commercial collectors will purposefully or accidentally misrepresent the Miami blue as one of these other species.
The listing will also facilitate Federal and State law enforcement agents' efforts to curtail illegal possession, collection, and trade in the Miami blue. At this time, the three similar butterflies are not protected by the State of Florida. Extending the prohibitions of collection to the three similar butterflies through this listing of these species due to similarity of appearance under section 4(e) of the Act and providing applicable prohibitions and exceptions under section 4(d) of the Act will provide
We are limiting the listing of these similar butterflies to only a portion of their ranges because we find this is sufficient to protect the Miami blue (from collection) while being responsive to comments received (see
Whenever a species is listed as a threatened species under the Act, the Secretary may specify regulations that he deems necessary and advisable to provide for the conservation of that species under the authorization of section 4(d) of the Act. These rules, commonly referred to as “special rules,” are found in part 17 of title 50 of the Code of Federal Regulations (CFR) in §§ 17.40–17.48. This special rule for § 17.47 prohibits take of any cassius blue butterfly
Capture of cassius blue, ceraunus blue, or nickerbean blue butterflies, or their immature stages, is not prohibited if it is accidental or incidental to otherwise legal collection activities, such as research, provided the animal is released immediately upon discovery at the point of capture. Scientific activities involving collection or propagation of these similarity of appearance butterflies are not prohibited, provided there is prior written authorization from the Service. All otherwise legal activities involving cassius blue, ceraunus blue, or nickerbean blue butterflies that are conducted in accordance with applicable State, Federal, Tribal, and local laws and regulations are not considered to be take under this regulation. For further explanation see “Effects of the Rule” immediately below.
Listing the cassius blue, ceraunus blue, and nickerbean blue butterflies as threatened under the “similarity of appearance” provisions of the Act, and the promulgation of a special rule under section 4(d) of the Act, extend take prohibitions to these species and their immature stages in portions of their ranges. Capture of these species, including their immature stages, is not prohibited if it is accidental or incidental to otherwise legal collection activities, such as research, provided the animal is released immediately upon discovery, at the point of capture. However, this final rule establishes prohibitions on the collection of these species throughout coastal south and central Florida within the historical range of the Miami blue butterfly.
All otherwise legal activities that may involve incidental take (take that results from, but is not the purpose of, carrying out an otherwise lawful activity) of these similar butterflies, and which are conducted in accordance with applicable State, Federal, Tribal, and local laws and regulations, will not be considered take under this regulation. For example, this special 4(d) rule exempts legal application of pesticides, yard care, vehicle use, vegetation management, exotic plant removal, burning, and any other legally undertaken actions that result in the accidental take of cassius blue, ceraunus blue, or nickerbean blue butterflies. These actions will not be considered as violations of section 9 of the Act. We find that listing the cassius blue, ceraunus blue, and nickerbean blue butterflies under the similarity of appearance provision of the Act, coupled with this special 4(d) rule, will help minimize enforcement problems and enhance conservation of the Miami blue.
The provision to allow incidental take of these three similar butterflies will not pose a threat to the Miami blue because: (1) Activities such as yard care and vegetation control in developed or commercial areas that are likely to result in take of the cassius blue, ceraunus blue, and nickerbean blue are not likely to affect the Miami blue (which occur only on conservation lands), and (2) the primary threat that activities concerning the cassius blue, ceraunus blue, and nickerbean blue butterflies pose to the Miami blue comes from collection.
As explained previously in Previous Federal Actions above, we believe that it is necessary to establish immediate protections under the Act for these butterfly species. The August 10, 2011, emergency rule (76 FR 49542) that implemented protections for 240 days expires April 6, 2012. Therefore, under the exemption provided in the Administrative Procedure Act (5 U.S.C. 553(d)(3)), we have determined that “good cause” exists to make these regulations effective as stated above (see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and (e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
This final rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. This rule will not impose new recordkeeping or
We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the
A complete list of all references cited in this final rule is available on the Internet at
The primary authors of this rule are staff members of the South Florida Ecological Services Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:
16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.
(h) * * *
(a) Cassius blue butterfly (
(1) The provisions of § 17.31(c) apply to these species (cassius blue butterfly, ceraunus blue butterfly, nickerbean blue butterfly), regardless of whether in the wild or in captivity, and also apply to the progeny of any such butterfly.
(2) Any violation of State law will also be a violation of the Act.
(3) Incidental take, that is, take that results from, but is not the purpose of, carrying out an otherwise lawful activity, will not apply to the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly.
(4) Collection of the cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue butterfly is prohibited in coastal counties south of Interstate 4 and extending to the boundaries of the State of Florida at the endpoints of Interstate 4 at Tampa and Daytona Beach. Specifically, such activities are prohibited in the following counties: Brevard, Broward, Charlotte, Collier, De Soto, Hillsborough, Indian River, Lee, Manatee, Pinellas, Sarasota, St. Lucie, Martin, Miami-Dade, Monroe, Palm Beach, and Volusia.
(b) [