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U.S. Small Business Administration
Final rule.
In this rule, the U.S. Small Business Administration (SBA) sets forth defined terms for “Energy Saving Qualified Investment” and “Energy Saving Activities” for the Small Business Investment Company (SBIC) Program. These definitions are established to implement a provision of the Energy Independence and Security Act of 2007 (Energy Act), which allows an SBIC making an “energy saving qualified investment” to obtain SBA leverage by issuing a deferred interest “energy saving debenture”. This rule also implements a provision of the Energy Act that provides access to additional SBA leverage for SBICs that have made Energy Saving Qualified Investments in Smaller Enterprises. This final rule includes changes based on public comments received on the proposed rule published in the
This rule is effective April 19, 2012.
Carol Fendler, Office of Investment, (202) 205-7559 or
The Energy Independence and Security Act of 2007, Public Law 110-140, Title XII, section 1205(a), amended section 303 of the Small Business Investment Act of 1958 (SBI Act) by authorizing SBICs licensed after September 30, 2008, to issue Energy Saving Debentures. Section 1205(b) of the Energy Act amended section 103 of the SBI Act by adding the new defined terms “energy saving debenture” and “energy saving qualified investment.” Section 1206 of the Energy Act amended section 303(b)(2) of the SBI Act to make SBICs licensed after September 30, 2008, eligible for additional leverage if they have made Energy Saving Qualified Investments. An SBIC making maximum use of this provision could have approximately 11% more leverage outstanding than would be permitted under the standard leverage eligibility formula.
On January 11, 2011, SBA published a proposed rule to implement the SBIC-related provisions of the Energy Act (76 FR 2029). SBA received eleven sets of comments on the proposed rule, primarily falling into three areas: (1) Definitions; (2) procedures and timing when SBA must make a pre-financing determination of eligibility, including the details of SBA's collaboration with the Department of Energy (DOE); and (3) impact of the Energy Saving Debenture on SBIC program costs. SBA discusses the comments in the following section-by-section analysis.
The proposed regulatory definition of Energy Saving Qualified Investment had several key points. First, as required by statute, an Energy Saving Qualified Investment can only be made by an SBIC licensed after September 30, 2008. Second, the investment must be made in a Small Business, as defined in 13 CFR part 107. Third, the investment must be in the form of a Loan, a Debt Security (a debt instrument that includes an equity feature, such as warrants or rights to convert to equity), or an Equity Security. Fourth, the Small Business must be “primarily engaged” in business activities that reduce the use or consumption of non-renewable energy sources (“Energy Saving Activities”).
Four commenters suggested that SBA broaden the criteria under which a Small Business is presumed to be “primarily engaged” in Energy Saving Activities. In the proposed rule, the presumption applied only to a Small Business that derived at least 50% of its revenues during its most recently completed fiscal year from Energy Saving Activities. The commenters' concern was that a Small Business would not be able to satisfy a historical revenue-based test if it was either a start-up or an established company expanding its business to include Energy Saving Activities. While the proposed rule would have allowed SBA to make a determination of eligibility in such cases, SBA agrees that a broader presumption of eligibility would be an effective way to encourage investment and reduce administrative burden. In considering how to expand the presumption in the final rule, SBA favored a test that would be simple to apply and would focus on prospective rather than historical activity. In the final rule, SBA has retained the proposed revenue-based presumption while adding a second presumption: a Small Business is presumed to meet the “primarily engaged” test if it will utilize 100% of the proceeds of a financing to engage in Energy Saving Activities.
The proposed rule defined Energy Saving Activities largely by referencing certain criteria established by the Department of Energy and other Federal agencies to identify energy efficient products and services and renewable energy sources. As one example, the
Paragraph (1) of the proposed definition provided that Energy Saving Activities would include not only manufacturing or research and development of energy-efficient final products, but also “integral product components, integral material, or related software”. One commenter asked SBA to clarify that Small Businesses producing “supply chain” components for products eligible for federal tax credits are included in the definition of Energy Saving Activities. SBA intended paragraph (1) of the proposed definition to include the activities of “supply chain” Small Businesses. SBA believes the proposed rule was sufficiently clear on this point and does not require modification.
SBA received a comment to include under the definition of Energy Saving Activities any Small Business activity that qualifies for either the Residential Energy Tax Credit or an Advanced Research Project Agency—Energy (ARPA-E) grant award. With the agreement of DOE, SBA has added paragraph (1)(v) to the Energy Saving Activities definition to include those activities, as well as any other technology commercialization activity that has qualified for a DOE Small Business Innovation Research (SBIR) or Small Business Technology Transfer (STTR) award.
SBA received, but did not adopt, a comment suggesting that paragraph (1)(iii) of the definition, which describes activities that improve “automobile” efficiency, should be broadened to include other means of transport such as trucks, buses, trains, and aircraft. This provision of the proposed rule was based upon DOE's specific expertise in energy savings activities related to passenger vehicles, whereas other transportation alternatives would fall across the purview of several Federal agencies. SBA expects that many activities aimed at achieving results similar to those described in paragraph (1)(iii) for forms of transportation other than automobiles would qualify as Energy Saving Activities under paragraph (4) of the definition.
SBA received five comments suggesting the definition of Energy Saving Activities be expanded to specifically include the biomass preprocess of pyrolysis, which is one method of biomass conversion for the ultimate production of renewable solid fuels. Based on consultation with DOE, SBA did not adopt this suggestion, as each preprocess of biomass is situational and specific and there are currently no approved standards by which to evaluate all levels of biomass preprocesses and conversion methods. With the many possible technological permutations, SBA believes that potential SBIC investments involving pyrolysis or any type of preprocessing of biomass should be evaluated on a case-by-case basis under paragraph (4) of the definition.
SBA received one comment to expand the definition of Energy Saving Activities to include “earthquake disaster potential and pipeline safety” of both non-renewable and renewable energy sources. While SBA agrees that these are important concerns, they are outside the scope of activities contemplated by the Energy Act.
SBA received one comment to broaden the definition of Energy Saving Activities “* * * to include all forms of commercialization of R[esearch] &D[evelopment], including `licensing' and `outsourcing' as well as revenues generated by those activities.” Paragraphs (1) and (4) of the proposed definition already encompassed research and development activities; the commenter's suggestion would also treat the receipt of licensing fees, royalties, or similar payments as an Energy Saving Activity if such payments were generated from the results of previously conducted research and development that would have qualified as Energy Saving Activities. SBA does not believe that the passive receipt of payments is appropriate for inclusion in the definition. Furthermore, if a Small Business generates revenues solely from licensing or similar activities, it would be ineligible for SBIC financing under existing § 107.720(b), which prohibits the financing of a passive business. It should be noted, however, that a Small Business that outsources the manufacturing of its products may still qualify for financing (and its activities may qualify as Energy Saving Activities) if it is actively engaged in product design or deployment.
Paragraph (1)(v) of the Energy Saving Activities definition in the proposed rule (redesignated as paragraph (1)(vi) in the final rule) included activities that meet the standards for receiving Energy Credits as defined in Internal Revenue Code section 48, among which is a credit related to qualified fuel cell power plants. In the final rule, at the suggestion of DOE, SBA has added paragraph (1)(vii) to the Energy Saving Activities definition, to clarify that the definition includes the provision of highly efficient conversion systems for fuel cells that can use renewable or non-renewable fuel.
SBA has also made non-substantive edits to improve the clarity of paragraphs (1)(viii) and (2)(v) of the Energy Saving Activities definition. Paragraph (1)(viii) concerns manufacturing or research and development activities that improve electricity delivery efficiency by supporting one or more defined smart grid functions; paragraph (2)(v) concerns deployment of products, services or functionalities for the same purpose.
As part of its review of the certification requirements in response to the comments on the proposed rule, SBA noted that proposed paragraph (f)(1), which concerns Energy Saving Qualified Investments that do not require a pre-financing determination of eligibility by SBA, required a certification by the SBIC but not by the concern receiving the financing. Because not all information can be independently confirmed, an SBIC must rely to some degree on the integrity of the information that a concern provides. Therefore, in the final rule, § 107.610(f)(1)(iv) adds a requirement under which a concern receiving financing must certify, as true and correct to the best of its knowledge, any information it provided to an SBIC in connection with the determination that the concern was eligible to receive an Energy Saving Qualified Investment.
As discussed earlier in this preamble, SBA has revised the definition of Energy Saving Qualified Investment by adding a presumption that a Small Business will be considered “primarily engaged” in Energy Saving Activities if it intends to use all of the proceeds of a proposed financing for such activities. In connection with that revision, SBA has added post-investment requirements for documentation of the actual use of proceeds in § 107.610(f)(5). Under these provisions, the Small Business must provide the SBIC with documentation of the use of proceeds no later than six months after the closing date of the financing; if some or all of the proceeds have not yet been spent, further updates would be required at six-month intervals. SBA expects, given the substantial investment amounts typically involved, that an SBIC would monitor use of proceeds at least this frequently in the ordinary course of business. The SBIC would be responsible for reviewing the information submitted by the Small Business and documenting that it had reasonably determined that the financing proceeds were used appropriately to fund Energy Saving Activities.
SBA has also slightly reorganized § 107.610(f) for greater clarity; in the final rule, § 107.610(f)(2) includes only the requirements for an SBIC seeking a determination from SBA that an activity in which a concern is engaged is an Energy Saving Activity. The requirements for an SBIC seeking a determination from SBA that a concern is “primarily engaged” in Energy Saving Activities appear separately in § 107.610(f)(3). The requirement for certification by the SBIC as of the closing date of the financing appears in § 107.610(f)(4).
SBA also received three comments dealing more generally with the process and timeframe for obtaining a pre-financing determination of eligibility from SBA. Commenters suggested that SBA allow SBICs to submit materials electronically and develop an expected timeline for consideration for SBA to reach a decision in consultation with DOE.
SBA has and will continue to consult with DOE technical experts on an as-needed basis when evaluating whether certain small business concerns are primarily engaged in an energy saving activity (per request of an SBIC as part of the pre-financing determination of eligibility of use for the Energy Savings Debenture program). As discussed in the “Paperwork Reduction Act” section of this preamble, SBA will electronically collect information from an SBIC through the “Financing Eligibility Statement for Usage of Energy Saving Debenture”.
As discussed in the preamble to the proposed rule, section 1205(b) of the Energy Act provided for SBA leverage in the form of an “energy saving debenture”, which would be a five- or ten-year debenture issued at a discount so as to be, in effect, a “zero coupon” debenture for the first five years. SBA leverage fees would be paid as required under current § 107.1130, except for the annual charge in § 107.1130(d) which would be deferred for the first five years and thereafter be payable semi-annually along with the debenture interest. For example, an SBIC issuing a $1,000,000 ten-year debenture with a combined interest rate and annual charge of 6% would receive roughly $750,000 upon issuance and would make no payments of interest or annual charge for the first five years. Starting with the sixth year, the SBIC would make semi-annual payments of interest and charges on the debenture's face amount of $1,000,000. At maturity the SBIC would pay the $1,000,000 face amount of the debenture.
Each SBIC licensed after September 30, 2008, that is eligible to issue debentures under current regulations would be eligible to issue an Energy Saving Debenture for the purpose of making an Energy Saving Qualified Investment. No regulatory changes are necessary to implement this new type of debenture. However, SBA did receive a number of comments concerning the Energy Saving Debenture.
SBA received two comments stating that SBA should clarify how an SBIC will be able to calculate the net proceeds it can expect to receive when it issues an Energy Saving Debenture. The same two commenters also asked whether the interest rate on an Energy Saving Debenture could change after issuance if SBA were to include the debenture in a pool of securities offered for public or private sale, and if so whether the change might affect the funds available to the SBIC.
As discussed elsewhere in this preamble, the cash received by an SBIC issuing an Energy Saving Debenture would be the face value of the debenture discounted by the present value of the interest and annual Charge for the five-year discount period. SBA currently maintains a calculator that an SBIC can use to estimate the net proceeds of an LMI debenture, which has the same structure as the Energy Saving Debenture. The LMI calculator can be accessed through
SBA does not anticipate that Energy Saving Debentures will be pooled. SBICs can expect the interest rate on such debentures to remain fixed for their entire term.
SBA received two comments stating that SBICs planning to use Energy Saving Debentures must be able to understand how SBA intends to apportion availability. Beginning in fiscal year 2012, SBA expects to hold annual Energy Saving Debenture allocations on a semi-annual basis, authorizing up to half of the overall annual allocation amount in the first allocation period and the remainder in the second period. SBA will limit the maximum initial Energy Saving Debenture allocation for an individual
Finally, SBA received two comments regarding the impact of the Energy Saving Debenture on program costs; these comments are discussed in the section of this preamble concerning compliance with Executive Order 12866.
As discussed in the preamble to the proposed rule, SBA intends to link its Investment Division Web site (
The Administrative Procedure Act (APA), 5 U.S.C. 553(d)(3), requires that “publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.”
The purpose of this provision is to provide interested and affected members of the public sufficient time to adjust their behavior before the rule takes effect. In the case of this rulemaking, however, there should be no need for any member of the public, including any SBIC, to make any changes in order to prepare for the rule taking effect. This rule implements changes to the SBIC program to encourage financings in Energy Saving Qualified Investments, which are expected to contribute to the important goal of reducing U.S. dependence on non-renewable fuels. Any further delay in making leverage available to SBICs in the form of Energy Saving Debentures will only hold back the potential benefits of investment in small business engaged in Energy Saving Activities. SBA therefore finds that there is good cause for making this rule effective immediately instead of observing the 30-day period between publication and effective date.
OMB has determined that this rule is a “significant” regulatory action under Executive Order 12866. In the proposed rule, SBA set forth its initial regulatory impact analysis, which addressed the following: Necessity of the regulation; alternative approaches to the proposed rule; and the potential benefits and costs of the regulation. SBA received comments which addressed both alternative approaches to and potential costs of the regulation. Those comments are discussed in the final Regulatory Impact Analysis set forth below:
This regulatory action implements sections 1205 and 1206 of the Energy Independence and Security Act of 2007, Public Law 110-140. The statutory revisions provide an SBIC seeking to make an “energy saving qualified investment” with a new SBA leverage option in the form of an “energy saving debenture.”
Because the regulatory definition of Energy Saving Qualified Investment must be consistent with the statutory definition, SBA had a limited ability to consider alternatives. The statute defines “energy saving qualified investment” as an “investment in a small business concern that is primarily engaged in researching, manufacturing, developing, or providing products, goods, or services that reduce the use or consumption of non-renewable energy resources.” The SBA considered adopting this statutory definition without modification. However, SBA did not select this approach due to concerns that without some interpretation of the broad statutory language, it would be difficult to evaluate (a) whether qualifying investments would actually contribute to the energy-saving objectives of the statute and (b) what constitutes “primarily engaged”.
In considering alternatives for determining whether a qualifying investment would likely contribute to the energy-saving objectives of the statute, the SBA conferred with DOE to consider two options besides using the broad statutory definition: (1) Defining a list of specific industries and (2) referencing existing standards developed for Federal programs that promote energy efficiency. SBA did not adopt the first option to identify a list of specific industries because (1) “energy saving” efforts take place across a broad spectrum of industries; (2) the North American Industrial Classification System (NAICS) codes, typically used to identify industries, are inadequate for capturing whether a business is involved in “energy saving” across this spectrum; and (3) developing a static list does not adequately allow for either a full range of products and services or the rapid growth in this area that might further the statutory goals. Given the number of Federal programs already directed towards “energy saving” activities, SBA chose to adopt the second option in order to improve standardization across agencies, allow growth as DOE and other agencies update program standards to reflect new “energy saving” initiatives, and to address the broadest spectrum of products and services. Towards those goals, SBA recognizes that SBICs may wish to invest in Small Businesses that are manufacturing or researching products or performing services that have not been identified by existing Federal standards. Therefore, SBA will also consider other investments on a case by case basis, based on the SBIC's ability to demonstrate energy savings associated with the Small Business's activities.
To determine whether a concern is “primarily engaged” in Energy Saving Activities, SBA considered using either
As stated in the proposed rule, SBA initially estimated demand for Energy Saving Debentures at approximately 5 percent of the overall SBIC debenture program. This estimate was based on SBA's analysis of SBICs' usage of the “low and moderate income” (LMI) debenture, which has the same structure as the Energy Saving Debenture, and on venture capital industry data for “Cleantech” investments, which SBA believes are fairly representative of energy saving investments. SBA estimated that level of demand would result in an increase to the annual fee of 14.3 basis points versus a formulation with no Energy Saving Debentures. When calculating the SBA Fiscal Year 2012 budget, SBA found that the same level of demand would increase the annual fee for SBIC licensees by 15.5 basis points versus a formulation with no Energy Saving Debentures. This increase reflects an overall increase in the size of the SBIC program while taking into account the additional risk associated with SBIC equity investments contemplated in the usage of the Energy Saving Debenture.
SBA received two comments stating that Energy Saving Debentures should not be combined with standard debentures when calculating the annual fee charged to all debenture users. The commenters expressed concern that all SBIC debenture issuers would be required to subsidize the higher-risk Energy Saving Debenture, including those SBICs whose access to the Energy Saving Debenture is prohibited because they were licensed before October 1, 2008.
SBA understands the commenters' concern about spreading the costs of the Energy Saving Debenture across the entire debenture program. In order to limit the impact of fee increases, SBA has decided to cap the amount of Energy Saving Debentures available in a given fiscal year at 5 percent of the overall SBIC program debenture program level for the year, even if demand proves to be higher. However, SBA does not believe it is feasible to accommodate the commenters' request to separate the Energy Saving Debenture from the standard debenture. On a stand-alone basis, the annual fee for the Energy Saving Debenture would exceed the statutory maximum of 1.38%, meaning that SBA would be unable to implement the statutory provisions of the Energy Act. SBA will review the demand for and performance of the Energy Saving Debenture on an annual basis to determine whether the modeling assumptions underlying this Regulatory Impact Analysis should be changed.
This action meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or presumptive effect.
For the purposes of Executive Order 13132, SBA has determined that this final rule will not have substantial, direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, Federalism, SBA has determined that this final rule has no federalism implications warranting the preparation of a federalism assessment.
SBA has determined that this rule imposes additional reporting and recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., chapter 35. This collection of information includes three different reporting requirements: (1) Information needed for SBA to determine whether a Small Business is “primarily engaged” in Energy Saving Activities, (2) information needed for SBA to determine whether a particular activity is an “Energy Saving Activity”, and (3) identification of a completed financing as an Energy Saving Qualified Investment on the Portfolio Financing Report (an existing information collection approved under OMB Control Number 3245-0078). The descriptions of respondents and the titles and purpose of the information collections are discussed below with an estimate of the annual reporting burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.
The recordkeeping requirements under the final rule relate to the information that an SBIC must maintain in its files to support the required certifications for Energy Saving Qualified Investments under § 107.610(f)(1). SBA expects that SBICs will be able to obtain the necessary documentation with minimal effort. The SBIC would first document that the contemplated investment is in a company that provides products or services included in the definition of Energy Saving Activities, generally by referring to one of the government Web sites discussed in this preamble. Second, the SBIC would document that the company derives at least 50% of its revenues from the sales of these products or services, or, that the company will utilize 100% of the proceeds from the financing for Energy Saving Activities; the company would have this information available in the ordinary course of business.
When an agency promulgates a rule, the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires the agency to prepare an initial regulatory flexibility analysis (IRFA) which describes the potential economic impact of the rule on small entities and alternatives that may minimize that impact. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an IRFA, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. This final rule affects all SBICs issuing debentures, of which there are approximately 160, most of which are small entities. Therefore, SBA has determined that this rule will have an impact on a substantial number of small entities. However, SBA has determined that the impact on entities affected by the rule will not be significant. The Energy Saving Qualified Investment definition identifies the type of investment for which an SBIC will be permitted to seek SBA funding in the form of an Energy Saving Debenture; this instrument, because of its deferred interest feature, is expected to provide SBICs with greater flexibility in structuring qualified investments. The Energy Saving Debenture is expected to increase the annual fee charged on all new debenture commitments by approximately 15.5 basis points during fiscal year 2012; however, the fee would continue to remain well below the statutorily set maximum fee. Accordingly, the Administrator of the SBA hereby certifies that this rule will not have a significant impact on a substantial number of small entities.
Investment companies, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, SBA amends part 107 of title 13 of the Code of Federal Regulations as follows:
15 U.S.C. 681 et seq., 683, 687(c), 687b, 687d, 687g, 687m and Pub. L. 106-554, 114 Stat. 2763; and Pub. L. 111-5, 123 Stat. 115.
(1) Manufacturing or research and development of products, integral product components, integral material, or related software that meet one or more of the following:
(i) Improves residential energy efficiency as demonstrated by meeting Department of Energy or Environmental Protection Agency criteria for use of the Energy Star trademark label;
(ii) Improves commercial energy efficiency as demonstrated by being in the upper 25% of efficiency for all similar products as designated by the Department of Energy's Federal Energy Management Program;
(iii) Improves automobile efficiency or reduces consumption of non-renewable fuels through the use of advanced batteries, power electronics, or electric motors; advanced combustion engine technology; alternative fuels; or advanced materials technologies, such as lightweighting;
(iv) Improves industrial energy efficiency through combined heat and power (CHP) prime mover or power generation technologies, heat recovery units, absorption chillers, desiccant dehumidifiers, packaged CHP systems, more efficient process heating equipment, more efficient steam generation equipment, heat recovery steam generators, or more efficient use of water recapture, purification and reuse for industrial application;
(v) Advances commercialization of technologies developed by recipients of awards from the Department of Energy under the Advanced Research Projects Agency—Energy, Small Business Innovation Research, or Small Business Technology Transfer programs;
(vi) Reduces the consumption of non-renewable energy by providing renewable energy sources, as demonstrated by meeting the standards, applicable to the year in which the investment is made, for receiving a Renewable Electricity Production Tax Credit as defined in Internal Revenue Code Section 45 or an Energy Credit as defined in Internal Revenue Code Section 48;
(vii) Reduces the consumption of non-renewable energy for electric power generation as described in Internal Revenue Code Section 48(c)(1)(A) by providing highly efficient energy conversion systems that can use renewable or non-renewable fuel through fuel cells; or
(viii) Improves electricity delivery efficiency by supporting one or more of the smart grid functions as identified in 42 U.S.C. 17386(d), by means of a product, service, or functionality that serves one or more of the following smart grid operational domains: Equipment manufacturing, customer systems, advanced metering infrastructure, electric distribution systems, electric transmission systems, storage systems, and cyber security.
(2) Installation and/or inspection services associated with the deployment of energy saving products as identified by meeting one or more of the following standards:
(i) Deploys products that qualify, in the year in which the investment is made, for installation-related Federal Tax Credits for Residential Consumer Energy Efficiency;
(ii) Deploys products related to commercial energy efficiency as demonstrated by deploying commercial equipment that is in the upper 25% of efficiency for all similar products as designated by the Department of Energy's Federal Energy Management Program;
(iii) Deploys combined heat and power products, goods, or services;
(iv) Deploys products that qualify, in the year in which the investment is made, for receiving a Renewable Electricity Production Tax Credit as defined in Internal Revenue Code Section 45 or an Energy Credit as defined in Internal Revenue Code Section 48; or
(v) Deploys a product, service, or functionality that improves electricity delivery efficiency by supporting one or more of the smart grid functions as identified in 42 U.S.C. 17386(d), and that serves one or more of the following smart grid operational domains: Equipment manufacturing, customer systems, advanced metering infrastructure, electric distribution systems, electric transmission systems, or grid cyber security.
(3) Auditing or consulting services performed with the objective of identifying potential improvements of the type described in paragraph (1) or (2) of this definition.
(4) Other manufacturing, service, or research and development activities that use less energy to provide the same level of energy service or reduce the consumption of non-renewable energy by providing renewable energy sources, as determined by SBA. A Licensee must obtain such determination in writing prior to providing Financing to a Small Business. SBA will consider factors including but not limited to:
(i) Results of energy efficiency testing performed in accordance with recognized professional standards, preferably by a qualified third-party professional, such as a certified energy assessor, energy auditor, or energy engineer;
(ii) Patents or grants awarded to or licenses held by the Small Business related to Energy Saving Activities listed in subsection (1) or (2) above;
(iii) For research and development of products or services that are anticipated to reduce the consumption of non-renewable energy, written evidence from an independent, certified third-party professional of the feasibility, commercial potential, and projected energy savings of such products or services; and
(iv) Eligibility of the product or service for a Federal tax credit cited in this definition that is not available in the year in which the investment is made, but was available in a previous year.
(1) Is made by a Licensee licensed after September 30, 2008;
(2) Is in the form of a Loan, Debt Security, or Equity Security, each as defined in this section;
(3) Is made to a Small Business that is primarily engaged in Energy Saving Activities. A Licensee must obtain a determination from SBA prior to the provision of Financing as to whether a Small Business is primarily engaged in Energy Saving Activities. SBA will consider the distribution of revenues, employees and expenditures, intellectual property rights held, and Energy Saving Activities described in a business plan presented to investors as part of a formal solicitation in making its determination. However, a Small Business is presumed to be primarily engaged in Energy Saving Activities, and no pre-Financing determination by SBA is required, if:
(i) The Small Business derived at least 50% of its revenues during its most recently completed fiscal year from Energy Saving Activities; or
(ii) The Small Business will utilize 100% of the Financing proceeds received from a Licensee to engage in Energy Saving Activities.
* * * Except for information and documentation prepared under paragraphs (f)(2) and (3) of this section, you must keep these documents in your files and make them available to SBA upon request.
(f) For each Energy Saving Qualified Investment:
(1) If a pre-Financing determination of eligibility by SBA is not required under the definition of Energy Saving Activities or Energy Saving Qualified Investment:
(i) A certification by you, dated as of the closing date of the Financing, as to the basis for the qualification of the Financing as an Energy Saving Qualified Investment;
(ii) Supporting documentation of the Energy Saving Activities engaged in by the concern;
(iii) Supporting documentation of either the percentage of its revenues derived from Energy Saving Activities during the concern's most recently completed fiscal year, which must be at least 50 percent, or the concern's intended use of the Financing proceeds, all of which must be used for Energy Saving Activities; and
(iv) A certification by the concern, dated as of the closing date of the Financing, that any information it provided to you in connection with this paragraph (f)(1) is true and correct to the best of its knowledge.
(2) If, prior to providing Financing, you must obtain a determination from SBA that the activities in which a concern is engaged are Energy Saving Activities, submit to SBA in writing a description of the product or service being provided or developed, including all available documentation of the energy savings produced or anticipated, addressing the factors considered under paragraph (4) of the definition of “Energy Saving Activities” in § 107.50 and certified by the concern to be true and correct to the best of its knowledge.
(3) If, prior to providing Financing, you must obtain a determination from SBA that the concern is “primarily engaged” in Energy Saving Activities, submit to SBA in writing all available information concerning the factors considered under paragraph (3) of the definition of “Energy Saving Qualified Investment” in § 107.50, certified by the concern to be true and correct to the best of its knowledge.
(4) For each Financing closed after you obtain a determination from SBA under paragraph (f)(2) or (3) of this section, a certification by you, dated as of the closing date of the Financing, that to the best of your knowledge, you have no reason to believe that the materials submitted are incorrect.
(5) For each Financing closed based on supporting documentation of the concern's intended use of proceeds for Energy Saving Activities under paragraph (f)(1)(iii) of this section:
(i) Documentation by the concern, dated no later than six months after the closing of the Financing, of the proceeds used to date for Energy Saving Activities, with further updates provided at six month intervals until 100 percent of the Financing proceeds have been accounted for; and
(ii) Documentation that you have reviewed the information submitted by the concern under paragraph (f)(5)(i) of this section and have reasonably determined that 100 percent of the Financing proceeds were used for Energy Saving Activities.
(c) * * * Any investment that you use as a basis to seek additional leverage under this paragraph (c) cannot also be used to seek additional leverage under paragraph (d) of this section.
(d)
(2) To determine whether you may request a draw that would cause you to have outstanding Leverage in excess of the amount determined under paragraph (a) of this section:
(i) Determine the cost basis, as reported on your most recent filing of SBA Form 468, of any Energy Saving Qualified Investments in a Smaller Enterprise that individually do not exceed 20% of your Regulatory Capital.
(ii) Calculate the amount that equals 33% of your Leverageable Capital.
(iii) Subtract from your outstanding Leverage the lesser of (d)(2)(i) or (ii).
(iv) If the amount calculated in paragraph (d)(2)(iii) is less than the maximum Leverage determined under paragraph (a) of this section, the difference between the two amounts equals your additional Leverage availability.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding an existing airworthiness directive (AD) for Turbomeca S.A. Arrius 2F turboshaft engines with P3 air pipe (first section) part number (P/N) 0 319 71 918 0, installed. That AD currently requires inspections of the P3 air pipe (first section) and right-hand (RH) rear half-wall for proper clearance and readjustment of the pipe if necessary. This new AD requires the same inspections for installed engines, eliminates readjusting of the P3 air pipe (first section), requires replacement of the RH rear half-wall under certain conditions, and adds an optional terminating action. This AD was prompted by Turbomeca determining that the clearance between the P3 air pipe (first section) and the RH rear half-wall might change during installation of the engine on the helicopter. We are issuing this AD to prevent an uncommanded power loss to flight idle, which could result in an emergency autorotation landing or accident.
This AD is effective May 24, 2012.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of May 24, 2012.
The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in the AD as of August 19, 2009 (74 FR 34221, July 15, 2009).
For service information identified in this AD, contact
You may examine the AD docket on the Internet at
Mark Riley, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7758; fax: 781-238-7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2009-14-11, Amendment 39-15961 (74 FR 34221, July 15, 2009). That AD applies to the specified products. The NPRM published in the
In AD 2009-14-11 (74 FR 34221, July 15, 2009), “Version A” was inadvertently omitted from the reference to Turbomeca Mandatory Service Bulletin No. 319 75 4810, dated May 14, 2008. In this AD, the service bulletin reference reads correctly as “Turbomeca Mandatory Service Bulletin No. 319 75 4810, Version A, dated May 14, 2008.”
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (76 FR 77446, December 13, 2011).
Since we issued the NPRM (76 FR 77446, December 13, 2011) the European Aviation Safety Agency (EASA) superseded AD 2011-0182, dated September 22, 2011, to include a credit for inspections done using Turbomeca Mandatory Service Bulletin (MSB) No. 319 75 4810, Version A, dated May 14, 2008. We added a paragraph for credit for previous action, which states that inspections performed on an installed engine before the effective date of this AD using Turbomeca MSB No. 319 75 4810, Version A, dated May 14, 2008, satisfies the inspection requirements in paragraphs (e)(1)(i) and (e)(1)(ii) of this AD. We also changed the EASA AD reference to EASA AD 2011-0182R1, dated February 3, 2012.
We reviewed the relevant data and determined that air safety and the public interest require adopting the AD with the changes described previously.
We estimate that this AD will affect about 120 Arrius 2F turboshaft engines installed on helicopters of U.S. registry. We also estimate that it will take about 2 work-hours per engine to comply with this AD. The average labor rate is $85 per work-hour. Required parts will cost about $2,565 per engine. Based on these figures, we estimate the cost of the AD on U.S. operators to be $328,200. Our cost estimate is exclusive of 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 have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective May 24, 2012.
This AD supersedes AD 2009-14-11, Amendment 39-15961 (74 FR 34221, July 15, 2009).
This AD applies to Turbomeca S.A. Arrius 2F turboshaft engines with right-hand (RH) rear half-wall, part number (P/N) 0319 99 824 0, installed.
The P3 air pipe (first section) and the RH rear half-wall could rub each other. Rubbing
Comply with this AD within the compliance times specified, unless already done.
(1) For installed engines, within 100 engine hours (EH) after the effective date of this AD:
(i) Inspect the clearance between the P3 air pipe (first section) and the RH rear half-wall for sufficient clearance (0.5 mm or more).
(ii) Use paragraph 2.B.(1) of Turbomeca Mandatory Service Bulletin (MSB) No. 319 75 4810, Version B, dated January 25, 2011 to do the inspection.
(2) Thereafter, repeat the inspections in paragraphs (e)(1)(i) through (e)(1)(ii) of this AD as follows:
(i) At every installation of a RH rear half-wall P/N 0 319 99 824 0 on an installed engine, and
(ii) After every installation or reinstallation of an engine with a RH rear half-wall P/N 0 319 99 824 0 installed.
(3) If the P3 air pipe (first section) or the RH rear half-wall P/N 0 319 99 824 0 is found damaged, then before further flight, replace the damaged part(s) with parts eligible for installation.
(4) If the P3 air pipe (first section) and the RH rear half-wall P/N 0 319 99 824 0 are found contacting each other but are not damaged, replace the RH rear half-wall with a RH rear half-wall eligible for installation.
(5) If both the P3 air pipe (first section) and the RH rear half-wall are found not damaged during the inspections specified in paragraph (e)(1) or (e)(2) of this AD, and the clearance between them is less than 0.5 mm, but they are not contacting each other, then repeat the inspection in paragraphs (e)(1)(i) and (e)(1)(ii) of this AD within every 100 EH.
(6) Installation of RH rear half-wall, P/N 0 319 99 008 0, is terminating action to the inspections required by paragraphs (e)(1), (e)(2), and (e)(5) of this AD.
(7) Once a RH rear half-wall, P/N 0 319 99 008 0, is installed on an engine, do not install a RH rear half-wall, P/N 0 319 99 824 0, on that engine.
For the purpose of this AD, parts eligible for installation is defined as:
(1) An undamaged P3 air pipe (first section).
(2) An undamaged RH rear half-wall P/N 0 319 99 824 0.
(3) A new design RH rear half-wall P/N 0 319 99 008 0.
An inspection performed on an installed engine before the effective date of this AD using Turbomeca MSB No. 319 75 4810, Version A, dated May 14, 2008, satisfies the inspection requirement in paragraphs (e)(1)(i) and (e)(1)(ii) of this AD.
The Manager, Engine Certification Office, may approve alternative methods of compliance for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Mark Riley, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7758; fax: 781-238-7199; email:
(2) European Aviation Safety Agency AD 2011-0182R1, dated February 3, 2012, pertains to the subject of this AD.
(3) For service information identified in this AD, contact. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
You must use the following service information to do the actions required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference (IBR) under 5 U.S.C. 552(a) and 1 CFR part 51 of the following service information.
(1) Turbomeca Mandatory Service Bulletin No. 319 75 4810, Version A, dated May 14, 2008, approved for IBR August 19, 2009 (74 FR 34221, July 15, 2009).
(2) Turbomeca Mandatory Service Bulletin No. 319 75 4810, Version B, dated January 25, 2011, approved for IBR May 24, 2012.
(3) For service information identified in this AD, contact Turbomeca, 40220 Tarnos, France; telephone 33 (0)5 59 74 40 00; telex 570 042; fax 33 (0)5 59 74 45 15.
(4) You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
(5) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for Sikorsky Aircraft Corporation (Sikorsky) Model S-92A helicopters. This AD was prompted by the manufacturer's analysis of engine data that revealed the data was inaccurate in dealing with available above specification engine power margin. This AD requires revising the Operating Limitations section of the Sikorsky Model S-92A Rotorcraft Flight Manual (RFM). The actions are intended to prevent the use of inaccurate engine performance data in calculating maximum gross weight by revising the Operating Limitations section of the RFM.
This AD is effective May 24, 2012.
For service information identified in this AD, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, Mailstop s581a, 6900 Main Street, Stratford, CT 06614; telephone (800) 562-4409; email
John Coffey, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate,12 New England Executive Park, Burlington, MA 01803; telephone (781) 238-7173; email
On October 26, 2011, at 76 FR 66207, the
We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM.
Sikorsky has published various RFM revisions correcting the charts in Parts I and IV of the RFM. If those revisions have previously been incorporated into the RFM, the RFM revision specified by the NPRM would not be required. The RFM revisions, all dated April 9, 2008, are as follows:
We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other products of the same type design and that air safety and the public interest require adopting the AD requirements as proposed, except for minor editorial and formatting changes. These changes will not increase the economic burden on any operator nor increase the scope of the AD.
We estimate that this AD will affect 37 helicopters of U.S. Registry.
We estimate that operators may incur the following costs in order to comply with this AD. It will take about 1 work-hour per helicopter to insert the revisions into the RFM at an average labor rate of $85 per work-hour. Parts costs are not associated with this AD. Based on these figures, we estimate the total cost impact of this AD on U.S. operators to be $3,145.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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 an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Sikorsky Aircraft Corporation (Sikorsky) Model S-92A helicopters, certificated in any category.
This AD defines the unsafe condition as inaccurate above specification engine power margin data. This condition could result in the use of inaccurate engine performance data in calculating maximum gross weight.
This AD becomes effective May 24, 2012.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 90 days:
(1) By making pen and ink changes, insert into the Operating Limitations section, Part 1, Section 1, Weight Limits, of Rotorcraft Flight Manuals (RFMs) SA S92A-RFM-002, -003, -004, -005, and -006 the following limitation “Performance credit for above specification engine power margin is prohibited.”
(2) If the RFM already contains the revisions appropriate for your helicopter as listed in the following Table 1, all dated April 9, 2008, with the correct performance charts, without the performance credit as depicted in the circled area of Figure 1 of this AD, the operating limitation required by paragraph (1) of this AD does not need to be inserted into the RFM.
Previous RFM revisions allowed for the use of above-specification engine power margin as depicted in the circled area of Figure 1 of this AD.
(1) The Manager, Boston Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: John Coffey, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone (781) 238-7173; email
(2) For operations conducted under a Part 119 operating certificate or under Part 91, Subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
Sikorsky Rotorcraft Flight Manuals SA S92A-RFM-002, Revision 8; -003, Revision 7; -004, Revision 6; -005, Revision 5; and -006, Revision 6, all dated April 9, 2008, which are not incorporated by reference, contain additional information about the subject of this AD. For this service information, contact Sikorsky Aircraft
Joint Aircraft Service Component (JASC) Code: 7200, Engine (Turbine/Turboprop).
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. This AD was prompted by a report that the fuel crossfeed valves cannot be controlled when only emergency electrical power is available, that an unwanted configuration of the indication logic for the fuel fire shutoff valve was introduced during production, and that current fuel crossfeed indications are based on selection by the flightcrew instead of actual position of the crossfeed valve actuators. This AD requires modifying the crossfeed valve control and power supply, the crossfeed indication logic and power supply, and the indication logic for the fuel fire shutoff valve; modifying the overhead panel; and for certain airplanes, modifying the transfer logic of the center wing fuel tank. We are issuing this AD to prevent failure of an in-flight engine re-light following a double engine flame-out event, which could result in loss of the airplane.
This AD becomes effective May 24, 2012.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of May 24, 2012.
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
A recent safety review revealed that the fuel crossfeed valves cannot be controlled when only emergency electrical power is available.
This condition, if not corrected, could (in combination with other factors) prevent an in-flight engine re-light following a double engine flame-out event, possibly resulting in loss of the aeroplane.
Another review revealed that an unwanted configuration of the fuel fire shut-off valve indication logic had been introduced during production on a limited number of F28 Mark 0100 aeroplanes.
Furthermore, most of the current fuel crossfeed indications are based on the crossfeed selection made by the flight crew and not on the actual positions of the crossfeed valve actuators. In combination with other factors, the current crossfeed indications may mislead flight crews, possibly resulting in single engine in-flight shutdowns and/or unnecessary precautionary landings.
For the reasons described above, this [EASA] AD requires modifications of the crossfeed valve control and power supply, of the crossfeed indication logic and power supply and of the fuel fire shut-off valve indication logic.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (76 FR 69163, November 8, 2011) or on the determination of the cost to the public.
We have revised the heading for and the wording in paragraph (i) of this AD; this change has not changed the intent of that paragraph. We have also revised the document citations throughout this AD to more clearly identify the documents and their attachments.
We reviewed the relevant data and determined that air safety and the public interest require adopting the AD with the changes described previously—and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (76 FR 69163, November 8, 2011) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 69163, November 8, 2011).
We estimate that this AD will affect 6 products of U.S. registry. We also estimate that it will take about 86 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $4,180 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these 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 this AD to the U.S. operators to be $68,940, or $11,490 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this 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 AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective May 24, 2012.
None.
This AD applies to Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes, certificated in any category, serial numbers 11244 through 11585 inclusive.
Air Transport Association (ATA) of America Code 28: Fuel.
This AD was prompted by a report that the fuel crossfeed valves cannot be controlled when only emergency electrical power is available, that an unwanted configuration of the indication logic for the fuel fire shutoff valve was introduced during production, and that current fuel crossfeed indications are based on selection by the flightcrew instead of actual position of the crossfeed valve actuators. We are issuing this AD to prevent failure of an in-flight engine re-light following a double engine flame-out event, which could result in loss 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 24 months after the effective date of this AD, modify the crossfeed valve control and power supply, the crossfeed indication logic and power supply, and the indication logic for the fuel fire shutoff valve, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-28-047, Revision 3, dated May 2, 2011, including the attachments specified in paragraphs (g)(1) through (g)(39) of this AD (*the issue date is not specified on the drawing).
(1) Fokker Manual Change Notification—Operational Documentation MCNO-F100-060, dated June 10, 2011.
(2) Fokker Manual Change Notification—Operational Document MCNO-F100-049, Revision 1, dated May 30, 2011.
(3) Fokker Drawing D42770, Sheet 6, Issue U*.
(4) Fokker Drawing D42780, Sheet 6, Issue T*.
(5) Fokker Drawing W41074, Sheet 100, Issue GB*.
(6) Fokker Drawing W41074, Sheet 101, Issue FW*.
(7) Fokker Drawing W41194, Sheet 010, Issue J*.
(8) Fokker Drawing W41194, Sheet 011, Issue U*.
(9) Fokker Drawing W41194, Sheet 012, Issue J*.
(10) Fokker Drawing W41194, Sheet 013, Issue U*.
(11) Fokker Drawing W41194, Sheet 014, Issue S*.
(12) Fokker Drawing W41194, Sheet 015, Issue U*.
(13) Fokker Drawing W41194, Sheet 017, Issue Q*.
(14) Fokker Drawing W41194, Sheet 019, Issue S*.
(15) Fokker Drawing W41194, Sheet 020, Issue S*.
(16) Fokker Drawing W41319, Sheet 063, Issue DY*.
(17) Fokker Drawing W41319, Sheet 064, Issue DY*.
(18) Fokker Drawing W41319, Sheet 065, Issue DY*.
(19) Fokker Drawing W41319, Sheet 066, Issue DY*.
(20) Fokker Drawing W41319, Sheet 067, Issue DW*.
(21) Fokker Drawing W41319, Sheet 068, Issue DW*.
(22) Fokker Drawing W41319, Sheet 069, Issue DY*.
(23) Fokker Drawing W41319, Sheet 070, Issue DW*.
(24) Fokker Drawing W41319, Sheet 071, Issue DY*.
(25) Fokker Drawing W41319, Sheet 072, Issue DW*.
(26) Fokker Drawing W41319, Sheet 073, Issue DW*.
(27) Fokker Drawing W41319, Sheet 074, Issue DY*.
(28) Fokker Drawing W46211, Sheet 71, Issue DL, dated April 21, 2009.
(29) Fokker Drawing W46211, Sheet 74, Issue DN, dated July 16, 2010.
(30) Fokker Drawing W46254, Sheet 30, Issue BL, dated March 30, 2009.
(31) Fokker Drawing W46254, Sheet 31, Issue BL, dated March 30, 2009.
(32) Fokker Drawing W46254, Sheet 32, Issue BL, dated March 30, 2009.
(33) Fokker Drawing W46254, Sheet 33, Issue BL, dated March 30, 2009.
(34) Fokker Drawing W46254, Sheet 34, Issue BL, dated March 30, 2009.
(35) Fokker Drawing W46254, Sheet 35, Issue BL, dated March 30, 2009.
(36) Fokker Drawing W46254, Sheet 36, Issue BL, dated March 30, 2009.
(37) Fokker Drawing W46254, Sheet 37, Issue BP, dated March 30, 2009.
(38) Fokker Drawing W59221, Sheet 161, Issue FC, July 9, 2010.
(39) Fokker Drawing W59221, Sheet 162, Issue FC, July 9, 2010.
Before or concurrent with the modification specified in paragraph (g) of this AD, do the applicable actions specified in paragraphs (h)(1) and (h)(2) of this AD:
(1) For all airplanes: Modify the overhead panel (introduce provisions for a modified crossfeed indication) in accordance with the Accomplishment Instructions of Fokker Proforma Service Bulletin SBF100-28-043, Revision 1, dated March 31, 2009, including
(i) Fokker Drawing W41194, Sheet 009, Issue F*.
(ii) Fokker Drawing W41194, Sheet 016, Issue N*.
(iii) Fokker Drawing W41194, Sheet 018, Issue S*.
(iv) Fokker Drawing W59221, Sheet 159, Issue ED, dated October 2, 2009.
(2) For airplanes with serial numbers 11442 through 11585, equipped with the automatic fuel transfer system: Modify the transfer logic of the center wing fuel tank, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-28-052, dated June 15, 2009, including the attachments specified in paragraphs (h)(2)(i) through (h)(2)(vii) of this AD.
(i) Fokker Manual Change Notification—Operational Documentation MCNO-F100-052, dated June 15, 2009.
(ii) Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-126, dated June 15, 2009.
(iii) Fokker Drawing D42126, Sheet 38, Issue AR, dated October 6, 1993.
(iv) Fokker Drawing D42213, Sheet 2, Issue H, dated May 23, 1990.
(v) Fokker Drawing D42220, Sheet 60, Issue V, dated September 1, 1991.
(vi) Fokker Drawing D42220, Sheet 71, Issue AQ, dated June 7, 1993.
(vii) Fokker Drawing D42250, Sheet 23, Issue U, dated April 1993.
This paragraph provides credit for modifications required by paragraphs (g) and (h) of this AD, if the modifications were performed before the effective date of this AD, using the applicable service bulletins specified in paragraphs (i)(1), (i)(2), (i)(3), and (i)(4) of this AD.
(1) Fokker Service Bulletin SBF100-28-043, including Appendix II, dated March 31, 2009.
(2) Fokker Service Bulletin SBF100-28-047, Revision 2, dated August 4, 2010.
(3) Fokker Service Bulletin SBF100-28-047, Revision 1, dated July 22, 2010.
(4) Fokker Service Bulletin SBF100-28-047, dated May 10, 2010.
The following provisions also apply to this AD:
Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2010-0158R1, dated November 8, 2010, and the service bulletins specified in paragraphs (g) and (h) of this AD, for related information.
(1) You must use the following service information to do the actions required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference (IBR) of the following service information under 5 U.S.C. 552(a) and 1 CFR part 51:
(i) Fokker Proforma Service Bulletin SBF100-28-043, Revision 1, dated March 31, 2009, including Appendix II, Revision 2, dated July 22, 2010, and including the following drawings which are attached to Appendix II, Revision 2, dated July 22, 2010 (*the issue date is not specified on the drawing):
(A) Fokker Drawing W41194, Sheet 009, Issue F*.
(B) Fokker Drawing W41194, Sheet 016, Issue N*.
(C) Fokker Drawing W41194, Sheet 018, Issue S*.
(D) Fokker Drawing W59221, Sheet 159, Issue ED, dated October 2, 2009.
(ii) Fokker Service Bulletin SBF100-28-047, Revision 3, dated May 2, 2011, including the following attachments (*the issue date is not specified on the drawing):
(A) Fokker Manual Change Notification—Operational Documentation MCNO-F100-060, dated June 10, 2011.
(B) Fokker Manual Change Notification—Operational Document MCNO-F100-049, Revision 1, dated May 30, 2011.
(C) Fokker Drawing D42770, Sheet 6, Issue U*.
(D) Fokker Drawing D42780, Sheet 6, Issue T*.
(E) Fokker Drawing W41074, Sheet 100, Issue GB*.
(F) Fokker Drawing W41074, Sheet 101, Issue FW*.
(G) Fokker Drawing W41194, Sheet 010, Issue J*.
(H) Fokker Drawing W41194, Sheet 011, Issue U*.
(I) Fokker Drawing W41194, Sheet 012, Issue J*.
(J) Fokker Drawing W41194, Sheet 013, Issue U*.
(K) Fokker Drawing W41194, Sheet 014, Issue S*.
(L) Fokker Drawing W41194, Sheet 015, Issue U*.
(M) Fokker Drawing W41194, Sheet 017, Issue Q*.
(N) Fokker Drawing W41194, Sheet 019, Issue S*.
(O) Fokker Drawing W41194, Sheet 020, Issue S*.
(P) Fokker Drawing W41319, Sheet 063, Issue DY*.
(Q) Fokker Drawing W41319, Sheet 064, Issue DY*.
(R) Fokker Drawing W41319, Sheet 065, Issue DY*.
(S) Fokker Drawing W41319, Sheet 066, Issue DY*.
(T) Fokker Drawing W41319, Sheet 067, Issue DW*.
(U) Fokker Drawing W41319, Sheet 068, Issue DW*.
(V) Fokker Drawing W41319, Sheet 069, Issue DY*.
(W) Fokker Drawing W41319, Sheet 070, Issue DW*.
(X) Fokker Drawing W41319, Sheet 071, Issue DY*.
(Y) Fokker Drawing W41319, Sheet 072, Issue DW*.
(Z) Fokker Drawing W41319, Sheet 073, Issue DW*.
(AA) Fokker Drawing W41319, Sheet 074, Issue DY*.
(BB) Fokker Drawing W46211, Sheet 71, Issue DL, dated April 21, 2009.
(CC) Fokker Drawing W46211, Sheet 74, Issue DN, dated July 16, 2010.
(DD) Fokker Drawing W46254, Sheet 30, Issue BL, dated March 30, 2009.
(EE) Fokker Drawing W46254, Sheet 31, Issue BL, dated March 30, 2009.
(FF) Fokker Drawing W46254, Sheet 32, Issue BL, dated March 30, 2009.
(GG) Fokker Drawing W46254, Sheet 33, Issue BL, dated March 30, 2009.
(HH) Fokker Drawing W46254, Sheet 34, Issue BL, dated March 30, 2009.
(II) Fokker Drawing W46254, Sheet 35, Issue BL, dated March 30, 2009.
(JJ) Fokker Drawing W46254, Sheet 36, Issue BL, dated March 30, 2009.
(KK) Fokker Drawing W46254, Sheet 37, Issue BP, dated March 30, 2009.
(LL) Fokker Drawing W59221, Sheet 161, Issue FC, July 9, 2010.
(MM) Fokker Drawing W59221, Sheet 162, Issue FC, July 9, 2010.
(iii) Fokker Service Bulletin SBF100-28-052, dated June 15, 2009, including the following attachments:
(A) Fokker Manual Change Notification—Operational Documentation MCNO-F100-052, dated June 15, 2009.
(B) Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-126, dated June 15, 2009.
(C) Fokker Drawing D42126, Sheet 38, Issue AR, dated October 6, 1993.
(D) Fokker Drawing D42213, Sheet 2, Issue H, dated May 23, 1990.
(E) Fokker Drawing D42220, Sheet 60, Issue V, dated September 1, 1991.
(F) Fokker Drawing D42220, Sheet 71, Issue AQ, dated June 7, 1993.
(G) Fokker Drawing D42250, Sheet 23, Issue U, dated April 1993.
(2) For Fokker Services B.V. service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands; telephone +31 (0)252-627-350; fax +31 (0)252-627-211; email
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at an NARA facility, call 202-741-6030, or go to
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are publishing a new airworthiness directive (AD) for Bell Helicopter Textron Canada Limited (Bell) Model 206L, 206L-1, 206L-3, and 206L-4 helicopters with certain main rotor blades installed to reduce the life limit of those blades. This AD is prompted by two accidents and the subsequent investigations that revealed that, in each accident, a main rotor blade failed because of fatigue cracking. These actions are intended to prevent failure of the main rotor blade and subsequent loss of control of the helicopter.
This AD becomes effective May 4, 2012 to all persons except those persons to whom it was made immediately effective by Emergency AD No. 2012-02-51, issued on February 1, 2012, which contained the requirements of this AD.
We must receive comments on this AD by June 18, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4, telephone (450) 437-2862 or (800) 363-8023, fax (450) 433-0272, or at
Sharon Miles, Aerospace Engineer, FAA, Rotorcraft Directorate, Regulations and Policy Group, 2601 Meacham Blvd., Fort Worth, Texas 76137, telephone (817) 222-5110, email
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.
Transport Canada Civil Aviation (TCCA) issued TCCA AD No. CF-2011-44R1, on February 1, 2012, to correct this same unsafe condition on the Bell Model 206 L, L-1, L-3, and L-4 helicopters. TCCA advises that there is no reliable inspection method to detect the cracks on these blades before blade failure and has reduced the life limit on all affected blades from 3,600 hours time-in-service (TIS) to 1,400 hours TIS and mandated removal from service of those blades that exceed the new life limit. Bell has determined that the fatigue cracks occurred as a result of the use by a Bell supplier of unapproved manufacturing processes, which have since been corrected, and are limited to a specific range of part numbers and serial numbers.
We issued EAD 2012-02-51 also on February 1, 2012, for Bell Model 206L, 206L-1, 206L-3, and 206L-4 helicopters with certain main rotor blades installed and reduced the life limit on these blades to correct the unsafe condition caused by this fatigue cracking.
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, TCCA, its technical representative, has notified us of the unsafe condition described in the TCCA AD. We are issuing this AD because we evaluated all information provided by the TCCA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.
Bell Helicopter Alert Service Bulletin No. 206L-09-159 Revision A, dated November 13, 2009, describes
This AD requires reducing the life limit from 3,600 hours time-in-service (TIS) to 1,400 hours TIS for certain part-numbered and serial-numbered main rotor blades, revising the life limit in the Airworthiness Limitations section of the Instructions for Continued Airworthiness or maintenance manual, and recording the revised life limit on the component history card or equivalent record.
We estimate that this AD will affect 697 helicopters of U.S. Registry. At an average labor rate of $85 per work-hour, we estimate the following costs:
• Determining the main rotor blades' part and serial numbers will require about 1 work-hour for a cost per helicopter of $85, or $59,245 for the U.S. fleet.
• Replacing an affected main rotor blade will require about 8 work-hours for labor cost of $680 per helicopter and parts costs of about $44,958 per helicopter, for a total cost per helicopter of $45,638.
Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the required corrective actions must be accomplished before further flight, a very short period of time.
Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and contrary to the public interest and that good cause exists for making this amendment effective in less than 30 days.
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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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 an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Bell Helicopter Textron Canada Limited (Bell) Model 206L, 206L-1, 206L-3, and 206L-4 helicopters, certificated in any category, with a main rotor blade part number (P/N) 206-015-001-107, 206-015-001-109, 206-015-001-111, 206-015-001-115, 206-015-001-117, 206-015-001-119, or 206-015-001-121, and a main rotor blade serial number listed in Table 1 of this AD.
This AD defines the unsafe condition as fatigue cracking of a main rotor blade. This condition could result in failure of the main rotor blade and subsequent loss of control of the helicopter.
This AD becomes effective May 4, 2012 to all persons except those persons to whom it was made immediately effective by Emergency AD No. 2012-02-51, issued on February 1, 2012.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Before further flight, reduce the life limit of the main rotor blades with a serial number listed in Table 1 of this AD from 3,600 hours time-in-service (TIS) to 1,400 hours TIS; revise the life limit in the Airworthiness Limitations section of the Instruction for Continued Airworthiness or maintenance manual; and record the revised life limit on the component history card or equivalent record.
(2) Before further flight, remove from service any main rotor blade which has accumulated 1,400 or more hours TIS.
Special flight permits are prohibited.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Sharon Miles, Aerospace Engineer, FAA, Rotorcraft
(2) For operations conducted under a Part 119 operating certificate or under Part 91, Subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
(1) Bell Helicopter Alert Service Bulletin (ASB) No. 206L-09-159 Revision A, dated November 13, 2009, which is not incorporated by reference, contains additional information about the subject of this AD. For this service information, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4, telephone (450) 437-2862 or (800) 363-8023, fax (450) 433-0272, or at
(2) The subject of this AD is addressed in Transport Canada Civil Aviation AD No. CF-2011-44R1, dated February 1, 2012.
Joint Aircraft Service Component (JASC) Code: 6210, Main rotor blades.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations regarding the reporting requirements for interest that relates to deposits maintained at U.S. offices of certain financial institutions and is paid to certain nonresident alien individuals. These regulations will affect commercial banks, savings institutions, credit unions, securities brokerages, and insurance companies that pay interest on deposits.
Kathryn Holman, (202) 622-3840 (not a toll free number).
The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1725. The collection of information in these proposed regulations is in § 1.6049-4(b)(5)(i) and § 1.6049-6(e)(4)(i) and (ii). The collection of information is mandatory and the respondents are commercial banks, savings institutions, credit unions, securities brokerages, and insurance companies that maintain deposit accounts for nonresident alien individuals.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
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. Information collected under these regulations will be return information as defined in 26 U.S.C. 6103. Tax returns and return information are confidential as required by 26 U.S.C. 6103.
On January 7, 2011, the Treasury Department and the IRS published a notice of proposed rulemaking (REG 146097-09) (the 2011 proposed regulations) in the
Written comments were received by the Treasury Department and the IRS in response to the 2011 proposed regulations. A public hearing on the 2011 proposed regulations was held on May 18, 2011, at which further comments were received. All comments were considered and are available for public inspection at
The reporting required by these regulations is essential to the U.S. Government's efforts to combat offshore tax evasion for several reasons. First, it ensures that the IRS can, in appropriate circumstances, exchange information relating to tax enforcement with other jurisdictions. In order to ensure that U.S. taxpayers cannot evade U.S. tax by hiding income and assets offshore, the United States must be able to obtain information from other countries regarding income earned and assets held in those countries by U.S. taxpayers. Under present law, the measures available to assist the United States in obtaining this information include both treaty relationships and statutory provisions. The effectiveness of these measures depends significantly, however, on the United States' ability to reciprocate.
The United States has constructed an expansive network of international agreements, including income tax or other conventions and bilateral agreements relating to the exchange of tax information (collectively referred to as information exchange agreements), which provide for the exchange of information related to tax enforcement under appropriate circumstances. These information exchange relationships are based on cooperation and reciprocity. A jurisdiction's willingness to share information with the IRS to combat offshore tax evasion by U.S. taxpayers depends, in large part, on the ability of the IRS to exchange information that will assist that jurisdiction in combating offshore tax evasion by its own residents. These regulations, by requiring reporting of deposit interest to the IRS, will ensure that the IRS is in a position to exchange such information reciprocally with a treaty partner when it is appropriate to do so.
Second, in 2010, Congress supplemented the established network of information exchange agreements by enacting, as part of the Hiring Incentives to Restore Employment Act of 2010 (Pub. L. 111-147), provisions commonly known as the Foreign Account Tax Compliance Act (FATCA) that require overseas financial institutions to identify U.S. accounts and report information (including interest payments) about those accounts to the IRS. In many cases, however, the implementation of FATCA will require the cooperation of foreign governments in order to overcome legal impediments to reporting by their resident financial institutions. Like the United States, those foreign governments are keenly interested in addressing offshore tax evasion by their own residents and need tax information from other jurisdictions, including the United States, to support their efforts. These regulations will facilitate intergovernmental cooperation on FATCA implementation by better enabling the IRS, in appropriate circumstances, to reciprocate by exchanging information with foreign governments for tax administration purposes.
Finally, the reporting of information required by these regulations will also directly enhance U.S. tax compliance by making it more difficult for U.S. taxpayers with U.S. deposits to falsely claim to be nonresidents in order to avoid U.S. taxation on their deposit interest income.
Under the international standard for transparency and exchange of information, which is reflected in the Organisation for Economic Cooperation and Development (OECD) Model Agreement on Exchange of Information on Tax Matters, the OECD Model Tax Convention, and the United Nations Model Double Tax Convention between Developed and Developing Countries, exchange of tax information cannot be limited by domestic bank secrecy laws or the absence of a specific domestic tax interest in the information to be exchanged. Accordingly, under this global standard a country cannot refuse to share tax information based on domestic laws that do not require banks to share the information. In addition, under the global standard, a country cannot opt out of information exchange based on the fact that the country does not itself need the information to enforce its own tax rules. Thus, even countries that do not impose income taxes, and therefore do not have tax enforcement concerns, have entered into information exchange agreements to provide information about the accounts of nonresidents.
Some comments on the 2011 proposed regulations expressed concerns that the information required to be reported under those regulations might be misused. For example, comments expressed concern that deposit interest information may be shared with a country that does not have laws in place to protect the confidentiality of the information exchanged or that would use the information for purposes other than the enforcement of its tax laws. These comments further suggested that these concerns could affect nonresident alien investors' decisions about the location of their deposits.
The Treasury Department and the IRS believe that the concerns raised by the comments are addressed by existing legal limitations and administrative safeguards governing tax information exchange. As discussed herein, information reported pursuant to these regulations will be exchanged only with foreign governments with which the United States has an agreement providing for the exchange and when certain additional requirements are satisfied. Even when such an agreement exists, the IRS is not compelled to exchange information, including information collected pursuant to these regulations, if there is concern regarding the use of the information or other factors exist that would make exchange inappropriate.
First, information reported pursuant to these regulations is return information under section 6103. Section 6103 imposes strict confidentiality rules with respect to all return information. Moreover, section 6103(k)(4) allows the IRS to exchange return information with a foreign government only to the extent provided in, and subject to the terms and conditions of an information exchange agreement. Thus, the IRS can share the information reported under these regulations only with foreign governments with which the United States has an information exchange agreement. Absent such an agreement, the IRS is statutorily barred from sharing return information with another country, and these regulations cannot and do not change that rule.
Second, consistent with established international standards, all of the information exchange agreements to which the United States is a party require that the information exchanged under the agreement be treated and protected as secret by the foreign government. In addition, information exchange agreements generally prohibit foreign governments from using any information exchanged under such an agreement for any purpose other than the purpose of administering, collecting, and enforcing the taxes covered by the agreement. Accordingly, under these agreements, neither country is permitted to release the information shared under the agreement or use it for any other law enforcement purposes.
Third, consistent with the international standard for information exchange and United States law, the United States will not enter into an information exchange agreement unless the Treasury Department and the IRS are satisfied that the foreign government has strict confidentiality protections. Specifically, prior to entering into an information exchange agreement with another jurisdiction, the Treasury Department and the IRS closely review the foreign jurisdiction's legal framework for maintaining the confidentiality of taxpayer information. In order to conclude an information exchange agreement with another country, the Treasury Department and the IRS must be satisfied that the foreign jurisdiction has the necessary legal safeguards in place to protect exchanged information and that adequate penalties apply to any breach of that confidentiality.
Finally, even if an information exchange agreement is in effect, the IRS will not exchange information on deposit interest or otherwise with a country if the IRS determines that the country is not complying with its obligations under the agreement to protect the confidentiality of information and to use the information solely for collecting and enforcing taxes covered by the agreement. The IRS also will not exchange any return information with a country that does not impose tax on the income being reported because the information could not be used for the enforcement of tax laws within that country.
In addition, the IRS has options regarding the appropriate form of exchange. For example, the IRS might exchange information with another jurisdiction only upon specific request. In the case of specific exchange requests, the IRS evaluates the requesting country's current practices with respect to information confidentiality. The IRS also requires the requesting country to explain the intended permitted use of the information and justify the relevance of that information to the permitted use.
The Treasury Department and the IRS believe that the legal and administrative safeguards described in the preceding paragraphs regarding the use of information collected under these regulations should adequately address the concerns identified by the comments and, therefore, these regulations should not significantly impact the investment and savings decisions of the vast majority of nonresidents who are aware of and understand these safeguards and existing law and practice. Nevertheless, to enhance awareness and further address concerns, these final regulations revise the 2011 proposed regulations to require reporting only in the case of interest paid to a nonresident alien individual resident in a country with which the United States has in effect an information exchange agreement pursuant to which the United States agrees to provide, as well as receive, information and under which the competent authority is the Secretary of the Treasury or his delegate.
For this purpose, the Treasury Department and the IRS will publish a Revenue Procedure contemporaneously with these final regulations specifically identifying the countries with which the United States has in force such an information exchange agreement. The Revenue Procedure will be updated as appropriate. With respect to any calendar year, payors will only be required to report interest on deposits maintained at an office within the United States and paid to a nonresident alien individual who is a resident of a country identified in the Revenue Procedure as of December 31 of the prior calendar year as being a country with which the United States has in effect such an information exchange agreement. To address any potential burden associated with reporting on this basis, the final regulations provide that for any year for which the information return under § 1.6049-4(b)(5) is required, a payor may elect to report interest payments to all nonresident alien individuals.
As previously discussed, the identification of a country as having an information exchange agreement with the United States does not necessarily mean that the information collected under these regulations will be reported to such foreign jurisdiction. As an additional measure to further increase awareness among concerned nonresidents regarding the IRS' use of information collected under these regulations, the Revenue Procedure also will include a second list identifying the countries with which the Treasury Department and the IRS have determined that it is appropriate to have an automatic exchange relationship with respect to the information collected under these regulations. This determination will be made only after further assessment of a country's confidentiality laws and practices and the extent to which the country is willing and able to reciprocate.
In addition, in response to comments, and given the information exchange practices described in the preceding paragraphs and the information that will be available in the Revenue Procedure, these final regulations eliminate the requirement in the 2011 proposed regulations for financial institutions to include in the information statement provided to nonresident alien individuals a statement informing the individual that the information may be furnished to the government of the country where the recipient resides. In addition, these final regulations clarify that a payor or middleman may rely on the permanent residence address provided on a valid Form W-8BEN, “Beneficial Owners Certificate of Foreign Status for U.S. Tax Withholding”, for purposes of determining the country of residence of a nonresident alien to whom reportable interest is paid unless the payor or middleman knows or has reason to know that such documentation of the country of residence is unreliable or incorrect. The final regulations also modify § 31.3406(g)-1 of the proposed regulations to clarify that, consistent with the backup withholding rules generally, a payment of interest described in § 1.6049-8(a) is not subject to withholding under section 3406 if the payor may treat the payee as a foreign person, without regard to whether the payor reported such interest (although a payor may be subject to penalties if it fails to report as required). As under the prior regulations requiring the reporting of interest paid to Canadian non-resident alien individuals, the final regulations define interest subject to reporting to mean interest paid on deposits as defined under section 871(i)(2)(A) (including deposits with persons carrying on a banking business, deposits with certain savings institutions, and certain amounts held by insurance companies under agreements to pay interest thereon).
Some comments expressed the view that the Treasury Department and the IRS lack the authority to require the reporting required under the 2011 proposed regulations, or that the 2011 proposed regulations are contrary to Congressional intent. The relevant statutory provisions expressly contemplate that the Treasury Department and the IRS have authority to require reporting on deposit interest paid to nonresidents. Section 6049(a) provides generally for reporting with respect to interest payments. Section 6049(b)(2)(B) and (5) provides that, except to the extent otherwise provided in regulations, reportable interest does not include interest paid to nonresident alien individuals on deposits described in section 871(i)(2)(A). Section 6049(b)(2)(B) and (5) thus provides express authority for the Treasury Department and the IRS to issue regulations requiring reporting of such interest.
It has been determined that these regulations are not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.
When an agency promulgates a final rule, the Regulatory Flexibility Act, 5 U.S.C. chapter 6 (RFA), requires the agency to prepare a final regulatory flexibility analysis describing the impact of the final rule on small entities. 5 U.S.C. 604. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing a regulatory flexibility analysis, if the final rule is not expected to have a significant economic impact on a substantial number of small entities.
These regulations impose a collection of information, and thus, the Regulatory Flexibility Act (5 U.S.C. chapter 6) applies. It is hereby certified that the collection of information contained in these regulations will not have a
The preamble to the 2011 proposed regulations sets forth an analysis of the number of small entities that may be required to report under these regulations. Although this rule may affect a substantial number of small entities, the IRS has determined that the impact on entities affected by these final regulations will not be significant.
Some comments expressed concern that the regulations would impose a new administrative burden on U.S. financial institutions. In addition, some comments objected that collecting and reporting this information imposes burdens on certain types of financial institutions, including community banks and banks in certain states that have a larger percentage of customers who are nonresident alien individuals.
The Treasury Department and the IRS disagree. Under existing law, all U.S. financial institutions have responsibilities to withhold on and report with respect to depositors who are U.S. citizens, U.S. resident individuals, and Canadian resident individuals, and have developed the systems to perform such withholding and reporting.
All nonresident alien individual account holders who maintain accounts in the United States are already required to complete a Form W-8BEN, declaring their non-U.S. status and the country in which they reside. U.S. financial institutions can use their existing W-8 information to produce Form 1042-S disclosures for the relevant nonresident alien individual account holders. Nearly all U.S. banks and other financial institutions have automated systems to produce Form 1099-INT, “Interest Income”, for U.S. accountholders and Form 1042-S, “Foreign Person's U.S. Source Income Subject to Withholding”, for Canadian accountholders. As a result, the information collection requirements in these regulations build on reporting and information collection systems familiar to and currently used by U.S. financial institutions, including small business entities. The amount of time required to complete the Form 1042 and Form 1042-S is minimal, and the statement that is required to be collected is brief. Accordingly, it should not be a significant burden to adapt those systems to report with respect to depositors who are resident in other countries with which the United States has an information exchange agreement. Therefore, a regulatory flexibility analysis is not required.
Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses. The Chief Counsel for Advocacy of the Small Business Administration did not comment on the notice of proposed rulemaking.
The principal author of the regulations is Kathryn Holman, Office of Associate Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Income taxes, Penalties, Pensions, Railroad retirement, Reporting and recordkeeping requirements, Social Security, Unemployment compensation.
Accordingly, 26 CFR parts 1 and 31 are amended as follows:
26 U.S.C. 7805 * * *
(b) * * *
(5)
(ii)
The revisions read as follows:
(b) * * *
(12) * * * This paragraph (b)(12) does not apply to interest paid on or after January 1, 2013, to a nonresident alien individual to the extent provided in § 1.6049-8.
(f) * * * Original issue discount on an obligation (including an obligation with a maturity of not more than six months from the date of original issue) held by a nonresident alien individual or foreign corporation is interest described in paragraph (b)(1)(vi)(A) or (B) of this section and, therefore is not interest subject to reporting under section 6049 unless it is described in § 1.6049-8(a) (relating to deposit interest paid on or after January 1, 2013, to certain nonresident alien individuals).
The additions and revisions read as follows:
(e) * * *
(4)
(5)
(a)
26 U.S.C. 7805 * * *
(d)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce various safety zones in the Captain of the Port New York Zone on specified dates and times. This action is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. During the enforcement period, no person or vessel may enter the safety zone without permission of the Captain of the Port (COTP).
The regulations for the safety zones described in 33 CFR 165.160 will be enforced on the dates and times listed in the table below.
If you have questions on this notice, call or email Ensign Kimberly Farnsworth, Coast Guard; telephone 718-354-4163, email
The Coast Guard will enforce the safety zones listed in 33 CFR 165.160 on the specified dates and times as indicated in Table 1 below. If the event is delayed by inclement weather, the regulation will be enforced on the rain date indicated in Table 1 below. These regulations were published in the
Under the provisions of 33 CFR 165.160, a vessel may not enter the regulated area unless given express permission from the COTP or the designated representative. Spectator vessels may transit outside the regulated area but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the
Postal Service
Final rule.
This rule establishes the responsibility of the providers of Postage Evidencing Systems (PES) to notify the U.S. Postal Service® of any cyber attacks to their systems.
This rule is effective May 21, 2012.
Mail or deliver written comments to the Manager, Payment Technology, U.S. Postal Service, 475 L'Enfant Plaza SW., Room 3436, Washington, DC 20260-0911. Copies of all written comments will be available for inspection and photocopying between 9 a.m. and 4 p.m., Monday through Friday, at the Payment Technology office.
Marlo Kay Ivey, Business Programs Specialist, Payment Technology, U.S. Postal Service, at 202-268-7613.
Providers currently must disclose all findings or results of any testing concerning the security or revenue protection features, capabilities, or failings of any PES, as well as all potential security weaknesses or methods of tampering with the PES. This rule applies the same standard to cyber attacks against the provider's systems.
Postal Service.
Accordingly, for the reasons stated, 39 CFR Part 501 is amended as follows:
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 410, 2601, 2605, Inspector General Act of 1978, as amended (Pub. L. 95-452, as amended); 5 U.S.C. App. 3.
(b) * * *
(3) Cyber attacks that include, but are not limited to, gaining unauthorized access to digital systems for purposes of misappropriating assets or sensitive information, corrupting data, or causing operational disruption. Cyber attacks may also be carried out in a manner that does not require gaining unauthorized access, such as by causing denial-of-service attacks on Web sites. Cyber attacks may be carried out by third parties or insiders using techniques that range from highly sophisticated efforts to electronically circumvent network security or overwhelm Web sites to more traditional intelligence gathering and social engineering aimed at obtaining information necessary to gain access. Cyber security risk disclosures reported must adequately describe the nature of the material risks and specify how each risk affects the Postage Evidencing System.
Environmental Protection Agency (EPA).
Final rule; technical amendment.
EPA is amending its regulations to reflect a change in address for EPA's Region 4 office as well as the state agencies for Georgia,
This final rule is effective April 19, 2012.
Lisa McKinley, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960-8960. The telephone number is (404) 562-9403. Ms. McKinley can also be reached via electronic mail at
EPA is amending its regulations in 40 CFR parts 52, 60 and 61 to reflect a change in the address for EPA's Region 4 office as well as the state agencies for Georgia, Mississippi, North Carolina and local agencies for Forsyth County, Mecklenburg County Land Use & Environmental Services Agency, and Western North Carolina Regional Air Quality Agency. This technical amendment merely updates and corrects the address for EPA's Region 4 office as well as the state and local agencies. This action is editorial in nature and is intended to provide accuracy and clarity to the Agency's regulations. Consequently, EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest. “Public comment is “unnecessary” and “contrary to the public interest” since the address for EPA's Region 4 office as well as the state and local agencies has changed and immediate notice in the CFR benefits the public by updating citations.
This final rule implements technical amendments to 40 CFR parts 52, 60 and 61 to reflect a change in the address for EPA's Region 4 office as well as the state and local agencies. It does not otherwise impose or amend any requirements. Consequently, under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. The rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act (CRA), 5 U.S.C. 801
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Ammonium sulfate plants, Batteries, Beverages, Carbon monoxide, Cement industry, Chemicals, Coal, Copper, Dry cleaners, Electric power plants, Fertilizers, Fluoride, Gasoline, Glass
Environmental protection, Air pollution control, Arsenic, Asbestos, Benzene, Beryllium, Hazardous substances, Mercury, Radionuclides, Radon, Reporting and recordkeeping requirements, Uranium, Vinyl chloride.
40 CFR parts 52, 60 and 61 are amended as follows:
42 U.S.C. 7401.
(a) All applications and other information required pursuant to § 52.21 of this part from sources located in the State of Georgia shall be submitted to the State agency, Georgia Department of Natural Resources, Environmental Protection Division, Air Protection Branch, 4244 International Parkway, Suite 120, Atlanta, Georgia 30354 rather than to EPA's Region 4 office.
(b) [Reserved]
(a) All applications and other information required pursuant to § 52.21 of this part from sources located or to be located in the State of Mississippi shall be submitted to the State agency, Hand Deliver or Courier: Mississippi Department of Environmental Quality, Office of Pollution Control, Air Division, 515 East Amite Street, Jackson, Mississippi 39201; Mailing Address: Mississippi Department of Environmental Quality, Office of Pollution Control, Air Division, P.O. Box 2261, Jackson, Mississippi 39225, rather than to EPA's Region 4 office.
(b) [Reserved]
(c) All applications and other information required pursuant to § 52.21 of this part from sources located or to be located in the State of North Carolina shall be submitted to the State agency, North Carolina Department of Environment and Natural Resources, Division of Air Quality, 1641 Mail Service Center, Raleigh, North Carolina 27699-1641 or local agencies, Forsyth County Environmental Affairs, 201 North Chestnut Street, Winston-Salem, North Carolina 27101 or Forsyth County Air Quality Section, 537 North Spruce Street, Winston-Salem, North Carolina 27101; Mecklenburg County Land Use & Environmental Services Agency, Air Quality, 700 N. Tryon St., Suite 205, Charlotte, North Carolina 28202-2236; Western North Carolina Regional Air Quality Agency, 49 Mount Carmel Road, Asheville, North Carolina 28806, rather than to EPA's Region 4 office.
42 U.S.C. 7401.
The revisions read as follows:
(a) * * *
Region 4 (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee), Director, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, 61 Forsyth St. SW., Suite 9T43, Atlanta, Georgia 30303-8960.
(b) * * *
(L) State of Georgia: Georgia Department of Natural Resources, Environmental Protection Division, Air Protection Branch, 4244 International Parkway, Suite 120, Atlanta, Georgia 30354.
(Z) State of Mississippi: Hand Deliver or Courier: Mississippi Department of Environmental Quality, Office of Pollution Control, Air Division, 515 East Amite Street, Jackson, Mississippi 39201, Mailing Address: Mississippi Department of Environmental Quality, Office of Pollution Control, Air Division, P.O. Box 2261, Jackson, Mississippi 39225.
(II) State of North Carolina: North Carolina Department of Environment and Natural Resources, Division of Air Quality, 1641 Mail Service Center, Raleigh, North Carolina 27699-1641 or local agencies, Forsyth County Environmental Affairs, 201 North Chestnut Street, Winston-Salem, North Carolina 27101 or Forsyth County Air Quality Section, 537 North Spruce Street, Winston-Salem, North Carolina 27101; Mecklenburg County Land Use & Environmental Services Agency, Air Quality, 700 N. Tryon St., Suite 205, Charlotte, North Carolina 28202-2236; Western North Carolina Regional Air Quality Agency, 49 Mount Carmel Road, Asheville, North Carolina 28806.
42 U.S.C. 7401.
The revisions read as follows:
(a) * * *
Region 4 (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee), Director, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, 61 Forsyth St. SW., Suite 9T43, Atlanta, Georgia 30303-8960.
(b) * * *
(L) State of Georgia: Georgia Department of Natural Resources, Environmental Protection Division, Air Protection Branch, 4244 International Parkway, Suite 120, Atlanta, Georgia 30354.
(Z) State of Mississippi: Hand Deliver or Courier: Mississippi Department of Environmental Quality, Office of Pollution Control, Air Division, 515 East Amite Street, Jackson, Mississippi 39201, Mailing Address: Mississippi Department of Environmental Quality, Office of Pollution Control, Air Division, P.O. Box 2261, Jackson, Mississippi 39225.
(II) State of North Carolina: North Carolina Department of Environment and Natural Resources, Division of Air Quality, 1641 Mail Service Center, Raleigh, North Carolina 27699-1641 or local agencies, Forsyth County Environmental Affairs, 201 North Chestnut Street, Winston-Salem, North Carolina 27101 or Forsyth County Air Quality Section, 537 North Spruce Street, Winston-Salem, North Carolina 27101; Mecklenburg County Land Use & Environmental Services Agency, Air Quality, 700 N. Tryon St., Suite 205, Charlotte, North Carolina 28202-2236; Western North Carolina Regional Air Quality Agency, 49 Mount Carmel Road, Asheville, North Carolina 28806.
Environmental Protection Agency (EPA).
Final rule; correction.
This document corrects certain preamble and regulatory text. This action corrects typographical errors, such as cross-reference errors and certain preamble text that is not consistent with the final regulatory text, which published in the
For the NESHAP action: Mr. William Maxwell, Energy Strategies Group, Sector Policies and Programs Division, (D243-01), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; Telephone number: (919) 541-5430; Fax number (919) 541-5450; email address:
This document corrects certain preamble and regulatory text. It is proper to issue this final rule correction without notice and comment. Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this action final without prior proposal and opportunity for comment because the changes to the rule are minor technical corrections, are noncontroversial, and do not substantively change the agency actions taken in the final rule. Notice and comment is unnecessary, because these changes do not affect the rights or obligations of outside parties, and do not alter the substantive requirements of the code of federal regulations (CFR), except to the extent that one regulatory provision included an inadvertent typographical error that EPA must amend to align with the plain text of the Clean Air Act (CAA). We find that this constitutes good cause under 5 U.S.C. 553(b)(B).The corrections can be categorized generally as follows: Correction of typographical errors (e.g., cross-reference errors) and correction of certain preamble text that does not conform to the final regulatory text. Below, we identify each technical correction to the preamble and regulatory text.
1. Table 5 on page 9368 is corrected to read as follows:
The output-format values for the antimony and beryllium emission limits for existing solid oil-derived fuel-fired units were incorrect as published in the preamble to the final rule (i.e., the incorrect “8.0E-3 lb/GWh” instead of the correct “7.0E-3 lb/GWh” for antimony and the incorrect “6.0E-4 lb/GWh” instead of the correct “5.0E-4 lb/GWh” for beryllium). In addition, the format of the input- and output-based lead emissions limits for existing IGCC EGUs was incorrect as published in the preamble to the final rule (i.e., the incorrect “1.9E+2 lb/MMBtu or 1.8E0 lb/MWh” instead of the correct “1.9E+2 lb/TBtu or 1.8E0 lb/GWh”). In each case, the correct values are indicated in the spreadsheets found in docket entry EPA-HQ-OAR-2009-0234-20132 and the published values were transcription errors. This same correction is made to the regulatory text later in this document.
2. On page 9401, column 1, first full paragraph, the fourth sentence is corrected to read as follows:“This subcategory applies only to oil-fired EGUs that act as peaking units, as they generally address reliability issues.”
We are revising this sentence because the original sentence in the preamble to the final rule stated: “This subcategory applies only to oil-fired EGUs
3. The definition of “Boiler operating day” in § 60.41Da Definitions, the date “February 29, 2005” is corrected to read “March 1, 2005” because there was no February 29 in 2005.
4. Section 60.49Da(a)(4)(i) is revised to correct the typographical error related to the incorrect cross reference to section 60.51a(d) which does not exist. The correct cross reference is to section 60.51Da(d).
5. Sections 63.9982(a)(1) and (a)(2) are revised to include the “§” symbol which was inadvertently left off of the references to section 63.10042 (i.e., “63.10042” vs. the correct “§ 63.10042”.
6. Section 63.9982(d) is revised to correct the typographical error which left out the word “in” from the phrase “* * * change in process * * *”
7. Section 63.9985(a)(2) is revised to remove the words “or modification.” We erroneously included this language in the final rule definition of a new source for purposes of the NESHAP. The language included in the final rule comes from the CAA section 111 statutory definition for “new source,” instead of the CAA section 112 definition of “new source.” CAA section 112 does not include “modified” sources in the definition of new sources, and, thus, the inclusion of such sources in the definition was an inadvertent drafting error.
8. Section 63.9991(c) is revised to remove the term “coal-fired” from the phrase “coal-fired EGU.” This section expressly references Tables 1 and 2 of this subpart and those tables include alterative sulfur dioxide (SO
9. Section 63.10000(c)(1) is revised to include integrated gasification combined cycle (IGCC) EGUs among the subcategories listed. Section 63.10000(c) addresses initial performance testing. IGCC EGUs are included in the requirements of section 63.10000(c)(1)(i) (which deals with initial performance testing for purposes of determining low emitting EGU (LEE) status) and, thus, the omission of IGCC EGUs from the introductory language in section 63.10000(c)(1) was an inadvertent error.
10. Section 63.10000(c)(1)(i)(B) is revised to correct a typographical error (“* * * solid oil-derived fuel-fired * * *” rather than the incorrect “* * * solid oil-fired fuel-fired * * *”).
11. Section 63.10000(c)(2)(iv) is revised to correct a typographical error and include “you” in the phrase “* * * but you must * * *”
12. Section 63.10000(d)(5)(i) is revised to correct the typographical error of including the incorrect term “CEMS” rather than the correct term “CMS.” The text of sections 63.10000(d)(2)(i), (3), and (4) all refer to the broader “CMS” (which includes both continuous parameter monitoring system (CPMS) and continuous emission monitoring system (CEMS)). Thus, use of the narrower CEMS in section 63.10000(d)(5)(i) was an inadvertent error. Further, the term “CPMS” in the last sentence of the section is corrected to read “PM CPMS” consistent with section 63.10010(h), which section is referenced in section 63.10000(d)(5)(i) and specifically addresses PM CPMS.
13. Section 63.10000(d)(5)(iv) is revised to use language consistent with section 63.8(d) (changing “ongoing data quality assurance procedures” to “quality control program”), as section 63.8 is cited in this section. The title of section 63.8(d) is “quality control program” and the phrase “ongoing data quality assurance procedures” does not appear in that provision.
14. Section 63.10000(f) is revised to correct a typographical error by replacing “distributions system” with the correct “distribution system.”
15. Section 63.10005(b)(2) is revised to correct a typographical error by changing “* * * valid data CMS data * * *” to “valid CMS data”.
16. Section 63.10005(d)(1) is revised to correct a typographical error (the correct “* * * Table 1 or 2 to this * * *” rather than the incorrect “* * * Table 1 or 2 of this * * *” in two places).
17. Section 63.10005(d)(4)(ii) is revised to correct the typographical error associated with the use of “corresponding” rather than the correct word “corresponds.”
18. Sections 63.10005(h)(3)(iii)(C)(
19. Section 63.10006(a) is revised to correct a typographical error. Specifically, we inadvertently omitted the word “fired” from the phrase “* * * solid oil-derived fuel- and * * *” The phrase should read “* * * solid oil-derived fuel-fired and * * *”
20. Section 63.10007(c) is revised to correct the typographical error associated with the incorrect cross reference to the non-existent section 63.10011(b)(5). The correct cross reference is to section 63.10011(b).
21. Section 63.10009(g) is revised to correct the typographical error related to the incorrect cross reference to sections 63.10009(f)(1) through (3). Section 63.10009(g) deals with determining weighted average emission rates, but section 63.10009(f) deals with demonstrating eligibility for an emissions averaging group and is, thus, an incorrect cross reference. The correct cross reference is to sections 63.10009(g)(1) through (2), which sections provide specific direction on the manner in which sources establish weighted average emission rates.
22. Section 63.10009(j)(2)(i)(A) is revised to correct the typographical error related to the incorrect cross reference to section 63.10009(h)(1), which does not exist. The correct cross reference is to section 63.10009(j)(1).
23. Sections 63.10010(a)(6)(iii) and (iv) are revised to correct the typographical errors related to the incorrect cross references to sections 63.10010(a)(5)(iii)(B) and (a)(5)(iii)(C), which do not exist. The correct cross references are to sections 63.10010(a)(6)(ii) and (iii), respectively.
24. Sections 63.10010(g), 63.10011(c)(1), 63.10021(b), and 63.10022(a)(1) are revised to correct the inadvertent omission of the alternate 90-day averaging period. The provisions as included in the final rule only referred to the 30-day averaging periods that are generally utilized for determining compliance with the final standards; however, as indicated in section 63.10009(a)(2), sources are also authorized to use the alternate 90-day averaging period for certain standards when emissions averaging is employed at a facility.
25. Section 63.10020(d) is revised to correct a typographical error by replacing “of” with “from” in the phrase “* * * deviation from the * * *”
26. Section 63.10030(e)(7)(i) is revised to correct the typographical error related to the incorrect cross reference to section 63.10006(i). Section 63.10006(i) addresses the tune-up requirement, but section 63.10030(e)(7)(i) concerns LEE requirements, not tune-up requirements. The correct cross reference is to section 63.10006(b), which addresses the reduced performance (i.e., stack) testing for LEE, which allows a source to test every 3 years as discussed in section 63.10030(e)(7)(i).
27. Section 63.10031(c)(4) is revised to correct an incorrect statement. The final rule does not require annual inspections; thus, the “annual” has been replaced with “every 36 (or 48) months” to be consistent with other rule text.
28. The definitions of “Non-mercury (Hg) HAP metals” and “Oil” in section 63.10042 are revised to correct the typographical error that did not separate the two definitions in the published rule.
29. Table 2 to Subpart UUUUU of Part 63 is revised to correct the typographical errors related to the lack of a superscript for footnotes (“
In addition, the format of the input- and output-based lead emissions limits for “3. IGCC unit” was incorrect as published (i.e., the incorrect “1.9E+2 lb/MMBtu or 1.8E0 lb/MWh” instead of the correct “1.9E+2 lb/TBtu or 1.8E0 lb/GWh”). Further, the output-format values for the antimony and beryllium emission limits for “6. Solid oil-derived fuel-fired unit” were incorrect as published (i.e., the incorrect “8.0E-3 lb/GWh” instead of the correct “7.0E-3 lb/GWh” for antimony and the incorrect “6.0E-4 lb/GWh” instead of the correct “5.0E-4 lb/GWh” for beryllium). In each case, the correct values are indicated in the spreadsheets found in docket entry EPA-HQ-OAR-2009-0234-20132 and the published values are transcription errors.
30. For the reasons described in Paragraph 24 above, Table 7 to Subpart UUUUU of Part 63 is revised to address the inadvertent omission of the alternate 90-day averaging period that is available.
31. For the reasons described in Paragraph 24 above, Paragraphs 6.2.1.4 and 6.2.2.3 to Appendix A to Subpart UUUUU of Part 63 are revised to address the inadvertent omission of the alternate 90-day averaging period that is available.
32. Paragraph 7.2.4 to Appendix A to Subpart UUUUU of Part 63 is revised to correct the typographical error related to the incorrect cross reference to paragraphs 7.1.10.1 through 7.1.10.7; these paragraphs do not exist, however. The correct cross reference is paragraphs 7.1.9.1 through 7.1.9.7.
33. Paragraph 7.2.5.3.4 to Appendix A to Subpart UUUUU of Part 63 is revised to correct the typographical error related to the incorrect cross reference to paragraph 7.1.90.1; this paragraph does not exist, however. The correct cross reference is paragraph 7.1.9.1.
Under Executive Order (EO) 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget (OMB). This action is not a “major rule” as defined by 5 U.S.C. 804(2). The technical corrections do not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Because EPA has made a “good cause” finding that this action is not subject to notice and comment requirements under the APA or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The corrections do not have substantial direct effects on the states, or 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 EO 13132, Federalism (64 FR 43255, August 10, 1999).
This action also does not significantly or uniquely affect the communities of tribal governments, as specified by EO 13175, Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000). The technical corrections also are not subject to EO 13045, Protection of Children from Environmental Health and Safety Risks (62 FR 19885, April 23, 1997) because this action is not economically significant.
The corrections are not subject to EO 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because this action is not a significant regulatory action under EO 12866.
The corrections do not involve changes to the technical standards related to test methods or monitoring methods; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply.
The corrections also do not involve special consideration of environmental justice-related issues as required by EO 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
The EPA's compliance with the above statutes and EOs for the underlying rule is discussed in the February 16, 2012,
Environmental protection, Administrative practice andprocedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice andprocedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
Accordingly, title 40, chapter I, of the Code of the Federal Regulations is amended by making the following correcting amendments:
42 U.S.C. 7401 et seq.
(a) * * *
(4) * * *
(i) The affected facility combusts only gaseous fuels and/or liquid fuels (excluding residue oil) with a potential SO
42 U.S.C. 7401,
(a) * * *
(1) The affected source of this subpart is the collection of all existing coal- or oil-fired EGUs, as defined in § 63.10042, within a subcategory.
(2) The affected source of this subpart is each new or reconstructed coal- or oil-fired EGU as defined in § 63.10042.
(d) An EGU is existing if it is not new or reconstructed. An existing electric steam generating unit that meets the applicability requirements after the effective date of this final rule due to a change in process (e.g., fuel or utilization) is considered to be an existing source under this subpart.
(a) * * *
(2) An EGU that commenced reconstruction after May 3, 2011.
(c) You may use the alternate SO
(c)(1) For coal-fired units, IGCC units, and solid oil-derived fuel-fired units, initial performance testing is required for all pollutants, to demonstrate compliance with the applicable emission limits.
(i) * * *
(B) You may not pursue the LEE option for Hg if your coal-fired, solid oil-derived fuel-fired EGU or IGCC EGU is new.
(2) * * *
(iv) If your unit qualifies as a limited-use liquid oil-fired as defined in § 63.10042, then you are not subject to the emission limits in Tables 1 and 2, but you must comply with the performance tune-up work practice requirements in Table 3.
(d) * * *
(5) * * *
(i) Installation of the CMS or sorbent trap monitoring system sampling probe or other interface at a measurement location relative to each affected process unit such that the measurement is representative of control of the exhaust emissions (e.g., on or downstream of the last control device). See § 63.10010(a) for further details. For PM CPMS installations, follow the procedures in § 63.10010(h).
(iv) Performance evaluation procedures and acceptance criteria (e.g., calibrations), including the quality control program in accordance with the general requirements of § 63.8(d).
(f) You are subject to the requirements of this subpart for at least 6 months following the last date you met the definition of an EGU subject to this subpart (e.g., 6 months after a cogeneration unit provided more than one third of its potential electrical output capacity and more than 25 megawatts electrical output to any power distribution system for sale). You may opt to remain subject to the provisions of this subpart beyond 6 months after the last date you met the definition of an EGU subject to this subpart, unless you are a solid waste incineration unit subject to standards under CAA section 129 (e.g., 40 CFR Part 60, Subpart CCCC (New Source Performance Standards (NSPS) for Commercial and Industrial Solid Waste Incineration Units, or Subpart DDDD (Emissions Guidelines (EG) for Existing Commercial and Industrial Solid Waste Incineration Units). Notwithstanding the provisions of this subpart, an EGU that starts combusting solid waste is immediately subject to standards under CAA section 129 and the EGU remains subject to those standards until the EGU no longer meets the definition of a solid waste incineration unit consistent with the provisions of the applicable CAA section 129 standards.
(b) * * *
(2) For a performance test based on data from a certified CEMS or sorbent trap monitoring system, the test consists of all valid CMS data recorded in the 30 boiler operating days immediately preceding that date;
(d) * * *
(1) For an affected coal-fired, solid oil-derived fuel-fired, or liquid oil-fired EGU, you may demonstrate initial compliance with the applicable SO
(4) * * *
(i) * * *
(ii) You must demonstrate continuous compliance with the CMS site-specific operating limit that corresponds to the results of the performance test demonstrating compliance with the HCl or HF emissions limit.
(h) * * *
(3) * * *
(iii) * * *
(C) * * *
(
(
(a) For liquid oil-fired, solid oil-derived fuel-fired and coal-fired EGUs and IGCC units using PM CPMS to monitor continuous performance with an applicable emission limit as provided for under § 63.10000(c), you must conduct all applicable performance tests according to Table 5 to this subpart and § 63.10007 at least every year.
(c) If you choose to comply with the filterable PM emission limit and demonstrate continuous performance using a PM CPMS for an applicable emission limit as provided for in § 63.10000(c), you must also establish an operating limit according to § 63.10011(b) and Tables 4 and 6 to this subpart. Should you desire to have operating limits that correspond to loads other than maximum normal operating load, you must conduct testing at those other loads to determine the additional operating limits.
(g) You must determine the weighted average emissions rate in units of the applicable emissions limit on a 30 day rolling average (90 day rolling average for Hg) basis according to paragraphs (g)(1) through (2) of this section. The first averaging period begins on 30 (or 90 for Hg) days after February 16, 2015 or the date that you begin emissions averaging, whichever is earlier.
(j) * * *
(2) * * *
(i) * * *
(A) Whether the content of the plan includes all of the information specified in paragraph (j)(1) of this section; and
(a) * * *
(6) * * *
(iii) Sum the products determined under paragraph (a)(6)(ii) of this section; and
(iv) Divide the result obtained in paragraph (a)(6)(iii) of this section by the total hourly stack gas flow rate for the unit, summed across all of the stacks or ducts.
(g) If you use a Hg CEMS or a sorbent trap monitoring system, you must install, certify, operate, maintain and quality-assure the data from the monitoring system in accordance with appendix A to this subpart. You must calculate and record a 30- (or, if alternate emissions averaging is used, 90-) boiler operating day rolling average Hg emission rate, in units of the standard, updated after each new boiler operating day. Each 30- (or, if alternate emissions averaging is used, 90-) boiler operating day rolling average emission rate, calculated according to section 6.2 of appendix A to the subpart, is the average of all of the valid hourly Hg emission rates in the preceding 30- (or, if alternate emissions averaging is used, a 90-) boiler operating days. Section 7.1.4.3 of appendix A to this subpart explains how to reduce sorbent trap monitoring system data to an hourly basis.
(c)(1) If you use CEMS or sorbent trap monitoring systems to measure a HAP (e.g., Hg or HCl) directly, the first 30-boiler operating day (or, if alternate emissions averaging is used for Hg, the 90-boiler operating day) rolling average emission rate obtained with certified CEMS after the applicable date in § 63.9984 (or, if applicable, prior to that date, as described in § 63.10005(b)(2)), expressed in units of the standard, is the initial performance test. Initial compliance is demonstrated if the results of the performance test meet the applicable emission limit in Table 1 or 2 to this subpart.
(d) Except for periods of monitoring system malfunctions or monitoring system out-of-control periods, repairs associated with monitoring system malfunctions or monitoring system out-of-control periods, and required monitoring system quality assurance or quality control activities including, as applicable, calibration checks and required zero and span adjustments), failure to collect required data is a deviation from the monitoring requirements.
(b) Except as otherwise provided in § 63.10020(c), if you use a CEMS to measure SO
(a) * * *
(1) For each 30- (or 90-) day rolling average period, demonstrate compliance with the average weighted emissions limit for the existing units participating in the emissions averaging option as determined in § 63.10009(f) and (g);
(e) * * *
(7) * * *
(i) A summary of the results of the annual performance tests and documentation of any operating limits that were reestablished during this test, if applicable. If you are conducting stack tests once every 3 years consistent with § 63.10006(b), the date of the last three stack tests, a comparison of the emission level you achieved in the last three stack tests to the 50 percent emission limit threshold required in § 63.10006(i), and a statement as to whether there have been any operational changes since the last stack test that could increase emissions.
(c) * * *
(4) Include the date of the most recent tune-up for each unit subject to the requirement to conduct a performance tune-up according to § 63.10021(e). Include the date of the most recent burner inspection if it was not done every 36 (or 48) months and was delayed until the next scheduled unit shutdown.
6.2.1.4The heat input-based Hg emission rate limit in Table 2 to this subpart must be met on a 30 boiler operating day rolling average basis, except as otherwise provided in § 63.10009(a)(2). Use Equation 19-19 in EPA Method 19 to calculate the Hg emission rate for each averaging period. The term E
6.2.2.3The applicable electrical output-based Hg emission rate limit in Table 1 or 2 to this subpart must be met on a 30-boiler operating day rolling average basis, except as otherwise provided in § 63.10009(a)(2). Use Equation A-5 of this section to calculate the Hg emission rate for each averaging period.
7.2.4
7.2.5.3.4The results of all daily calibration error tests of the Hg CEMS, as described in paragraph 7.1.9.1 of this section and (if applicable) the results of all daily flow monitor interference checks.
Environmental Protection Agency (EPA).
Final rule.
EPA is announcing new opportunities for tribal participation and engagement in the TRI Program. Under this final rule, TRI reporting facilities located in Indian country are required to report to the appropriate tribal government of their relevant area instead of the State. This rule also improves and clarifies certain opportunities allowing tribal governments to participate more fully in the TRI Program. Further, because tribal governmental structures may vary, EPA is updating its terminology to refer to the principal elected official of the Tribe as the “Tribal Chairperson or equivalent elected official.” EPA is also amending its definition of “State” for purposes of 40 CFR part 372 to no longer include Indian country, so as to avoid any confusing overlap in terminology for facilities located in Indian country. With regard to the procedures for EPA to modify the list of covered chemicals and TRI reporting facilities, today's rule clarifies the opportunities available to tribal governments. In particular, EPA is including within the relevant provision an opportunity for the Tribal Chairperson or equivalent elected official to request that EPA apply the TRI reporting requirements to a specific facility located within the Tribe's Indian country. Secondly, EPA is clarifying in this rule that the Tribal Chairperson or equivalent elected official may petition EPA to add or delete a particular chemical respectively to or from the list of chemicals covered by TRI. In finalizing the actions described, EPA is helping to increase awareness of toxic releases within tribal communities, thereby increasing the understanding of potential human health and ecological impacts from these hazardous chemicals.
This final rule is effective April 19, 2012. The requirement of facilities located in Indian country to report to tribal governments is applicable beginning with TRI reporting year 2012 (TRI reports due by July 1, 2013).
EPA has established a docket for this action under Docket ID No. EPA-HQ-OEI-2011-0196. All documents in the docket are listed on the
Louise Camalier, Environmental Analysis Division, Office of Environmental Information (2842T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 566-0503; fax number: (202) 566-0677; email address:
You may be affected by this action if you own or operate a facility located in Indian country (see 40 CFR 372.3 for a definition of Indian country) with a toxic chemical(s) known by the owner or operator to be manufactured (including imported), processed, or otherwise used in excess of an applicable threshold quantity, as referenced in 40 CFR 372.25, 372.27, or 372.28, at its covered facility described in § 372.22. Potentially affected categories and entities may include, but are not limited to:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Some of the entities listed in the table have exemptions and/or limitations regarding coverage, and other types of entities not listed in the table could also be affected. To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372 subpart B of Title 40 of the Code of Federal Regulations.
Facilities in Indian country are no longer required to report to the relevant States, although States may still receive this information once it is available to the public. Tribes with facilities located in their Indian country will receive the facility reports under this final rule. This represents a change for affected facilities, States, and Tribes.
If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Since the beginning of the TRI Program in 1986, facilities that meet TRI reporting requirements have been required to submit annual TRI reports to EPA and the State in which they are located. In 1990, EPA finalized regulations in the
To further encourage tribal engagement and participation in the TRI program, EPA is also making explicitly clear in the regulations certain additional opportunities for governments of federally-recognized Tribes. The first opportunity allows the Tribal Chairperson or equivalent elected official to request that EPA apply the TRI reporting requirements to a specific facility located within the Tribe's Indian country, under the authority of EPCRA Section 313(b)(2). The second opportunity allows the Tribal Chairperson or equivalent elected official to petition EPA to add or delete a particular chemical respectively to or from the list of chemicals covered by TRI, under the authority of EPCRA Section 313(e)(2). Under this rule, EPA will treat these request and petitioning opportunities as EPA currently treats those for Governors of States under EPCRA Sections 313(b)(2) and (e)(2). After EPA has received a formal request from a Tribe, EPA will make its final decision on the facility addition based on the criteria outlined in EPCRA Section 313(b)(2). Under existing authorities, EPA may also act on its own motion to add a facility without anyone requesting action. Opportunities for the public to participate in the TRI program consist of the right to petition the EPA to add or delete a particular chemical or chemicals to the TRI list of hazardous chemicals for toxics release reporting. Such public participation opportunities are not changed by this final rule.
This document is primarily intended to fulfill the goals of the July 26, 1990, action (55 FR 30632), which required facilities located in Indian country to report to the appropriate tribal government and the EPA, instead of to the State and EPA. This amendment, however, was inadvertently omitted from the CFR when it was overwritten by a subsequent rule. Therefore, EPA is updating 40 CFR 372.30(a) to reflect the purpose of the 1990 amendment. Secondly, to supplement this action, this document also clarifies existing TRI reporting regulations and provides guidance to further enable tribal governments to participate more fully in the TRI Program.
Under today's final rule, an owner or operator of a TRI facility in Indian country will have to submit (to the extent applicable) EPA's Form R, Form A, and Form R Schedule 1 to the official designated by the Tribal Chairperson or equivalent elected official of the relevant Tribe, as well as to EPA. The form(s) will no longer have to be submitted to the State in which the facility is geographically located. Under this final rule, facilities will select/provide the name of the relevant federally-recognized Tribe in the
Also under today's final rule, EPA is clarifying the request and petitioning rights available to tribal governments. A
EPA is finalizing this rule under sections 313, 328, and 329 of EPCRA, 42 U.S.C. 11023, 11048 and 11049.
EPCRA Section 313(a) requires that the TRI reporting form be submitted to EPA and the official(s) of the State designated by the Governor. Section 329 defines “State” to mean “any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, and any other territory or possession over which the United States has jurisdiction.” The statute has no separate definition of, or explicit reference to, Indian Tribes or Indian country. As EPA has explained previously, however, Congress clearly intended the statute's protections to apply to all persons nationwide, including in Indian country.
This reasonable interpretation of the statute is reinforced by the broad grant of rulemaking authority from Congress to EPA under EPCRA. Section 328 provides that the “Administrator may prescribe such regulations as may be necessary to carry out this chapter.” 42 U.S.C. 11048.
For purposes of regulatory clarity, EPA is expressly including the reporting requirements for a facility in Indian country in part 372. Part 372 already contains a definition of Indian country at 40 CFR 372.3. To avoid any confusing overlap, EPA will remove Indian country from the definition of “State” as that term is used in part 372.
EPA also expressly interprets section 313(b)(2) and (e)(2) in the context of Indian Tribes. In the case of a facility located in Indian country, EPA interprets section 313(b)(2) as allowing requests by a Tribal Chairperson or equivalent elected official that EPA apply TRI reporting requirements to a facility located in the requesting Tribe's Indian country. EPA also interprets section 313(e)(2) as allowing petitions by a Tribal Chairperson or equivalent elected official requesting that EPA add or delete a chemical to or from the list of chemicals subject to TRI reporting. EPA's interpretation of each of these provisions flows from the same reasoning and authority as discussed above for section 313(a). EPA also notes that in all cases it is EPA, not a Tribe or State, that makes the final determination whether a facility or chemical should be subject to the TRI program.
EPA believes that each of these tribal roles will enhance tribal participation in the TRI program and the availability of relevant information to communities within Indian country consistent with statutory authorities and requirements. EPA notes that pursuant to EPA's 1990 rulemaking cited above, federally-recognized Indian Tribes already participate in other important elements of implementation of EPCRA in Indian country. Today's final rulemaking, among other things, rectifies the inadvertent omission from the CFR of certain tribal roles in the TRI program.
As defined at 40 CFR 372.3, “Indian Tribe” refers to those Tribes that are “federally-recognized by the Secretary of the Interior.” The Secretary of the Interior maintains a list of federally-recognized Indian Tribes, which is published periodically in the
Under this final rule and per the intent of the 1990 regulation, a Tribe's only responsibility will be to receive any TRI reports submitted by facilities located within its Indian country.
Under this final rule, Tribes may define how they would like to receive reports from TRI facilities. If a Tribe provides no specific guidance as to receipt, owners and operators of TRI facilities would mail TRI reports to the appropriate tribal government representative. Tribes will be requested by EPA to provide a mailing address and contact name to be published on the TRI Web site, so that facilities in Indian country know where to send their TRI reports. If no specific contact is provided, EPA will use the Tribal Council or Tribal Environmental Department as the default contact. As described further below, tribal governments can also choose to provide electronic options for report submittal.
As described above, under the rule the owner or operator of a facility located in Indian country will have to submit the facility's TRI reports to the relevant tribal government in lieu of the State government. The requirement to submit the report to EPA will remain unchanged. In many cases, this means the owner or operator will mail a copy of the TRI report to the specific tribal government representative. As noted, tribal governments may also choose to allow for electronic submittal of TRI reports. If a tribal government becomes a member of the internet-based TRI Data Exchange, then the owner or operator of a facility can meet its dual EPA/Tribal reporting requirements by submitting its TRI report to EPA via TRI Made Easy (TRI-ME) web, a web-based application that allows facilities to submit a paperless report. EPA would then automatically transmit the report to the appropriate Tribe (instead of the State) via the TRI Data Exchange.
If the facility is located in the Indian country of a Tribe that does not become a member of the TRI Data Exchange, then the facility will be required to submit a TRI report to EPA and also separately to the appropriate Tribe. The approach described above is the same as for EPA and States for those facilities not located in Indian country.
Under this final rule, a Tribe has the opportunity to request that EPA require that a currently non-covered facility located in its Indian country report the facility's releases and other waste management to TRI. Under the statute, it is EPA that applies TRI reporting requirements to particular facilities (EPCRA Section 313(b)(2)). Section 313(b)(2) provides an opportunity for Governors of States to request that EPA apply TRI requirements to facilities in their areas. The addition of certain facilities that would otherwise not be covered by TRI helps to aid communities and leaders to comprehensively assess chemical releases to their local environment. EPA interprets this provision to provide a similar opportunity for the Tribal Chairperson or equivalent elected official to request that EPA apply TRI reporting requirements to particular facilities located in the Tribe's Indian country. This opportunity for Tribes to request that EPA add a facility located in their Indian country can address situations where a tribal government becomes aware of a facility that manufactures (including imports), processes, or otherwise uses a TRI chemical yet does not meet the full criteria to trigger reporting. This opportunity to add the facility may help the Tribe better understand chemical risks within their Indian country.
This is an opportunity and not a requirement, which means that the Tribal Chairperson or equivalent elected official is not required to request the addition of a facility; however, he or she may do so, for instance, if there is a concern about toxic releases coming from that facility. After EPA receives a formal request from a Tribe, EPA will make its final decision on the facility addition based on the criteria outlined in EPCRA Section 313(b)(2). Under existing authorities, EPA may also act on its own motion to add a facility without anyone requesting action.
EPA's consultation with Tribes consisted of two consultation calls (February 7 and 28 of 2011), and during these calls EPA facilitated discussion and received views and comments from Tribes in relation to the actions described in this rule. Furthermore, EPA officiated two additional webinars for representatives from the National Tribal Air Association (NTAA) on March 17 and 30 of 2011, and hosted an electronic discussion forum (or “blog”) to collect electronic feedback from interested parties. Material summarizing these meetings and the blog can be accessed from the docket for the rule (Docket ID No. EPA-HQ-OEI-2011-0196).
During the Agency's consultation with Tribes, EPA received several positive comments about the proposed clarification to the request rights for Tribes to add a facility to the TRI. As EPA has heard in consultation, however, Tribes may also be concerned about facilities that are not in Indian country but are located nearby, where releases of chemicals may reach and affect Indian country lands and communities. Although the opportunity expressly provided by the statute to request the addition of a facility under EPCRA 313 only extends to a facility located in the relevant State and, for Tribes under this rule, in the relevant Indian country, EPA will consider any concerns and information about facilities outside of the State or Indian country in the exercise of EPA's discretionary authority, including concerns and information brought to EPA's attention by a Tribal Chairperson or equivalent elected official, and/or similarly, by Governors of States. This possibility is especially relevant in situations where a facility releases chemicals into or near a State or Indian country boundary or cross-boundary community, yet it is not located within that Governor's State or Tribal Chairperson or equivalent elected official's Indian country. While there is no 180-day time limit as there is for chemical petitions, and while this final rule does not address these general request opportunities which are already in existence, EPA, as a matter of administrative policy, would give such requests from tribal governments (as well as Governors of States) appropriate priority and consideration.
The impact on owners and operators of facilities that EPA includes within the TRI reporting program pursuant to the authority of EPCRA Section 313(b)(2) is that they will be required to report to EPA and the relevant Tribe (for facilities located in Indian country) or State (for facilities outside of Indian country) under TRI. The impact from this opportunity on citizens around the requested facility will be access to additional information on chemicals being managed at the facility if EPA adds the facility.
Under this final rule, Tribes have the same opportunity as Governors of States to petition EPA to require that a chemical be added to or removed from the TRI list of toxic chemicals. Ultimately, it is EPA that determines whether the chemical will be added to, or deleted from, the TRI list. If EPA adds a chemical to the list, such action would affect all facilities releasing the particular substance, regardless of a facility's location inside or outside of the petitioning Tribe's Indian country. This type of provision already applies in the context of petitions by Governors of States (EPCRA Section 313(e)(2)). EPA interprets the statute to provide similar opportunities to the Tribal Chairperson or equivalent elected official. This is an opportunity and not a requirement. In other words, the Tribal Chairperson or equivalent elected official will not be required to petition EPA to modify the list of substances managed by TRI; however, he or she may do so, for instance, if there is a concern about toxic releases of that substance.
If EPA receives a petition from a Tribe that requests the addition of a particular chemical, EPA has 180 days to respond with either the initiation of a rulemaking to add the chemical to the list or an explanation of why the petition does not meet the requirements
Within 180 days of receipt of a Tribe's petition to delete a chemical based on the criteria provided in subparagraph (A), (B), or (C) of EPCRA Section 313(d)(2), EPA will either initiate a rulemaking to delete the chemical or explain why EPA denied the petition. Unlike the analogous process for petitions to add a chemical, however, the chemical would not be deleted within 180 days if EPA failed to respond.
Further, any person may petition EPA to add or delete a chemical based on certain grounds specified under EPCRA Section 313(e)(1). However, if EPA receives a petition by a private citizen to add a chemical and EPA fails to respond within 180 days, the chemical would not necessarily be added. This result distinguishes citizen petitions to add a chemical from petitions to add a chemical by a Governor of a State or, as clarified under this final rule, the Tribal Chairperson or equivalent elected official (compare EPCRA Section 313(e)(1) with EPCRA Section 313(e)(2)).
During the Agency's consultation with Tribes, EPA received several positive comments about this clarification to the petition rights for Tribes to add a chemical to the TRI reporting list. For more information, the materials summarizing these meetings and the blog can be accessed from the docket for this rule (Docket ID No. EPA-HQ-OEI-2011-0196).
If EPA adds a chemical(s) to the TRI list (through its own initiative under Section 313(d) or in response to a petition), the impact on owners and operators of facilities with the toxic chemical(s) in question will be that they would be required to evaluate the TRI reporting requirements with the new chemical and, if appropriate, based on those requirements, report under TRI to EPA and the relevant State or, if located in Indian country, the relevant Tribe. The impact from this action by EPA on Tribes, States, and the general public will be that they would have access to information on new toxic chemicals being managed at facilities across the nation. The potential impact from this action on industry consists of the cost of compliance for facilities that will have to report for a particular chemical that EPA added.
EPA received 10 comments on the
Several commenters stated that section 313(a) of EPCRA requires a facility owner or operator to submit the reporting form to two governmental authorities: The EPA Administrator and the appropriate State official or officials, as designated by the Governor. These commenters assert that EPA can neither relieve the facility of the statutory obligation to submit the form to State officials nor require the facility to submit the form to any authority other than the EPA or the State. The commenters further assert that section 329(9) of EPCRA, the definition of “State,” does not include Indian Tribes. The commenters assert that when Congress intends to include Tribes within the definition of “State,” it does so clearly, and the commenters point to the Clean Air Act, the Safe Drinking Water Act, and the Clean Water Act as examples of such clear intentions. One commenter also notes that Congress expressly included a provision that Tribes should be afforded substantially the same treatment as States for purposes of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. This commenter argues that the use of this language in CERCLA and its corresponding absence in EPCRA indicates an intent to preclude Tribes from being treated similar to States for the purposes of EPCRA. The commenters argue that EPA does not have the authority to construe “an official or officials of the State designated by the Governor” to mean “an official or officials of the Indian Tribe designated by the Tribal Chairperson or equivalent elected official of the relevant Indian Tribe.”
EPA disagrees with the comments and believes that EPCRA provides EPA ample authority to fill gaps in implementing the statute's requirements in Indian country by reasonably exercising the Agency's discretion to establish appropriate tribal roles to receive TRI reports in Indian country. EPCRA does not explicitly address the role of Tribes in implementing Title III programs. EPA notes that relevant authorities in Indian country generally lie with Tribes and the federal government, and not with States.
EPA received comments stating that Tribes do not have the legal authority to implement EPCRA. The commenters argue that because this rule involves the regulation of non-members,
EPA disagrees with the commenters' premise that Tribes are unable to implement the EPCRA roles included in this rulemaking in Indian country and notes that this rulemaking does not change the reporting requirements for facilities adjacent to, but not within, Indian country. EPA notes that in the prior rulemaking establishing tribal roles in implementing Title III, the Agency concluded that Tribes are generally able to exercise sufficient authority to carry out Title III emergency planning and response activities in Indian country. 55 FR 30632, 306041 (July 26, 1990).
Two commenters sought an extension of the rule to include lands ceded by treaties that may be used by Tribes for hunting, fishing, and gathering. These commenters also asked that EPA extend this action to lands ten miles away from any reservation due to the migration of air emissions.
EPA recognizes that the problem presented by releases from facilities in cross-border areas is present in any emergency response scheme that relies on reporting to local officials. EPCRA recognizes this issue and encourages cross-boundary cooperation; section 304(b)(1) requires that emergency notification be given to “the State emergency planning commission of any State likely to be affected by the release.” With regard to Indian country, EPA understands Indian Tribes to be within the scope of “State” for the purposes of section 304(b)(1) notification. EPA encourages Tribes, State Emergency Response Commissions (SERCs), and Local Emergency Planning Committees (LEPCs) to participate in joint planning and cooperative efforts to prepare for potential emergencies.
EPA declines to extend the rule as requested by the commenters because of the local nature of emergency planning. It is important that one entity be responsible for emergency planning in an area to enable effective emergency response. EPA encourages joint planning and cooperative efforts between LEPCs, SERCs, and Tribes to address these entities' interests in emergency response planning in lands outside their borders.
EPA received comments that this action will make TRI data more difficult to obtain, particularly in Oklahoma, where the status of lands is often uncertain. The commenters argue that the public and first responders will need to take steps to evaluate the status of the land before knowing where to seek relevant reporting information. One commenter adds that this rule could endanger first responders, LEPCs, and local residents because they will not be able to easily determine which hazardous materials are within their communities, or how to respond to a chemical release because these facilities would only be required to report to a tribal government, not the Department of Environmental Quality (DEQ). Additionally, these commenters note that they find EPA's database unreliable, because the information is no longer current by the time it becomes public.
EPA recognizes the need to publish current TRI data and released the preliminary 2010 data on July 28, 2011, less than one month after the July 1st reporting deadline. EPA believes that this approach of releasing the most recent TRI data soon after the reporting deadline and before the TRI National Analysis has been developed helps communities to have access to the most recent data as quickly as possible.
In addition, EPA believes that in most cases, determining whether reporting facilities are located within Indian country will be straightforward, and there should be little or no confusion regarding such locations. This is especially true for facilities that are covered by regulatory programs under other federal environmental statutes,
Two commenters stated that EPA's interpretation of EPCRA is unreasonable because it removes the state's responsibility for accepting TRI reports and making them publicly available.
EPA does not believe that EPCRA designates States as the responsible entity for accepting TRI reports for facilities in Indian country. EPA notes that, consistent with applicable principles of federal Indian law, it is the federal government and Tribes, not the States, that generally implement programs in Indian country.
One commenter stated that if the proposed rule is finalized, implementation should be delayed, because EPA and Tribes need time to develop a way for reporters to determine Indian country in Oklahoma.
EPA does not believe there is any programmatic benefit to delaying implementation of this rule or establishing new deadlines. The risks from chemical accidents are real and current, and EPA encourages the communities in which these risks exist to move quickly and expeditiously to begin addressing those risks. In addition, as noted above, EPA believes that in most cases, determining whether reporting facilities are located within Indian country will be straightforward. This is especially true for facilities that are covered by regulatory programs under other federal environmental statutes,
One commenter stated that States will not have access to TRI information in Indian country and will thus have potential data gaps.
EPA generally makes TRI data available to the public less than one month after the reporting deadline, thus making any alleged data availability gaps temporary and short-term in nature. We note that this concern would also apply to cross-border situations as between States, which is an issue that exists irrespective of this rulemaking. Similarly, Tribes have expressed interest in release data for areas near, but outside of, their Indian country. During the approximate three-week period between report submission and public availability, EPA encourages States and Tribes to work together to share TRI data on facilities of mutual interest.
Two commenters expressed concerns that this action may have adverse effects on compliance monitoring. One of these commenters stated that it uses TRI data to compare reported quantities of releases to media-permitted releases, which has revealed several releases in excess of permitted releases in the past. This commenter alleged that a delay in getting updated TRI information would delay this comparison and prolong potential noncompliance.
EPA recognizes the need to publish current TRI data, and released the preliminary 2010 data on July 28, 2011, less than one month after the July 1st reporting deadline. With regard to compliance monitoring under federal environmental laws, EPA also notes that it is generally EPA or the relevant Indian Tribe that implements environmental programs in Indian country. State programs are generally not approved by EPA for such areas.
One commenter requested that EPA further consider the impact on regulated entities and specifically asks whether EPA's Economic Analysis included TRI facilities on Indian allotments. The commenter asserted that there will be a cost in determining whether or not a facility is on an allotment.
EPA has developed an economic analysis to assess the impact on facilities located in Indian country. The economic analysis estimates incremental economic burden for facilities that are required to report releases to TRI. The term Indian country, as defined in 40 C.F.R. 372.3, includes Indian allotments, so EPA therefore accounted for such facilities in the universe of those affected by this rule. The Agency's estimation of burden to a facility included coordination with EPA and other offices regarding Indian country land status issues. Originally, EPA estimated the time it would take for a facility to make this determination would be, on average, about 10 minutes. This 10-minute assumption considered the fact that most facility reporters are already aware of their facilities' geographic status relating to Indian country. In light of this commenter's concern, EPA increased the average time (over the full universe of facilities) for a facility reporter to make this determination, including consulting with EPA as appropriate, to 30 minutes. This increase in reporter burden for compliance determination is reflected in the final economic analysis and raises the total first year incremental cost from $377,695 to $388,161, based on an updated total of 6,985 burden hours. EPA recognizes that certain rarer situations may raise more complex factual scenarios. In such cases, EPA intends to work with the relevant State, Tribe, and facility to assess the Indian country status of the particular facility's location.
EPA received comment on potential economic impact and implementation issues for Tribes. This commenter expressed concern for the increased workload for Tribes and asked that EPA share the rationale of the cost analysis or conduct a benefits analysis. The commenter requested that EPA work with Tribes to assist Tribes in easily managing the data and using the data to educate the community. The commenter also requested assistance with upgrades to paper or electronic reporting systems.
EPA disagrees that the implementation of this rule will result in additional burden to the Tribes responsible for receiving TRI reports in
EPA has established an official public docket for this action under Docket ID No. EPA-HQ-OEI-2011-0196. The public docket includes information considered by EPA in developing this action, which is electronically or physically located in the docket. For assistance in locating any of these documents, please consult the person listed in the above
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under EOs 12866 and 13563 (76 FR 3821, January 21, 2011).
This final rule does not contain any new information collection requirements that require additional approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
OMB has approved the reporting burden associated with the EPCRA Section 313 reporting requirements under OMB Control number 2025-0009 (EPA Information Collection Request (ICR) No. 1363.21). As provided in 5 CFR 1320.5(b) and 1320.6(a), 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 OMB control numbers relevant to EPA's regulations are listed in 40 CFR part 9, 48 CFR chapter 15, and displayed on the information collection instruments (e.g., forms, instructions).
EPA estimates the incremental burden for facilities located in Indian country to send their reports to the Tribe instead of the State to average, in the first year, approximately $44.64 per facility for the 47 facilities located in Indian country. EPA estimates an incremental burden of $18.51 for the remaining 20,857 TRI reporters. Thus, the total first year incremental cost associated with the rule is estimated at $388,161 based on 6,985 total burden hours. In subsequent years, there is no incremental reporting burden, given that the burden created by the rule is limited to rule familiarization and compliance determination in which facilities will only engage in the first year. These estimates include the time needed to become familiar with the new requirement (rule familiarization) and to determine whether the facility is located in Indian country (compliance determination). The actual burden on any facility may be different from this estimate depending on how much time it takes individual facilities to complete these activities.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A business that is classified as a “small business” by the Small Business Administration 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.All of the 3,210 potentially affected small entities have cost impacts of less than 1% in the first year of the rulemaking. Note that facilities do not incur an increase in reporting burden or costs in subsequent years of the rulemaking. No small entities are projected to have a cost impact of 1% or greater. Of the 3,210 estimated cost impacts, there is a maximum impact of approximately 0.713% and a median impact of approximately 0.003%. A more detailed analysis of the impacts on small entities is located in EPA's economic analysis support document,
After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. EPA's economic analysis indicates that the total cost of this rule is estimated to
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. Small governments are not subject to the EPCRA section 313 reporting requirements.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. Thus, Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA has specifically solicited comment on this action from State and local officials prior to promulgating this final rule.
Under Executive Order 13175 (65 FR 67249, November 9, 2000), EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.
EPA has concluded that this action may have tribal implications, as specified in Executive Order 13175. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. This action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities; however, it may have tribal implications due to how the Agency is changing the current way toxic chemical reporting information is transmitted and received. EPA consulted with tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. EPA organized and provided a formal consultation with Tribes to discuss the actions that may have the potential to affect one or more Tribes or areas of interest to Tribes. Two consultation calls occurred on February 7 and 28 of 2011, and during these calls EPA facilitated discussion and received views and comments from Tribes in relation to the actions proposed, and eventually finalized in this rule. During the Agency's consultation with Tribes, EPA received several positive comments about the clarification to the request rights for Tribes to add a facility to the TRI, as well as the petitioning rights to add or delete a chemical. Furthermore, EPA officiated two additional webinars for representatives from the National Tribal Air Association (NTAA) on March 17 and 30 of 2011, and hosted a blog to collect electronic feedback from Tribes and other interested parties. Additionally, in the spirit of EO 13175, and consistent with EPA policy to promote communications between EPA and Indian tribal governments, EPA specifically solicited additional comment on the proposed action from tribal officials. EPA is finalizing this regulation in order to better clarify tribal opportunities for participation in the TRI Program and to enable Tribes to take a more active role by receiving the facility reports documenting releases within their Indian country. Through this final rule, EPA is also providing certain opportunities for Tribal Chairpersons or equivalent elected officials that are already in place for Governors of States. EPA has addressed all feedback from its consultation with Tribes in this rulemaking.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
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(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This final rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
EO 12898 (59 FR 7629, Feb. 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. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This final rule provides opportunities to request the addition of chemicals and facilities to the EPCRA section 313 reporting requirements. By adding chemicals to the list of toxic chemicals subject to reporting under section 313 of EPCRA, EPA would be providing communities across the United States (including minority populations and low-income populations) with access to data which they may use to seek lower exposures and consequently, reductions in chemical risks for themselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Community right-to-know, Reporting and recordkeeping requirements, Tribes, and Indian country.
Therefore, 40 CFR part 372 is amended as follows:
42 U.S.C. 11023 and 11048.
(a) Request to add a facility to the TRI list of covered facilities.
(b) The Administrator, on his own motion or at the request of a Governor of a State (with regard to facilities located in that State) or a Tribal Chairperson or equivalent elected official (with regard to facilities located in the Indian country of that Tribe), may apply the requirements of section 313 of Title III to the owners and operators of any particular facility that manufactures, processes, or otherwise uses a toxic chemical listed under subsection (c) of section 313 of Title III if the Administrator determines that such action is warranted on the basis of toxicity of the toxic chemical, proximity to other facilities that release the toxic chemical or to population centers, the history of releases of such chemical at such facility, or such other factors as the Administrator deems appropriate.
(c) Petition to add or delete a chemical from TRI list of covered chemicals.
(d)
(i) Initiate a rulemaking to add or delete the chemical to or from the list, in accordance with subsection (d)(2) or (d)(3) of section 313 of Title III.
(ii) Publish an explanation of why the petition is denied.
(2)
(i) Initiates a rulemaking to add the chemical to the list, in accordance with subsection (d)(2) of section 313 of Title III, or
(ii) Publishes an explanation of why the Administrator believes the petition does not meet the requirement of subsection (d)(2) of section 313 of Title III for adding a chemical to the list.
(d) Each certification statement under this section for activities involving a toxic chemical that occurred during a calendar year at a facility must be submitted to EPA and to the State in which the facility is located on or before July 1 of the next year. If the covered facility is located in Indian country, the facility shall submit the certification statement as described above to EPA and to the official designated by the Tribal Chairperson or equivalent elected official of the relevant Indian Tribe, instead of to the State.
(a) For each toxic chemical known by the owner or operator to be manufactured (including imported), processed, or otherwise used in excess of an applicable threshold quantity in § 372.25, § 372.27, or § 372.28 at its covered facility described in § 372.22 for a calendar year, the owner or operator must submit to EPA and to the State in which the facility is located a completed EPA Form R (EPA Form 9350-1), EPA Form A (EPA Form 9350-2), and, for the dioxin and dioxin-like compounds category, EPA Form R Schedule 1 (EPA Form 9350-3) in accordance with the instructions referred to in subpart E of this part. If the covered facility is located in Indian country, the facility shall submit (to the extent applicable) a completed EPA Form R, Form A, and Form R Schedule 1 as described above to EPA and to the official designated by
Grain Inspection, Packers and Stockyards Administration, USDA.
Proposed rule; corrections.
This document corrects the preamble and the regulatory text to a proposed rule published by the Grain Inspection, Packers and Stockyards Administration (GIPSA) in the
The comment period closing date for the proposed rule published April 11, 2012, at 77 FR 21685 remains June 11, 2012.
Patrick McCluskey, (816) 872-1258.
In FR Doc. 2012-21685, published April 11, 2012, at 77 FR 21690, make the following corrections:
1. On page 21685, in the third column, in the
2. On page 21687, in the second column, 16th line, the phrase “GIPSA does assume however, that there would be no functional downside” is revised to read “GIPSA does not assume however, that there would be no function downside”.
3. On page 21690, the “Maximum percent limits of” section of the table in § 810.2240(a) is correctly revised to read as follows:
(a) * * *
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The existing AD currently requires revising certain sections of a certain airplane flight manual, deactivating certain hydraulic accumulators, removing certain hydraulic accumulators, ultrasonic inspections for cracks on accumulators and screw caps and replacement if necessary, and replacing certain accumulators. Since we issued that AD, we have determined that, for certain airplanes, reducing the compliance time for a certain replacement is necessary to ensure that the identified unsafe condition is addressed. This proposed AD would continue to require the existing actions from the existing AD. We are proposing this AD to detect and correct hydraulic accumulator screw cap/end cap failure, which could result in the loss of the associated hydraulic
We must receive comments on this proposed AD by June 4, 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
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue Suite 410, Westbury, New York 11590; telephone (516) 228-7318; fax (516) 794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On October 20, 2011, we issued AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011). That AD required actions intended to address an unsafe condition on certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) Airplanes.
Since we issued AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011), we have determined that the compliance time specified in paragraph (n) of this proposed AD (referred to as paragraph (q) in AD 2011-23-08) must be clarified. We are including the phrase, “whichever occurs first,” in paragraph (n)(1) of this AD, which requires operators to perform the action at the earlier of the times. We have determined that the proposed reduced compliance time is necessary to address the identified unsafe condition in a timely manner. This compliance time also matches the compliance time given in Canadian Airworthiness Directive CF-2010-24, dated August 3, 2010.
We have also determined that certain phrases need to be added and certain phrases need to be removed from certain credit paragraphs of this AD. We have revised paragraphs (o)(4) and (o)(5) of this proposed AD to specify “before December 22, 2011 (the effective date of AD 2011-23-08, Amendment 39-16859 (76 FR 71241,November 17, 2011)),” instead of “before November 4, 2010.” We have revised paragraph (o)(2) of this AD by removing “hydraulic system No. 1” because the service information in paragraph (o)(2) does not specify to remove the hydraulic system No. 1 accumulator. We have also revised paragraph (o)(2) of this proposed AD by removing Bombardier Service Bulletin 601R-32-107, Revision A, dated June 17, 2010, because credit for that service bulletin is already given in paragraph (m) of this proposed AD. You may obtain further information by examining the MCAI in the AD docket.
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.
This proposed AD would retain all requirements of AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011). Since AD 2011-23-08 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
We have also revised paragraph (j) (paragraph (j) of AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011)) of this proposed AD to refer to paragraph (k) of this AD instead of paragraph (l)(1) (paragraph (l) of AD 2011-23-08) for the applicable compliance times.
The actions specified in Canadian Airworthiness Directive CF-2010-24, dated August 3, 2010, apply only to Tactair accumulators. The actions required by paragraphs (h), (i), and (m) of this proposed AD apply to all accumulators in the positions specified in paragraphs (h), (i), and (l) of this proposed AD.
While Canadian Airworthiness Directive CF-2010-24, dated August 3, 2010, does not require replacement of the reducer of the hydraulic system No.
Based on the service information, we estimate that this proposed AD would affect about 605 products of U.S. registry.
The actions that are required by AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011), and retained in this proposed AD take about 33 work-hours per product, at an average labor rate of $85 per work hour. Required parts cost about $3,054 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, the estimated cost of the currently required actions is $5,859 per product.
The new requirements of this proposed AD add no additional economic burden.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD)2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011), and adding the following new AD:
We must receive comments by June 4, 2012.
This AD supersedes AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011).
This AD applies to Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category, serial numbers 7003 and subsequent.
Air Transport Association (ATA) of America Code 29, Hydraulic Power; 32, Landing Gear.
This AD was prompted by reports of on-ground hydraulic accumulator screw cap/end cap failure. We are issuing this AD to detect and correct hydraulic accumulator screw cap/end cap failure, which could result in the loss of the associated hydraulic system and high-energy impact damage to adjacent systems and structure, and consequent 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.
This paragraph restates the revision required by paragraph (g) of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010), with revised service information. Within 30 days after November 4, 2010 (the effective date of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010)), revise the Limitations section, Normal Procedures section, and Abnormal Procedures section of the Canadair Regional Jet AFM, CSP A-012, by incorporating Canadair Regional Jet Temporary Revision (TR) RJ/186-1, dated August 24, 2010, into the applicable section of Canadair Regional Jet AFM, CSP A-012. Thereafter, except as provided by paragraph (p) of this AD, no alternative actions specified in Canadair Regional Jet TR RJ/186-1, dated August 24, 2010, may be approved.
The actions required by paragraph (g) of this AD may be done by inserting a copy of Canadair Regional Jet TR RJ/186-1, dated August 24, 2010, into the applicable section of the Canadair Regional Jet AFM, CSP A-012. When this TR has been included in the general revisions of this AFM, the general revisions may be inserted into this AFM, and this TR removed, provided that the relevant information in the general revision is identical to that in Canadair Regional Jet TR RJ/186-1, dated August 24, 2010.
This paragraph restates the deactivation required by paragraph (h) of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010), with revised service information. Within 250 flight cycles after November 4, 2010 (the effective date of AD 2010-22-02), deactivate the hydraulic system No. 3 accumulator, in accordance with Part A of the Accomplishment Instructions of Bombardier Alert Service Bulletin A601R-29-031, Revision A, dated March 26, 2009. Doing the removal of the hydraulic system No. 3 accumulator in paragraph (l) of this AD terminates the requirements of this paragraph. The actions in this paragraph apply to all accumulators in hydraulic system No. 3.
This paragraph restates the removal required by paragraph (i) of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010), with revised service information. Within 500 flight cycles after November 4, 2010 (the effective date of AD 2010-22-02), remove the hydraulic system No. 2 accumulator, in accordance with the
This paragraph restates the initial and repetitive ultrasonic inspections required by paragraph (k) of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010), with revised service information. For hydraulic system No. 1, inboard brake and outboard brake accumulators having part number (P/N) 601R75138-1 (08-60163-001 or 08-60163-002): At the applicable compliance times specified in paragraph (k) of this AD, do the inspections required by paragraphs (j)(1) and (j)(2) of this AD. Repeat the inspections for each accumulator having P/N 601R75138-1 (08-60163-001 or 08-60163-002) thereafter at intervals not to exceed 500 flight cycles until the replacement specified in this paragraph is done or the replacement specified in paragraph (m) of this AD is done. If any crack is found, before further flight, replace the accumulator with a new accumulator having P/N 601R75138-1 (08-60163-001 or 08-60163-002) and having the letter “T” after the serial number on the identification plate, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in table 1 or table 2 of this AD.
(1) Do an ultrasonic inspection for cracks on each accumulator, in accordance with Part B of the Accomplishment Instructions of the applicable service bulletin identified in table 1 of this AD.
(2) Do an ultrasonic inspection for cracks on the screw cap, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in table 2 of this AD.
This paragraph restates the initial and repetitive ultrasonic inspections required by paragraph (l) of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010), with revised service information. For hydraulic system No. 1 inboard brake, and outboard brake accumulators having P/N 601R75138-1 (08-60163-001 or 08-60163-002): Do the inspections specified in paragraph (j) of this AD at the applicable time in paragraph (k)(1), (k)(2), and (k)(3) of this AD.
(1) For any accumulator not having the letter “T” after the serial number on the identification plate and with more than 4,500 flight cycles on the accumulator as of November 4, 2010 (the effective date of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010)): Inspect within 500 flight cycles after November 4, 2010 (the effective date of AD 2010-22-02).
(2) For any accumulator not having the letter “T” after the serial number on the identification plate and with 4,500 flight cycles or less on the accumulator as of November 4, 2010 (the effective date of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010)): Inspect prior to the accumulation of 5,000 flight cycles on the accumulator.
(3) If it is not possible to determine the flight cycles accumulated for any accumulator not having the letter “T” after the serial number on the identification plate: Inspect within 500 flight cycles after November 4, 2010 (the effective date of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010)).
For any accumulator having P/N 601R75138-1 (08-60163-001 or 08-60163-002) and the letter “T” after the serial number on the identification plate, or if the accumulator part number is not listed in paragraph (j) of this AD, the inspection specified in paragraph (j) of this AD is not required.
This paragraph restates the removal required by paragraph (o) of AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011), with reduced compliance time for paragraph (n) of this AD, and no new service information. Within 1,000 flight cycles after December 22, 2011 (the effective date of AD 2011-23-08), remove the hydraulic system No. 3 accumulator, in accordance with Part B of the Accomplishment Instructions of Bombardier Alert Service Bulletin A601R-29-031, Revision A, dated March 26, 2009. Doing the action in this paragraph terminates the requirements of paragraph (h) of this AD.
This paragraph restates the replacement required by paragraph (p) of AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011), with reduced compliance time for paragraph (o) of this AD, and no new service information. Within 4,000 flight cycles or 24 months after December 22, 2011 (the effective date of AD 2011-23-08), whichever occurs first, replace any hydraulic system No. 1, inboard brake or outboard brake accumulator having P/N 601R75138-1 (08-60163-001 or 08-60163-002), with a new accumulator having P/N 601R75139-1 (11093-4), in accordance with the Accomplishment Instructions of the applicable service bulletin identified in table 5 of this AD. Doing the action in this paragraph terminates the requirement for the inspections in paragraph (j) of this AD for that accumulator. As of December 22, 2011 (the effective date of AD 2011-23-08), use only Bombardier Service Bulletin 601R-29-035, Revision A, dated December 8, 2010; or Bombardier Service Bulletin 601R-32-107, Revision B, dated December 8, 2010; as applicable.
This paragraph restates the action required by paragraph (q) of AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011), with reduced compliance time for paragraph (n) of this AD, and no new service information. For airplanes on which Bombardier Service Bulletin 601R-29-035, dated May 11, 2010, is done, and reducer having P/N MS21916D8-6 is installed: At the later of the times specified in paragraph (n)(1) or (n)(2) of this AD: Replace the reducer of the hydraulic system No. 1 with a new reducer, in accordance with Part B of Bombardier Service Bulletin 601R-29-035, Revision A, dated December 8, 2010.
(1) Within 1,200 flight cycles or 8 months after December 22, 2011 (the effective date of AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011)), whichever occurs first.
(2) Within 60 days after the effective date of this AD.
(1) This paragraph provides credit for deactivating the hydraulic system No. 3 accumulator, as required by paragraph (h) of this AD, if the deactivation was performed before November 4, 2010 (the effective date of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010)) using Bombardier Alert Service Bulletin A601R-29-031, dated December 23, 2008.
(2) This paragraph provides credit for removing the hydraulic system No. 2 accumulator as required by paragraph (i) of this AD, if the removal was performed before November 4, 2010 (the effective date of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010)) using Bombardier Service Bulletin 601R-29-032, dated November 12, 2009.
(3) This paragraph provides credit for an ultrasonic inspection for cracks as required by paragraph (j) of this AD, if the ultrasonic inspection was performed before November 4, 2010 (the effective date of AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010)), using the applicable service bulletin identified in table 3 of this AD, or the applicable service bulletin identified in table 4 of this AD.
(4) This paragraph provides credit for removing the hydraulic system No. 3 accumulator as required by paragraph (l) of this AD, if the removal was performed before December 22, 2011 (the effective date of AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011)), using Bombardier Alert Service Bulletin A601R-29-031, dated December 23, 2008.
(5) This paragraph provides credit for replacing any inboard brake or outboard brake accumulator as required by paragraph (m) of this AD, if the replacement was performed before December 22, 2011 (the effective date of AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011)), using Bombardier Service Bulletin 601R-32-107, dated May 11, 2010.
The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office, (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the NYACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD. AMOCs approved previously in accordance with AD 2010-22-02, Amendment 39-16481 (75 FR 64636, October 20, 2010), are approved as AMOCs for the corresponding provisions of this AD. AMOCs approved previously in accordance with AD 2011-23-08, Amendment 39-16859 (76 FR 71241, November 17, 2011), are approved as AMOCs for the corresponding provisions of this AD.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State
Refer to MCAI Canadian Airworthiness Directive CF-2010-24, dated August 3, 2010; and the service bulletins specified in paragraphs (q)(1), (q)(2), (q)(3), (q)(4), (q)(5), (q)(6), (q)(7), (q)(8), and (q)(9) of this AD; for related information.
(1) Canadair Regional Jet Temporary Revision RJ/186-1, dated August 24, 2010, to the Canadair Regional Jet Airplane Flight Manual, CSP A-012.
(2) Bombardier Alert Service Bulletin A601R-29-029, Revision B, dated May 11, 2010, including Appendix A, dated October 18, 2007.
(3) Bombardier Alert Service Bulletin A601R-29-031, Revision A, dated March 26, 2009.
(4) Bombardier Alert Service Bulletin A601R-32-103, Revision D, dated May 11, 2010, including Appendix A, Revision A, dated October 18, 2007.
(5) Bombardier Service Bulletin 601R-29-032, Revision A, dated January 26, 2010.
(6) Bombardier Service Bulletin 601R-29-033, Revision A, dated May 11, 2010, including Appendix A, dated May 5, 2009.
(7) Bombardier Service Bulletin 601R-29-035, Revision A, dated December 8, 2010.
(8) Bombardier Service Bulletin 601R-32-106, Revision A, including Appendix A, dated May 11, 2010.
(9) Bombardier Service Bulletin 601R-32-107, Revision B, dated December 8, 2010.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC) and National Wildlife Refuge System, Fish and Wildlife Service (FWS), U.S. Department of the Interior (DOI).
Notice of Intent to Conduct Scoping Meetings for the Revision of Boundaries, Regulations and Zoning Scheme for Florida Keys National Marine Sanctuary and Key West and Great White Heron National Wildlife Refuges; and to Prepare an Environmental Assessment or Draft Environmental Impact Statement.
In accordance with the National Marine Sanctuaries Act, as amended, (NMSA) and the National Wildlife Refuge System Administration Act of 1966 as amended by the National Wildlife Refuge System Improvement Act of 1997, the Office of National Marine Sanctuaries (ONMS) of the National Oceanic and Atmospheric Administration (NOAA) and the National Wildlife Refuge System of the Fish and Wildlife Service (FWS) have initiated a review of Florida Keys National Marine Sanctuary (FKNMS or sanctuary) boundaries, regulations and zoning scheme. This review of existing regulations and marine zoning may result in changes to regulations, marine zoning, such as altering boundaries of current zones, creating new zones, or amending the regulations that apply to individual zones, and possibly sanctuary boundaries. The review will also include the FWS's Backcountry Management Plan and associated regulations, as authorized by the FWS and State of Florida Management Agreement for Submerged Lands within Boundaries of the Key West and Great White Heron National Wildlife Refuges, to evaluate substantive progress toward implementing the backcountry management goals for the refuges.
All comments on issues related to the boundaries, regulations and zoning scheme of Florida Keys National Marine Sanctuary and the agreement for submerged lands within boundaries of the Key West and Great White Heron National Wildlife Refuges and associated regulations will be considered if received on or before June 29, 2012. See
Comments may be submitted by any of the following methods:
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Sean Morton, Sanctuary Superintendent, FKNMS, Telephone: (305) 809-4700 x233 or Anne Morkill, Refuge Manager, USFWS, Telephone: (305) 872-2239 x209.
In accordance with the National Marine Sanctuaries Act, as amended, (NMSA) (16 U.S.C. 1431
The NMSA (16 U.S.C. 1431
The National Oceanic and Atmospheric Administration (NOAA), a federal agency within the Department of Commerce, administers FKNMS. With 60 percent of its protected area located in Florida state waters, the sanctuary is jointly managed by NOAA and the State of Florida under a co-trustee agreement. Under this agreement, NOAA's primary management partner is the Florida Department of Environmental Protection (DEP). Any amendments to the management plan will be submitted and reviewed pursuant to the State of Florida's clearinghouse process. Any amendments to sanctuary regulations require the approval of the Governor on behalf of and with the approval of the Florida Trustees (the Governor and Cabinet of the State of Florida act as the Board of Trustees of the Internal Improvement Trust Fund) in order to be effective in State waters and submerged lands, except for merely editorial amendments, technical corrections, and emergency regulations.
In FKNMS, NOAA regulates the following: Injuring coral; fishing; discharges and deposits; impacts to the seafloor, including from dredging and dumping; discharges of sewage from vessels; vessel operations, including personal watercraft and airboats, that cause injuries to resources, humans or property; anchoring on coral; wakes near residential shorelines; vessel operations near diving/use of dive flags; releasing exotic species; damage to markers, buoys and scientific equipment; injuring historical resources; use of explosives and electric charges; harvest of marine life species except as allowed by the Florida Fish and Wildlife Conservation Commission; and activities in specified zones. Information on sanctuary regulations can be found online at
The types of zones currently in place in the sanctuary are: ecological reserves, sanctuary preservation areas, wildlife management areas, existing management areas, and special-use areas. A more detailed description of sanctuary zones can be found online at
In the Key West and Great White Heron National Wildlife Refuges, the Fish and Wildlife Service (FWS) may implement restrictions to minimize wildlife disturbance and habitat destruction in state waters from non-wildlife-dependent activities under a joint management agreement with the State of Florida for submerged lands. The FWS protects backcountry resources in state waters with limits on access/operation of vessels, jet skis, and air boats; buffer zones; water skiing; and aircraft water landings. The FWS backcountry management plan is available for download at
NOAA and the FWS anticipate that completion of the revised boundaries, regulations, zoning scheme, backcountry management plan and concomitant documents will require approximately forty-eight months from the date of publication of this notice of intent. This joint review process will occur concurrently with a public process under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
Sanctuary advisory councils are community-based advisory groups established to provide advice and recommendations to the superintendents of the national marine sanctuaries. Councils also serve as liaisons between their constituents in the community and sanctuaries. Sanctuary advisory councils provide advice about sanctuary operations and projects, including education and outreach, research and science, regulations and enforcement, and management planning. They are particularly critical in helping a
The advisory council for Florida Keys National Marine Sanctuary has recommended the following goals and objectives to the sanctuary superintendent for this review:
A. To improve the diversity of natural biological communities in the Florida Keys to protect, and, where appropriate restore and enhance natural habitats, populations and ecological processes overall and in each of these subregions Tortugas, Marquesas, Lower, Middle, and Upper Keys.
1. Reduce stresses from human activities by establishing areas that restrict access to sensitive wildlife populations and habitats.
2. Protect large, contiguous, diverse and interconnected habitats that provide natural spawning, nursery, and permanent residence areas for the replenishment and genetic protection of marine life and protect and preserve all habitats and species.
3. Improve/maintain the condition of the biologically structured habitats including:
4. Increase abundance and condition of selected key species including corals, queen conch, long spined sea urchin, apex predatory fish, birds and sea turtles.
B. To facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities.
1. Minimize conflicts among uses compatible with the National Marine Sanctuary.
2. Prevent heavy concentrations of uses that degrade Sanctuary resources.
3. Provide undisturbed monitoring sites for research and control sites to help determine the effects of human activities.
4. Achieve a vibrant ecologically sustainable ecosystem and economy.
a. Apply the best available science and balanced, conservation based management.
The sanctuary advisory council has also recommended the following guiding principles to the sanctuary superintendent for this review:
1. The regulation/zoning review of Florida Keys National Marine Sanctuary should be conducted with the recognition that there are bordering and overlapping marine management regimes in place, and that these regimes must be considered when contemplating changes to the regulation/marine zoning structure for Florida Keys National Marine Sanctuary.
2. All areas of Florida Keys National Marine Sanctuary should be classified as part of a specific zone, therefore the current “unzoned” area should be classified as a recognized zone type such as “general use area” or “multiple use area”.
3. Each habitat type should be represented in a non-extractive marine zone in each of the biogeographically distinct sub regions of Florida Keys National Marine Sanctuary to achieve replication. The subregions identified were the Tortugas, Marquesas, and Lower, Middle, and Upper Keys.
4. Information on resilient reef areas that can serve as refugia should be taken into account in zoning changes.
5. Temporal zoning should be considered as a tool for protecting spawning aggregations and nesting seasons.
6. The size of individual non-extractive zoned areas, the cumulative total area included in non-extractive zones, and their spatial relationship with one another matter greatly in achieving the resource protection purposes of Florida Keys National Marine Sanctuary.
Members of the public are encouraged to contact the current council members who represent their areas of interest, as one of the roles of the members is to serve as a liaison between the sanctuary and members of the community. Contact information for advisory council members can be found at:
In accordance with Section 304(e) of the NMSA, 16 U.S.C. 1431
There are several reasons for undertaking this review:
• Community and sanctuary advisory council interest in reexamining sanctuary management and conservation strategies, expressed during and subsequent to management plan reviews;
• Periodic evaluation of regulations and sanctuary zones ensures they continue to function best for dynamic natural resources and evolving human uses;
• The Florida Keys National Marine Sanctuary Condition Report 2011 shows human actions continue to degrade the habitat and living resources of the sanctuary, but habitat and resources may be improved with long-term management efforts, regulatory compliance, and community involvement;
• Emerging threats to the resources were largely unanticipated when the regulations were first issued and need to be addressed; and
• Reviews of the sanctuary and refuge backcountry management plans are required by law.
The review process is composed of five primary stages:
(1) Information collection and characterization, including public scoping meetings;
(2) Recommendation of the advisory council of Florida Keys National Marine
(3) Preparation and release of draft revised boundaries, zoning scheme, backcountry management agreement, environmental evaluation, and, if appropriate, regulations or amendments to current regulations;
(4) Public review and comment on the draft boundaries and zoning scheme, proposed regulatory amendments, and other documents mentioned above; and
(5) Preparation and release of final revised boundaries, zoning scheme, backcountry management agreement, environmental evaluation, and, if appropriate, regulations.
NOAA and the FWS anticipate that the completion of the boundaries, zoning scheme, backcountry management agreement and concomitant documents will require approximately forty-eight months.
At this time, NOAA and FWS are opening a public scoping period to:
1. Solicit public comments on the boundaries, regulations and zoning scheme of Florida Keys National Marine Sanctuary; and the submerged lands within the boundaries of the Key West and Great White Heron National Wildlife Refuges and associated regulations; and
2. Help determine the scope of issues to be addressed in the preparation of boundaries, a zoning scheme, a backcountry management agreement, and an environmental assessment or environmental impact statement (EIS), pursuant to the National Environmental Policy Act (NEPA).
To that end, NOAA and FWS will conduct a series of scoping meetings in the Florida Keys and south Florida to collect public comment. These scoping meetings will also help determine the scope of issues to be addressed in the preparation of an environmental assessment or EIS pursuant to the NEPA, 43 U.S.C. 4321
The public scoping meetings will be held on the following dates and at the following locations beginning at 4 p.m. unless otherwise noted:
Monroe County Government Center,Emergency Operations Center/Board of County Commissioners Meeting Room,2798 Overseas Highway,Marathon, FL 33050.
Key Largo Library,101485 Overseas Hwy.,Tradewinds Shopping Center,Key Largo, FL 33037.
Doubletree by Hilton Hotel Grand Key Resort—Key WestTortuga Ballroom,3990 S. Roosevelt Blvd.,Key West, FL 33040.
Florida International University, Modesto A. Monique CampusGraham University Center, Room GC 243,11200 SW. 8th St.,Miami, FL 33199.
Joseph P. Alessandro Office Complex,Rooms 165 C and D,2295 Victoria Ave.,Fort Myers, FL 33901.
This notice confirms that NOAA and the FWS will coordinate their responsibilities under section 106 of the National Historic Preservation Act (NHPA, 16 U.S.C. 470) with the ongoing NEPA process, pursuant to 36 CFR 800.8(a) including the use of NEPA documents and public and stakeholder meetings to also meet the section 106 requirements. The NHPA specifically applies to any agency undertaking that may affect historic properties. Pursuant to 36 CFR 800.16(1)(1), historic properties includes: “any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. The term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.”
In coordinating its responsibilities under the NHPA and NEPA, NOAA and the FWS intend to identify consulting parties; identify historic properties and assess the effects of the undertaking on such properties; initiate formal consultation with the State Historic Preservation Officer, the Advisory Council of Historic Preservation, and other consulting parties; involve the public in accordance with NOAA's NEPA procedures, and develop in consultation with identified consulting parties alternatives and proposed measures that might avoid, minimize or mitigate any adverse effects on historic properties and describe them in any environmental assessment or draft environmental impact statement.
In preparation for this review, NOAA has produced a Florida Keys National Marine Sanctuary Condition Report 2011. The Condition Report provides a summary of resources and their conditions; pressures on those resources; the current condition and trends of water, habitat, living resources; maritime archeological resources; human activities that affect those resources; and management responses to pressures that threaten the integrity of the marine environment. The report serves as a supporting document for the review process, to inform constituents of the current status of sanctuary resources.
An electronic copy of the Florida Keys National Marine Sanctuary Condition Report 2011 is available to the public on the Internet at:
Scoping meetings provide an opportunity to make direct comments to, and share information with, NOAA and the FWS on the boundaries, zones, and regulations of the entire sanctuary, and the management of and regulations for resources associated with the submerged lands of the Key West and Great White Heron National Wildlife Refuges. We encourage the public to participate and welcome any comments on the scope, types, and significance of issues related to the sanctuary's boundaries and zoning scheme, the FWS's backcountry management plan, and associated regulations. In particular, we are interested in hearing about the public's view on the potential management within specified zones in the sanctuary/submerged lands with the two refuges for the next ten to fifteen years.
This notice is published under the authority of the National Marine Sanctuaries Act, as amended (16 U.S.C. 1431
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations that provide guidance to private foundations on program-related investments. These proposed regulations provide a series of new examples illustrating investments that qualify as program-related investments. In addition to private foundations, these proposed regulations affect foundation managers who participate in the making of program-related investments.
Comments and requests for a public hearing must be received by July 18, 2012.
Send submissions to: CC:PA:LPD:PR (REG-144267-11), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-144267-11), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Courtney D. Jones at (202) 622-6070; concerning submissions of comments and requests for a public hearing, Oluwafunmilayo Taylor, (202) 622-7180 (not toll-free numbers).
Section 4944(a) of the Internal Revenue Code (Code) imposes an excise tax on a private foundation that makes an investment that jeopardizes the carrying out of any of the private foundation's exempt purposes (a “jeopardizing investment”). Section 4944(a) also imposes an excise tax on foundation managers who knowingly participate in the making of a jeopardizing investment. Section 4944(b) imposes additional excise taxes on private foundations and foundation managers when investments are not timely removed from jeopardy.
Generally, under § 53.4944-1(a)(2), a jeopardizing investment occurs when, based on the facts and circumstances at the time the investment is made, foundation managers fail to exercise ordinary business care and prudence in providing for the long- and short-term financial needs of the foundation. The determination of whether an investment is a jeopardizing investment is made on an investment-by-investment basis, taking into account the private foundation's entire portfolio. In exercising the requisite standard of care and prudence, foundation managers may take into account the expected investment return, price volatility, and the need for portfolio diversification.
Section 4944(c) excepts program-related investments (“PRIs”) from treatment as jeopardizing investments. The regulations under section 4944(c) define a PRI as an investment: (1) The primary purpose of which is to accomplish one or more of the purposes described in section 170(c)(2)(B); (2) no significant purpose of which is the production of income or the appreciation of property; and (3) no purpose of which is to accomplish one or more of the purposes described in section 170(c)(2)(D) (attempting to influence legislation or participating in or intervening in any political campaign).
An investment is made primarily to accomplish one or more of the purposes described in section 170(c)(2)(B) (referred to as “charitable purposes”) if it significantly furthers the accomplishment of the private foundation's exempt activities and would not have been made but for the relationship between the investment and the accomplishment of those exempt activities. In determining whether a significant purpose of an investment is the production of income or the appreciation of property, § 53.4944-3(a)(2)(iii) provides that it shall be relevant whether investors who are engaged in the investment solely for the production of income would be likely to make the investment on the same terms as the private foundation.
The regulations under other Code sections in Chapter 42 accord special tax treatment to PRIs. For example, § 53.4942(a)-2(c)(3)(ii)(d) excludes PRIs from the assets a private foundation takes into account when determining how much it must distribute under section 4942 as a “distributable amount” for the taxable year. In addition, § 53.4942(a)-3(a)(2)(i) generally includes distributions that qualify as PRIs as “qualifying distributions” for purposes of meeting the distribution requirements under section 4942. Section 53.4943-10(b) excludes PRIs from being treated as business holdings for the purpose of calculating excess business holdings subject to excise tax under section 4943. Sections 53.4945-5(b)(4) and 53.4945-6(c)(1)(i) also make clear that PRIs will not constitute taxable expenditures under section 4945, provided the private foundation exercises “expenditure responsibility” in circumstances in which it is required to do so. Among other expenditure responsibility requirements, a private foundation must require a written commitment from the recipient of the PRI that the funds received will be used only for the purposes of the program-related investment. As noted, the primary purpose of a program-related investment must be the accomplishment of a charitable purpose.
Section 53.4944-3(b) contains nine examples illustrating investments that qualify as PRIs and one example of an investment that does not qualify as a PRI. The existing examples focus on domestic situations principally involving economically disadvantaged individuals and deteriorated urban areas.
The Treasury Department and the IRS are aware that the private foundation community would find it helpful if the regulations could include additional PRI examples that reflect current investment practices and illustrate certain principles, including that: (1) An activity conducted in a foreign country furthers a charitable purpose if the same activity would further a charitable purpose if conducted in the United States; (2) the charitable purposes served by a PRI are not limited to situations involving economically disadvantaged individuals and deteriorated urban areas; (3) the recipients of PRIs need not be within a charitable class if they are the instruments for furthering a charitable purpose; (4) a potentially high rate of return does not automatically prevent an investment from qualifying as program-related; (5) PRIs can be achieved through a variety of
The proposed regulations add nine new examples that illustrate that a wider range of investments qualify as PRIs than the range currently presented in § 53.4944-3(b). The proposed regulations do not modify the existing regulations; rather, they provide additional examples that illustrate the application of the existing regulations. Generally, the charitable activities illustrated in the new examples are based on published guidance and on financial structures described in private letter rulings.
The new examples demonstrate that a PRI may accomplish a variety of charitable purposes, such as advancing science, combating environmental deterioration, and promoting the arts. Several examples also demonstrate that an investment that funds activities in one or more foreign countries, including investments that alleviate the impact of a natural disaster or that fund educational programs for poor individuals, may further the accomplishment of charitable purposes and qualify as a PRI. One example illustrates that the existence of a high potential rate of return on an investment does not, by itself, prevent the investment from qualifying as a PRI. Another example illustrates that a private foundation's acceptance of an equity position in conjunction with making a loan does not necessarily prevent the investment from qualifying as a PRI, and two examples illustrate that a private foundation's provision of credit enhancement can qualify as a PRI.
The last example demonstrates that a guarantee arrangement may qualify as a PRI. The proposed regulations address solely the impact of section 4944 on the facts described and do not address whether there is a qualifying distribution under section 4942. However, the Treasury Department and the IRS conclude that, based on the facts described in the last example, there would be no qualifying distribution under section 4942 at the time the foundation enters into the guarantee arrangement. Under certain circumstances, a private foundation may treat payments made under a guarantee arrangement as qualifying distributions.
Finally, the proposed regulations include examples illustrating that loans and capital may be provided to individuals or entities that are not within a charitable class themselves, if the recipients are the instruments through which the private foundation accomplishes its exempt activities.
Paragraph (b),
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
The principal author of these proposed regulations is Courtney D. Jones, Office of the Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the Treasury Department and the IRS participated in their development.
Excise taxes, Foundations, Investments, Lobbying, Reporting and recordkeeping requirements, Trusts and trustees.
Accordingly, 26 CFR part 53 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(b) * * *
X is a business enterprise that researches and develops new drugs. X's research demonstrates that a vaccine can be developed within ten years to prevent a disease that predominantly affects poor individuals in developing countries. However, neither X nor other commercial enterprises like X will devote their resources to develop the vaccine because the potential return on investment is significantly less than required by X or other commercial enterprises to undertake a project to develop new drugs. Y, a private foundation, enters into an investment agreement with X in order to induce X to develop the vaccine. Pursuant to the investment agreement, Y purchases shares of the common stock of S, a subsidiary corporation that X establishes to research and develop the vaccine. The agreement requires S to distribute the vaccine to poor individuals in developing countries at a price that is affordable to the affected population. The agreement also requires S to publish the research results, disclosing substantially all information about the results that would be useful to the interested public. S agrees that the publication of its research results will be made as promptly after the completion of the research as is reasonably possible without jeopardizing S's right to secure patents necessary to protect its ownership or control of the results of the research. The expected rate of return on Y's investment in S is less than the expected market rate of return for an investment of similar risk. Y's primary purpose in making the investment is to advance science. No significant purpose of the investment involves the production of income or the appreciation of property. The investment significantly furthers the accomplishment of Y's exempt activities and would not have been made but for such relationship between the investment and Y's
Q, a developing country, produces a substantial amount of recyclable solid waste materials that are currently disposed of in landfills and by incineration, contributing significantly to environmental deterioration in Q. X is a new business enterprise located in Q. X's only activity will be collecting recyclable solid waste materials in Q and delivering those materials to recycling centers that are inaccessible to a majority of the population. If successful, the recycling collection business would prevent pollution in Q caused by the usual disposition of solid waste materials. X has obtained funding from only a few commercial investors who are concerned about the environmental impact of solid waste disposal. Although X made substantial efforts to procure additional funding, X has not been able to obtain sufficient funding because the expected rate of return is significantly less than the acceptable rate of return on an investment of this type. Because X has been unable to attract additional investors on the same terms as the initial investors, Y, a private foundation, enters into an investment agreement with X to purchase shares of X's common stock on the same terms as X's initial investors. Although there is a high risk associated with the investment in X, there is also the potential for a high rate of return if X is successful in the recycling business in Q. Y's primary purpose in making the investment is to combat environmental deterioration. No significant purpose of the investment involves the production of income or the appreciation of property. The investment significantly furthers the accomplishment of Y's exempt activities and would not have been made but for such relationship between the investment and Y's exempt activities. Accordingly, the purchase of the common stock is a program-related investment.
Assume the facts as stated in
X is a business enterprise located in V, a rural area in State Z. X employs a large number of poor individuals in V. A natural disaster occurs in V, causing significant damage to the area. The business operations of X are harmed because of damage to X's equipment and buildings. X has insufficient funds to continue its business operations and conventional sources of funds are unwilling or unable to provide loans to X on terms it considers economically feasible. In order to enable X to continue its business operations, Y, a private foundation, makes a loan to X bearing interest below the market rate for commercial loans of comparable risk. Y's primary purpose in making the loan is to provide relief to the poor and distressed. No significant purpose of the loan involves the production of income or the appreciation of property. The loan significantly furthers the accomplishment of Y's exempt activities and would not have been made but for such relationship between the loan and Y's exempt activities. Accordingly, the loan is a program-related investment.
A natural disaster occurs in W, a developing country, causing significant damage to W's infrastructure. Y, a private foundation, makes loans bearing interest below the market rate for commercial loans of comparable risk to H and K, poor individuals who live in W, to enable each of them to start a small business. H will open a roadside fruit stand. K will start a weaving business. Conventional sources of funds were unwilling or unable to provide loans to H or K on terms they consider economically feasible. Y's primary purpose in making the loans is to provide relief to the poor and distressed. No significant purpose of the loans involves the production of income or the appreciation of property. The loans significantly further the accomplishment of Y's exempt activities and would not have been made but for such relationship between the loans and Y's exempt activities. Accordingly, the loans to H and K are program-related investments.
X is a limited liability company treated as a partnership for federal income tax purposes. X purchases coffee from poor farmers residing in a developing country, either directly or through farmer-owned cooperatives. To fund the provision of efficient water management, crop cultivation, pest management, and farm management training to the poor farmers by X, Y, a private foundation, makes a loan to X bearing interest below the market rate for commercial loans of comparable risk. The loan agreement requires X to use the proceeds from the loan to provide the training to the poor farmers. X would not provide such training to the poor farmers absent the loan. Y's primary purpose in making the loan is to educate poor farmers about advanced agricultural methods. No significant purpose of the loan involves the production of income or the appreciation of property. The loan significantly furthers the accomplishment of Y's exempt activities and would not have been made but for such relationship between the loan and Y's exempt activities. Accordingly, the loan is a program-related investment.
X is a social welfare organization that is recognized as an organization described in section 501(c)(4). X was formed to develop and encourage interest in painting, sculpture and other art forms by, among other things, conducting weekly community art exhibits. X needs to purchase a large exhibition space to accommodate the demand for exhibition space within the community. Conventional sources of funds are unwilling or unable to provide funds to X on terms it considers economically feasible. Y, a private foundation, makes a loan to X at an interest rate below the market rate for commercial loans of comparable risk to fund the purchase of the new space. Y's primary purpose in making the loan is to promote the arts. No significant purpose of the loan involves the production of income or the appreciation of property. The loan significantly furthers the accomplishment of Y's exempt activities and would not have been made but for such relationship between the loan and Y's exempt activities. Accordingly, the loan is a program-related investment.
X is a non-profit corporation that provides child care services in a low-income neighborhood, enabling many residents of the neighborhood to be gainfully employed. X meets the requirements of section 501(k) and is recognized as an organization described in section 501(c)(3). X's current child care facility has reached capacity and has a long waiting list. X has determined that the demand for its services warrants the construction of a new child care facility in the same neighborhood. X is unable to obtain a loan from conventional sources of funds including B, a commercial bank, because X lacks sufficient credit to support the financing of a new facility. Pursuant to a deposit agreement, Y, a private foundation, deposits $h in B, and B lends an identical amount to X to construct the new child care facility. The deposit agreement requires Y to keep $h on deposit with B during the term of X's loan and provides that if X defaults on the loan, B may deduct the amount of the default from the deposit. To facilitate B's access to the funds in the event of default, the agreement requires that the funds be invested in instruments that allow B to access them readily. The deposit agreement also provides that Y will earn interest at a rate of t% on the deposit. The t% rate is substantially less than Y could otherwise earn on this sum of money, if Y invested it elsewhere. The loan agreement between B and X requires X to use the proceeds from the loan to construct the new child care facility. Y's primary purpose in making the deposit is to further its educational purposes by enabling X to provide child care services within the meaning of section 501(k). No significant purpose of the deposit involves the production of income or the appreciation of property. The deposit significantly furthers the accomplishment of Y's exempt activities and would not have been made but for such relationship between the deposit and Y's exempt activities. Accordingly, the deposit is a program-related investment.
Assume the same facts as stated in
(c)
Federal Communications Commission.
Proposed rule; dismissal.
The Audio Division dismisses the petition for rule making filed by KM Radio of Independence, LLC, proposing the allotment of Channel 238A at Mineral Point, Wisconsin, and the substitution of reserved Channel *254A for reserved vacant Channel *238A at Asbury, Iowa, 73 FR 50,297, and terminates the proceeding.
Deborah Dupont, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Fish and Wildlife Service, Interior.
Proposed rule; availability of draft environmental assessment.
We, the U.S. Fish and Wildlife Service (Service), propose to amend the regulations at 50 CFR part 17, which implement the Endangered Species Act of 1973, as amended (ESA), to create a special rule under authority of section 4(d) of the ESA that provides measures that are necessary and advisable to provide for the conservation of the polar bear (
We will consider comments we receive on or before June 18, 2012. We must receive requests for public hearings, in writing, at the address shown in the
•
•
Please indicate to which document, the proposed rule or the draft environmental assessment, your comments apply. We will post all comments on
Charles Hamilton, Marine Mammals Management Office, U.S. Fish and Wildlife Service, Region 7, 1011 East Tudor Road, Anchorage, AK 99503; telephone 907-786-3309. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.
In response to litigation against the Service challenging our December 16, 2008 final 4(d) special rule for the polar bear, the District Court for the District of Columbia (Court) found that although the final 4(d) special rule for the polar bear was consistent with the ESA, the Service violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act by failing to conduct a NEPA analysis when it promulgated the final 4(d)
Neither the 2008 listing of polar bear as a threatened species under the ESA nor the 2011 designation of critical habitat would be affected if this proposed rule is finalized. On the ground conservation management of the polar bear under both the May 15, 2008 interim 4(d) and the December 16, 2008 final 4(d), are substantively similar; this proposed 4(d) special rule would reinstate the regulatory parameters afforded the polar bear from December 16, 2008 until November 18, 2011. Therefore, management of the species, as well as requirements placed on individuals, local communities, and industry, within the range of the polar bear, would not change if this proposed 4(d) special rule is finalized.
Under section 4(d) of the ESA, the Secretary of the Interior has discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of the species. The Secretary also has the discretion to prohibit by regulation with respect to a threatened species any act prohibited by section 9(a)(1) of the ESA.
Exercising this discretion, the Service has developed general prohibitions for threatened species in 50 CFR 17.31 and exceptions to those prohibitions in 50 CFR 17.32. The proposed 4(d) special rule in most instances adopts the existing conservation regulatory requirements under the Marine Mammal Protection Act of 1972, as amended (MMPA), and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as the appropriate regulatory provisions for this threatened species. If an activity is not authorized or exempted under the MMPA or CITES, and that activity would result in an act otherwise prohibited under the general prohibitions of the ESA for threatened species, then the general prohibitions at 50 CFR 17.31 would apply. We would require a permit for such an activity as specified in our regulations. In addition, this proposed 4(d) special rule would provide that any incidental take of polar bears that results from activities that occur outside of the current range of the species is not a prohibited act under the ESA. This proposed 4(d) special rule would not affect any existing requirements under the MMPA, including incidental take restrictions, or CITES, regardless of whether the activity occurs inside or outside the current range of the polar bear. Further, nothing in this proposed 4(d) special rule affects the consultation requirements under section 7 of the ESA.
We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning:
(1) Suitability of the proposed rule for the conservation, recovery, and management of the polar bear.
(2) Additional provisions the Service may wish to consider to conserve, recover, and manage the polar bear.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
On May 15, 2008, the Service published a final rule listing the polar bear (
On October 17, 2011, the D.C. District Court found that although the final 4(d) special rule was consistent with the ESA, the Service violated the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
The Service is conducting a NEPA analysis and has prepared a draft environmental assessment (EA) to address the determinations made by the Court. The NEPA analysis accomplishes three goals: (1) Determine if any action, or the absence of action, will have significant environmental impacts; (2) address any unresolved environmental issues; and (3) provide a basis for a decision on a proposal. The draft EA
The Service will analyze and respond to all substantive comments received on both the draft EA and proposed 4(d) special rule before issuing a final 4(d) special rule. Public participation is an important part of the NEPA process. Thus, while we now propose a particular version of the 4(d) special rule, we retain flexibility to select among the four alternatives analyzed in the EA when issuing the final 4(d) special rule.
In the United States, the polar bear is protected and managed under three laws: the ESA; the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The purposes of the ESA are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in the ESA. The ESA is implemented through regulations found in the Code of Federal Regulations (CFR). When a species is listed as endangered, certain actions are prohibited under section 9 of the ESA, as specified in § 17.21 of title 50 of the CFR (50 CFR). These include, among others, take within the United States, within the territorial seas of the United States, or upon the high seas; import; export; and shipment in interstate or foreign commerce in the course of a commercial activity. Additionally, the consultation process under section 7 of the ESA requires that Federal agencies ensure actions they authorize, fund, permit, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species.
The ESA does not specify particular prohibitions and exceptions to those prohibitions for threatened species. Instead, under section 4(d) of the ESA, the Secretary of the Interior (Secretary) was given the discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary also has the discretion to prohibit by regulation with respect to any threatened species any act prohibited under section 9(a)(1) of the ESA. Exercising this discretion, the Service has developed general prohibitions (50 CFR 17.31) and exceptions to those prohibitions (50 CFR 17.32) under the ESA that apply to most threatened species. Under § 17.32, permits may be issued to allow persons to engage in otherwise prohibited acts.
Alternately, for other threatened species, the Service develops specific prohibitions and exceptions that are tailored to the specific conservation needs of the species. In such cases, some of the prohibitions and authorizations under 50 CFR 17.31 and 17.32 may be appropriate for the species and incorporated into a special rule under section 4(d) of the ESA, but the 4(d) special rule will also include provisions that are tailored to the specific conservation needs of the threatened species and which may be more or less restrictive than the general provisions at 50 CFR 17.31.
The MMPA was enacted to protect and conserve marine mammal species, or population stocks of those species, so that they continue to be significant functioning elements in the ecosystem of which they are a part. Consistent with this objective, management should have a goal to maintain or return marine mammals to their optimum sustainable population. The MMPA provides a moratorium on importation and the issuance of permits for the taking of marine mammals and their products, unless exempted or authorized under the MMPA. Prohibitions also restrict:
• Take of marine mammals on the high seas;
• Take of any marine mammal in waters or on lands under the jurisdiction of the United States;
• Use of any port, harbor, or other place under the jurisdiction of the United States to take or import a marine mammal;
• Possession of any marine mammal or product taken in violation of the MMPA;
• Transport, purchase, sale, export, or offer to purchase, sell, or export any marine mammal or product taken in violation of the MMPA or for any purpose other than public display, scientific research, or enhancing the survival of the species or stock; and
• Import.
Signed in 1973, CITES protects species at risk from international trade and is implemented by more than 170 countries, including the United States. The CITES regulates commercial and noncommercial international trade in selected animals and plants, including parts and products made from the species, through a system of permits. Under CITES, a species is listed at one of three levels of protection, each of which have different document requirements. Appendix I species are threatened with extinction and are or may be affected by trade; CITES directs its most stringent controls at activities involving these species. Appendix II species are not necessarily threatened with extinction now, but may become so if not regulated. Appendix III species are listed by a range country to obtain international cooperation in regulating and monitoring international trade. Polar bears were listed in Appendix II of CITES on July 7, 1975. Trade in CITES species is prohibited unless exempted or accompanied by the required CITES documents, and CITES documents cannot be issued until specific biological and legal findings have been made. The CITES does not itself regulate take or domestic trade of polar bears; however, it contributes to the conservation of the species by regulating international trade in polar bears and polar bear parts or products.
We assessed the conservation needs of the polar bear in light of the extensive protections already provided to the species under the MMPA and CITES. This proposed 4(d) special rule, in most instances, synchronizes the management of the polar bear under the ESA with management provisions under the MMPA and CITES. Because a special rule under section 4(d) of the ESA can only specify ESA prohibitions and available authorizations for this species, all other applicable provisions of the ESA and other statutes, such as the MMPA and CITES, would be unaffected by a proposed 4(d) special rule.
Under this proposed 4(d) special rule, if an activity is authorized or exempted under the MMPA or CITES, we would not require any additional authorization under the ESA regulations for that activity. However, if the activity is not authorized or exempted under the MMPA or CITES and the activity would result in an act that would be otherwise prohibited under the ESA regulations at 50 CFR 17.31, the prohibitions of § 17.31 would apply, and permits would
Neither the proposed 4(d) special rule nor any of the identified alternatives would remove or alter in any way the consultation requirements under section 7 of the ESA.
In our draft EA analyzing options for a possible special rule under section 4(d) of the ESA for the polar bear, we considered four alternatives. These were:
In addition, this 4(d) special rule provides that any incidental take of polar bears resulting from an activity that occurs
There is only one substantive difference between this proposed 4(d) special rule and the interim 4(d) special rule published on May 15, 2008. The interim 4(d) special rule provides that any incidental take of polar bears resulting from activities that occur
This interim 4(d) special rule has been in effect since the Court ruled to vacate the Service's final 4(d) special rule on November 18, 2011.
However, unlike the proposed and interim 4(d) special rules, this alternative does not contain a provision to expressly exempt any geographic areas from the prohibitions in § 17.31 of the ESA implementing regulations regarding incidental taking of polar bears.
Promulgation of Alternatives 1, 2, and 4, would revise, while Alternative 3 would uphold our January 30, 2012 final 4(d) special rule at 50 CFR 17.40 (q) by adopting, in most instances, the conservation provisions of the MMPA and CITES as the appropriate regulatory provisions for this threatened species. These MMPA and CITES provisions regulate incidental take, intentional take (including take for self-defense or welfare of the animal), import, export, transport, purchase and sale or offer for sale or purchase, pre-Act specimens, and subsistence handicraft trade and cultural exchanges.
Two of the alternatives, Alternative 2 (this proposed 4(d) special rule) and Alternative 3, would further provide that any incidental take of polar bears resulting from activities that occur outside a certain prescribed geographic area is not a prohibited act under the ESA, although those activities would remain subject to the incidental take provisions in the MMPA and the consultation requirements under section 7 of the ESA.
In the following sections, we provide explanation of how the various provisions of the ESA, MMPA, and CITES interrelate and how the regulatory provisions of a 4(d) special rule are necessary and advisable to provide for the conservation of the polar bear. We also explain our discretionary decision to prohibit by regulation with respect to the polar bear certain acts prohibited in section 9(a)(1) of the ESA.
Take of protected species is prohibited under both the ESA and MMPA; however, the definition of “take” differs somewhat between the two Acts. “Take” is defined in the ESA as meaning to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in any such conduct.” 16 U.S.C. 1532(19). The MMPA defines “take” as meaning to “harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. 1362(13). A number of terms appear in both definitions; however, the terms “harm”, “pursue”, “shoot”, “wound”, “trap”, and “collect” are included in the ESA definition but not in the MMPA definition. Nonetheless, the ESA prohibitions on “pursue”, “shoot”, “wound”, “trap”, and “collect” are within the scope of the MMPA “take” definition. As further discussed below, a person who pursues, shoots, wounds, traps, or collects an animal, or attempts to do any of these acts, has harassed (which includes injury), hunted, captured, or killed—or attempted to harass, hunt, capture, or kill—the animal in violation of the MMPA.
The term “harm” is also included in the ESA definition of “take”, but is less obviously related to “take” under the MMPA definition. Under our ESA regulations, “harm” is defined at 50 CFR 17.3 as “an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” While the term “harm” in the ESA “take” definition encompasses negative effects through habitat modifications, it requires evidence that the habitat modification or degradation will result in specific effects on identifiable wildlife: actual death or injury. As noted by Supreme Court
The term “harass” is also defined in the MMPA and our ESA regulations. Under our ESA regulations, “harass” refers to an “intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 CFR 17.3. With the exception of the activities mentioned below, “harassment” under the MMPA means “any act of pursuit, torment, or annoyance” that “has the potential to injure a marine mammal or marine mammal stock in the wild” (Level A harassment), or “has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering” (Level B harassment). 16 U.S.C. 1362(18)(A).
Section 319 of the National Defense Authorization Act for Fiscal Year 2004 (NDAA; Pub. L. 108-136) revised the definition of “harassment” under section 3(18) of the MMPA as it applies to military readiness or scientific research conducted by or on behalf of the Federal Government. Section 319 defined harassment for these purposes as “(i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.” 16 U.S.C. 1362(B).
In most cases, the definitions of “harassment” under the MMPA encompass more activities than does the term “harass” under the Service's ESA regulations. For example, while the statutory definition of “harassment” under the MMPA that applies to all activities other than military readiness and scientific research conducted by or on behalf of the Federal Government includes any act of pursuit, torment, or annoyance that has the “potential to injure” or the “potential to disturb” marine mammals in the wild by causing disruption of key behavioral patterns, the Service's ESA definition of “harass” applies only to an act or omission that creates the “likelihood of injury” by annoying the wildlife to such an extent as to significantly disrupt key behavioral patterns. Furthermore, even the more narrow definition of “harassment” for military readiness activities or research by or on behalf of the Federal Government includes an act that injures or has “the significant potential to injure” or an act that disturbs or is “likely to disturb,” which is a stricter standard than the “likelihood of injury” standard under the ESA definition of “harass”. The one area where the ESA definition of “harass” is broader than the MMPA definition of “harassment” is that the ESA definition of “harass” includes acts or omissions whereas the MMPA definition of “harassment” includes only acts. However, we cannot foresee circumstances under which the management of polar bears would differ due to this difference in the two definitions.
In addition, although the ESA “take” definition includes “harm” and the MMPA “take” definition does not, this difference should not result in a difference in management of polar bears. As discussed earlier, application of the ESA “harm” definition requires evidence of demonstrable injury or death to actual, individual polar bears. The breadth of the MMPA “harassment” definition requires only potential injury or potential disturbance, or, in the case of military readiness activities, likely disturbance causing disruption of key behavioral patterns. Thus, the evidence required to establish “harm” under the ESA would provide the evidence of potential injury or potential or likely disturbance that causes disruption of key behavioral patterns needed to establish “harassment” under the MMPA.
In summary, the definitions of “take” under the MMPA and ESA differ in terminology; however, they are similar in application. We find the definitions of “take” under the Acts to be comparable and where they differ, we find that, due to the breadth of the MMPA's definition of “harassment”, the MMPA's definition of “take” is, overall, more protective. Therefore, we find that managing polar bears under the MMPA adequately provides for the conservation of polar bears. Where a person or entity does not have authorization for an activity that causes “take” under the MMPA, or is not in compliance with their MMPA take authorization, the definition of “take” under the ESA will be applied.
The take restrictions under the MMPA and those typically provided for threatened species under the ESA through our regulations at 50 CFR 17.31 or a special rule under section 4(d) of the ESA apply regardless of whether the action causing take is purposefully directed at a marine mammal or not (i.e., is incidental). Incidental take refers to the take of a protected species that is incidental to, but not the purpose of, an otherwise lawful activity. Under Alternative 2 (this proposed 4(d) special rule), Alternative 3, and Alternative 4, incidental take provisions of the MMPA and its implementing regulations would be in effect. If a person or entity lacked authorization for MMPA incidental take, then ESA take prohibitions would also apply, except that the geographic scope of incidental take prohibitions under the ESA would be limited as detailed in paragraph 4 of the special rules constituting Alternatives 2 or 3. This arrangement is necessary and advisable to provide for the conservation of the species. The Secretary has the discretion to prohibit by regulation with respect to the polar bear any act prohibited under section 9(a)(1) of the ESA.
Section 7(a)(2) of the ESA requires Federal agencies to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat. Regulations that implement section 7(a)(2) of the ESA (50 CFR part 402) define “jeopardize the continued existence of” as to “engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 CFR 402.02.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (known as the “action agency”) must enter into consultation with the Service, subject to the exceptions set out in 50 CFR 402.14(b) and the provisions of § 402.03. It is through the consultation process under section 7 of the ESA that incidental take is identified and, if necessary, Federal agencies receive authorization for incidental take. The section 7 consultation requirements also apply to the Service and require that we consult internally to ensure actions we
As a result of consultation, we document compliance with the requirements of section 7(a)(2) of the ESA through our issuance of a concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat, or issuance of a biological opinion for Federal actions that may adversely affect listed species or critical habitat. In those cases where the Service determines an action that is likely to adversely affect polar bears will not likely result in jeopardy but is anticipated to result in incidental take, the biological opinion will describe the amount and extent of incidental take that is reasonably certain to occur. Under section 7(b)(4) of the ESA, incidental take of a marine mammal such as the polar bear cannot be authorized under the ESA until the applicant has received incidental take authorization under the MMPA. If such authorization is in place, the Service will also issue a statement that specifies the amount or extent of such take; any reasonable and prudent measures considered appropriate to minimize such effects; terms and conditions to implement the measures necessary to minimize effects; and procedures for handling any animals actually taken. Nothing in Alternatives 2, 3, and 4 would affect the issuance or contents of the biological opinions for polar bears or the issuance of an incidental take statement, although incidental take resulting from activities that occur outside of the geographic range specified in paragraph 4, as provided in Alternatives 2 and 3, would not be subject to the taking prohibition of the ESA.
The regulations at 50 CFR 17.32(b) provide a mechanism for non-Federal parties to obtain authorization for the incidental take of threatened wildlife. This process requires that an applicant specify effects to the species and steps to minimize and mitigate such effects. If the Service determines that the mitigation measures will minimize effects of any potential incidental take, and that take will not appreciably reduce the likelihood of survival and recovery of the species, we may grant incidental take authorization. This authorization would include terms and conditions deemed necessary or appropriate to insure minimization of take, as well as monitoring and reporting requirements. Incidental take restrictions both inside and outside the current range of the polar bear that would apply under Alternative 2 are described below.
Under Alternative 2 (this proposed 4(d) special rule), if incidental take has been authorized under section 101(a)(5) of the MMPA for take of a polar bear by commercial fisheries, or by the issuance of an incidental harassment authorization (IHA) or through incidental take regulations for all other activities, we would not require an additional incidental take permit under the ESA issued in accordance with 50 CFR 17.32(b) for non-Federal parties because we have determined that the MMPA restrictions are more protective or as protective as permits issued under 50 CFR 17.32(b). In addition, while an incidental take statement under section 7 of the ESA would be issued, any take would be covered through the MMPA authorization. However, any incidental take that does occur from activities within the current range of the polar bear that has not been authorized under the MMPA, or is not in compliance with the MMPA authorization, would remain prohibited under 50 CFR 17.31 and subject to full penalties under both the ESA and MMPA. Further, the ESA's citizen suit provision would be unaffected by this proposed special rule anywhere within the current range of the species to address alleged unlawful incidental take. Any person or entity that is allegedly causing the incidental take of polar bears as a result of activities within the range of the species without appropriate MMPA authorization could be challenged through this provision as that would be a violation of 50 CFR 17.31. The ESA citizen suit provision would also remain available for alleged failure to consult under section 7 of the ESA, regardless of whether the agency action occurs inside or outside the current range of the polar bear. Prohibitions on direct take and commercial activities are also applicable without regard to the location of the direct take or commercial activity.
Sections 101(a)(5)(A) and (D) of the MMPA give the Service the authority to allow the incidental, but not intentional, taking of small numbers of marine mammals, in response to requests by U.S. citizens (as defined in 50 CFR 18.27(c)) engaged in a specified activity (other than commercial fishing) in a specified geographic region. Incidental take cannot be authorized under the MMPA unless the Service finds that the total of such taking will have no more than a negligible impact on the species or stock, and that such taking will not have an unmitigable adverse impact on the availability of the species or stock for take for subsistence uses of Alaska Natives.
If any take that is likely to occur will be limited to nonlethal harassment of the species, the Service may issue an incidental harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA. The IHAs cannot be issued for a period longer than 1 year. If the taking may result in more than harassment, regulations under section 101(a)(5)(A) of the MMPA must be issued, which may be in place for no longer than 5 years. Once regulations making the required findings are in place, we issue letters of authorization (LOAs) that authorize the incidental take for specific projects that fall under the provisions covered in the regulations. The LOAs expire after 1 year and contain activity-specific monitoring and mitigation measures that ensure that any take remains at the negligible level. In either case, the IHA or the regulations must set forth: (1) Permissible methods of taking; (2) means of effecting the least practicable adverse impact on the species and their habitat and on the availability of the species for subsistence uses; and (3) requirements for monitoring and reporting.
While a determination of negligible impact is made at the time the regulations are issued based on the best information available, each request for an LOA is also evaluated to ensure it is consistent with the negligible impact determination. The evaluation consists of the type and scope of the individual project and an analysis of all current species information, including the required monitoring reports from previously issued LOAs, and considers the effects of the individual project when added to all current LOAs in the geographic area. Through these means, the type and level of take of polar bears is continuously evaluated throughout the life of the regulations to ensure that any take remains at the level of negligible impact.
Negligible impact under the MMPA, as defined at 50 CFR 18.27(c), is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival”. This is a more protective standard than standards for
The length of the authorizations under the MMPA are limited to 1 year for IHAs, and 5 years for incidental take regulations, thus ensuring that activities likely to cause incidental take of polar bears are periodically reviewed and mitigation measures updated if necessary to ensure that take remains at a negligible level. Incidental take permits and statements under the ESA have no such statutory time limits. Incidental take statements under the ESA remain in effect for the life of the Federal action, unless re-initiation of consultation is triggered. Incidental take permits under the ESA for non-Federal activities can be for various durations (see 50 CFR 17.32(b)(4)), with some permits valid for up to 50 years. Therefore, the incidental take standards under the MMPA, because of their stricter standards and mandatory periodic re-evaluation, provide a greater level of protection for the polar bear than adoption of the standards under the ESA at 50 CFR 17.31 and 17.32. As such, Alternatives 2, 3, and 4 would adopt the MMPA standards for authorizing Federal and non-Federal incidental take as necessary and advisable to provide for the conservation of the polar bear and would by regulation prohibit with respect to polar bears certain acts prohibited in section 9(a)(1) of the ESA. Without a 4(d) special rule, the MMPA standards would continue to apply, as nothing in a 4(d) special rule affects MMPA protections in any way, but an additional ESA process to authorize the incidental take would need to be undertaken as well.
As stated above, when the Service issues authorizations for otherwise prohibited incidental take under the MMPA, we must determine that those activities will result in no more than a negligible impact on the species or stock, and that such taking will not have an unmitigable adverse impact on the availability of the species or stock for subsistence use take. The distinction of conducting the analysis at the species or stock level may be an important one in some cases. Under the ESA, the “jeopardy” standard, for Federal incidental take, and the “appreciably reduce the likelihood of survival and recovery” standard, for non-Federal take, are always applied to the listed entity (i.e., the listed species, subspecies, or distinct population segment). The Service is not given the discretion under the ESA to assess “jeopardy” and “appreciably reduce the likelihood of survival and recovery” at a smaller scale (e.g., stock) unless the listed entity is in fact smaller than the entire species or subspecies (e.g., a distinct population segment). Therefore, because avoiding greater than negligible impact to a stock is tighter than avoiding greater than negligible impact to an entire species, the MMPA may be much more protective than the ESA for activities that occur only within one stock of a listed species. In the case of the polar bear, the species is listed as threatened throughout its range under the ESA, while multiple stocks are recognized under the MMPA. Therefore, a variety of activities that may impact polar bears will be assessed at a finer scale under the MMPA than they would have been otherwise under the ESA.
In addition, during the process of authorizing any MMPA incidental take under section 101(a)(5), we must conduct an intra-Service consultation under section 7(a)(2) of the ESA to ensure that providing an MMPA incidental take authorization to an applicant is an act that is not likely to jeopardize the continued existence of the polar bear, nor adversely modify critical habitat. As the standard for approval under MMPA section 101(a)(5) is no more than “negligible impact” to the affected marine mammal species or stock, we believe that any MMPA-compliant authorization or regulation would ordinarily meet the ESA section 7(a)(2) standards of avoiding jeopardy to the species. Under any of the three considered alternatives of a proposed special rule, any incidental take that could not be authorized under section 101(a)(5) of the MMPA would remain subject to the ESA prohibitions of 50 CFR 17.31.
To the extent that any Federal actions are found to comport with the standards for MMPA incidental take authorization, we fully anticipate that any such section 7 consultation under the ESA would result in a finding that the proposed action is not likely to jeopardize the continued existence of the polar bear. In addition, we anticipate that any such proposed actions would augment protection and enhance Service management of the polar bear through the application of site-specific mitigation measures contained in an authorization issued under the MMPA. Therefore, we do not anticipate at this time, in light of the ESA jeopardy standard and the maximum duration of these MMPA authorizations, that there could be a conservation basis for requiring any entity holding incidental take authorization under the MMPA and in compliance with all measures under that authorization (e.g., mitigation) to implement further measures under the ESA as long as the action does not go beyond the scope and duration of the MMPA take authorization.
For example, affiliates of the oil and gas industry have requested, and we have issued regulations since 1991 for, incidental take authorization for activities in occupied polar bear habitat. This includes regulations issued for incidental take in the Beaufort Sea from 1993 to the present, and regulations issued for incidental take in the Chukchi Sea for the period 1991-1996 and, more recently, regulations for similar activities and potential incidental take in the Chukchi Sea for the period 2008-2013. A detailed history of our past regulations for the Beaufort and Chukchi Sea regions can be found in the final regulations published on August 3, 2011 (76 FR 47010), and June 11, 2008 (73 FR 33212), respectively.
The mitigation measures that we have required for all oil and gas exploration and development projects include a site-specific plan of operation and a site-specific polar bear interaction plan. Site-specific plans outline the steps the applicant will take to minimize effects on polar bears, such as garbage disposal and snow management procedures to reduce the attraction of polar bears, an outlined chain-of-command for responding to any polar bear sighting, and polar bear awareness training for employees. The training program is designed to educate field personnel about the dangers of bear encounters and to implement safety procedures in the event of a bear sighting. Most often, the appropriate response involves merely monitoring the animal's activities until they move out of the area. However, personnel may be instructed to leave an area where bears are seen.
Additional mitigation measures are also required on a case-by-case basis depending on the location, timing, and specific activity. For example, we may require trained marine mammal observers for offshore activities; pre-activity surveys (e.g., aerial surveys, infra-red thermal aerial surveys, or polar bear scent-trained dogs) to determine the presence or absence of dens or denning activity; measures to protect pregnant polar bears during denning activities (den selection, birthing, and maturation of cubs), including incorporation of a 1-mile (1.6-kilometer) buffer surrounding known dens; and
The Service also issues intentional take authorizations under sections 101 (a)(4)(A), 109(h), and 112(c) of the MMPA, which can authorize citizens to take polar bears by harassment (nonlethal deterrence activities) for the protection of both human life and polar bears while conducting activities in polar bear habitat. The intent of the interaction plan and training activities is to allow for the early detection and appropriate response to polar bears that may be encountered during operations, which minimizes the potential for injury or lethal take of bears in defense of human life. The Service provides guidance and training regarding the appropriate harassment response necessary for polar bears. Deterrent strategies may include use of tools such as vehicles, vehicle horns, vehicle sirens, vehicle lights, spot lights, or, if necessary, pyrotechnics (e.g., cracker shells). Intentional take authorizations have been issued to the oil and gas industry, the mining industry, local North Slope communities, scientific researchers, and the military. These MMPA-specific authorizations have been successful at protecting both communities and polar bears for many years.
Alternative 2 (this proposed 4(d) special rule) and Alternative 3 include a separate provision (paragraph (4)) that addresses take under the ESA that is incidental to an otherwise lawful activity that occurs outside a particular geographic range. Under paragraph (4) of Alternative 2, incidental take of polar bears that results from activities that occur outside of the current range of the species would not be subject to the prohibitions found at 50 CFR 17.31. In contrast, paragraph (4) of Alternative 3 refers to the State of Alaska.
Under paragraph (4) of Alternative 2, any incidental take that results from activities within the current range of the polar bear would be subject to the prohibitions found at 50 CFR 17.31, although, as explained in the previous section, any such incidental take that has already been authorized under the MMPA would not require additional ESA authorization.
Prohibiting incidental take of polar bears from activities that occur within the current range of the species, under 50 CFR 17.31, would contribute to conservation of the polar bear. The areas within the current range of the polar bear include land or water that is subject to the jurisdiction or sovereign rights of the United States (including portions of lands and inland waters of the United States, the territorial waters of the United States, and the United States' Exclusive Economic Zone or the limits of the continental shelf) and the high seas. Thus, Alternative 2 more adequately provides for the protection and conservation of the polar bear than does Alternative 3, because it more clearly includes all areas within the range of the polar bear that should be subject to the ESA, rather than just the “State of Alaska,” which is more limited geographically and is not biologically based.
Any incidental take of a polar bear caused by an activity that occurs outside of the geographic range specified in paragraph (4) of Alternative 2 would not be a prohibited act under the ESA. However, nothing in paragraph (4) modifies the prohibitions against taking, including incidental taking, under the MMPA, which continue to apply regardless of where the activity occurs.
Any incidental take caused by an activity outside the geographic range specified in paragraph (4) of Alternative 2, and covered by the MMPA would be a violation of that law and subject to the full array of the statute's civil and criminal penalties unless it was authorized. Any person, which includes businesses, States, and Federal agencies, as well as individuals, who violates the MMPA's takings prohibition or any regulation may be assessed a civil penalty of up to $10,000 for each violation. A person or entity that knowingly violates the MMPA's takings prohibition or any regulation will, upon conviction, be fined for each violation, imprisoned for up to 1 year, or both.
Any individual, business, State government, or Federal entity subject to the jurisdiction of the United States that is likely to cause the incidental taking of a polar bear under the MMPA, regardless of the location of their activity, must therefore seek incidental take authorization under the MMPA or risk such civil or criminal penalties. As explained earlier, while the Service will work with any person or entity that seeks incidental take authorization, such authorization can only be granted if any take that is likely to occur will have no more than a negligible impact on the species and will not have an unmitigable adverse impact on the availability of the species for subsistence use take. If the negligible impact standard cannot be met, the person or entity will have to modify their activities to meet the standard, modify their activities to avoid the taking altogether, or risk civil or criminal penalties.
In addition, nothing in paragraph (4) of Alternative 2 affects section 7 consultation requirements outside the geographic range specified in the special rule. Any Federal agency that intends to engage in an agency action within the United States, its territorial waters, or on the high seas that “may affect” polar bears, or their habitat, must comply with 50 CFR part 402, regardless of whether the agency action is to take place within the current range of the polar bear. This includes, but is not limited to, intra-Service consultation on any MMPA incidental take authorization proposed for activities located outside the geographic range specified in paragraph (4) of this proposed special rule. Paragraph (4) would not affect in any way the standards for issuing a biological opinion at the end of that consultation or the contents of the biological opinion, including an assessment of the amount or extent of take that is likely to occur. An incidental take statement would also be issued under any opinion where the Service finds that the agency action and the incidental taking are not likely to jeopardize the continued existence of the species or result in the destruction or adverse modification of any polar bear critical habitat, provided that the incidental taking has already been authorized under the MMPA, as required under section 7(b)(4) of the ESA. The Service would, however, inform the Federal agency and any applicants in the biological opinion and any incidental take statement that the take identified in the biological opinion and the statement is not a prohibited act under the ESA, although any incidental take that actually occurs and that has not been authorized under the MMPA would remain a violation of the MMPA.
One difference between the MMPA and the ESA is the applicability of the ESA citizen suit provision. Under section 11 of the ESA, any person may commence a civil suit against a person, business entity, State government, or Federal agency that is allegedly in violation of the ESA subject to the 60-day notice requirement. Such lawsuits have been brought by private citizens and citizen groups where it is alleged that a person or entity is taking a listed species in violation of the ESA. The
Operation of the citizen suit provision remains unaffected for any restricted act other than incidental take, such as direct take, import, export, sale, and transport, regardless of whether the activity occurs outside the current range of the polar bear. Further, the ESA's citizen suit provision would be unaffected by Alternative 2, when the activity causing incidental take is anywhere within the geographic range specified in paragraph (4). Any person or entity that is allegedly causing the incidental take of polar bears as a result of activities within the geographic range specified in paragraph (4) of Alternative 2 without appropriate MMPA authorization could be challenged through the citizen suit provision, as that would be a violation of the ESA implementing regulations at 50 CFR 17.31. The ESA citizen suit provision would also remain available for alleged failure to consult under section 7 of the ESA regardless of where the agency action occurs within the United States, its territorial waters, or on the high seas. Further, any incidental taking caused by an activity outside the geographic range specified in paragraph (4) of Alternative 2 that is connected, either directly or in certain instances indirectly, to an action by a Federal agency could be pursued under the Administrative Procedure Act of 1946 (5 U.S.C. Subchapter II), which allows challenges to final agency actions.
When setting restrictions for threatened species, the Service has generally adopted prohibitions on their import; export; take; transport in interstate or foreign commerce in the course of a commercial activity; sale or offer for sale in interstate or foreign commerce; and possession, sale, delivery, carrying, transportation, or shipping of unlawfully taken species, either through a special rule or through the provisions of 50 CFR 17.31. For the polar bear, these same activities are already strictly regulated under the MMPA. Section 101 of the MMPA provides a moratorium on the taking and importation of marine mammals and their products. Section 102 of the MMPA further prohibits activities unless exempted or authorized under subsequent sections.
Prohibitions in section 102(a) include take of any marine mammal on the high seas; take of any marine mammal in waters or on lands under the jurisdiction of the United States; use of any port, harbor, or other place under the jurisdiction of the United States to take or import a marine mammal; possession of any marine mammal or product taken in violation of the MMPA; and transport, purchase, sale, export, or offer to purchase, sell, or export any marine mammal or product taken in violation of the MMPA or for any purpose other than public display, scientific research, or enhancing the survival of the species or stock. Under sections 102(b) and (c) of the MMPA, it is generally unlawful to import a pregnant or nursing marine mammal; an individual taken from a depleted species or population stock; an individual taken in a manner deemed inhumane; any marine mammal taken in violation of the MMPA or in violation of the law of another country; or any marine mammal product if it was made from any marine mammal taken in violation of the MMPA or in violation of the law of another country, or if it was illegal to sell in the country of origin. As a general matter, unauthorized import of a marine mammal is prohibited subject to penalties under Sections 101(a) and 105(a)(1) of the MMPA.
The MMPA then provides specific exceptions to these prohibitions under which certain acts are allowed only if all statutory requirements are met. Under section 104 of the MMPA, these otherwise prohibited activities may be authorized for purposes of public display (section 104(c)(2)), scientific research (section 104(c)(3)), enhancing the survival or recovery of a species (section 104(c)(4)), or photography (where there is level B harassment only; section 104(c)(6)). In addition, section 104(c)(8) specifically addresses the possession, sale, purchase, transport, export, or offer for sale of the progeny of any marine mammal taken or imported under section 104, and section 104(c)(9) sets strict standards for the export of any marine mammal from the United States. In all of these sections of the MMPA, strict criteria have been established to ensure that the impact of an authorized activity, if a permit were to be issued, would successfully meet Congress's finding in the MMPA that species, “should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part.”
Under the general threatened species regulations at 50 CFR 17.31 and 17.32, authorizations are available for a wider range of activities than under the MMPA, including permits for any special purpose consistent with the ESA. In addition, for those activities that are available under both the MMPA and the general threatened species regulations, the MMPA issuance criteria are often more strict. For example, in order to issue a permit under the general threatened species regulations at 50 CFR 17.32, the Service must consider, among other things:
(1) Whether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit;
(2) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife;
(3) Whether the permit would in any way directly or indirectly conflict with any known program intended to enhance the survival probabilities of the population; and
(4) Whether the activities would be likely to reduce the threat of extinction facing the species of wildlife.
These are all “considerations” during the process of evaluating an application, but none sets a standard that requires denial of the permit under any particular set of facts. However, in order to obtain an enhancement permit under the MMPA, the Service must find that any taking or importation: (1) Is likely to contribute significantly to maintaining or increasing distribution or numbers necessary to ensure the survival or recovery of the species or stock, and (2) is consistent with any conservation plan or ESA recovery plan for the species or stock or, if no conservation or ESA recovery plan is in place, with the Service's evaluation of actions required to enhance the survival or recovery of the species or stock in light of factors that would be addressed
Further, all permits issued under the MMPA must be consistent with the purposes and policies of the Act, which includes maintaining or returning marine mammals to their optimum sustainable population. Also, now that polar bears have depleted status under the MMPA, no MMPA permit may be issued for taking or importation for the purpose of public display, whereas § 17.32 allows issuance of permits for zoological exhibition and educational purposes. As the MMPA does not contain a provision similar to a special rule under section 4(d) of the ESA, the more restrictive requirements of the MMPA apply (16 U.S.C. 1543).
Thus, the existing statutory provisions of the MMPA allow fewer types of activities than does 50 CFR 17.32 for threatened species, and the MMPA's standards are generally stricter for those activities that are allowed than standards for comparable activities under 50 CFR 17.32. Because, for polar bears, an applicant must obtain authorization under the MMPA to engage in an act that would otherwise be prohibited, and because both the allowable types of activities and standards for those activities are generally stricter under the MMPA than the general standards under 50 CFR 17.32, we find that the MMPA provisions are necessary and advisable to provide for the conservation of the species and adopt these provisions as appropriate conservation protections under the ESA. We also prohibit by regulation with respect to polar bears certain acts prohibited in section 9(a)(1) of the ESA. Therefore, under Alternative 2 (this proposed 4(d) special rule), Alternative 3, and Alternative 4, as long as an activity is authorized or exempted under the MMPA, and the appropriate requirements of the MMPA are met, then the activity would not require any additional authorization under the ESA. All authorizations issued under section 104 of the MMPA would continue to be subject to section 7 consultation requirements of the ESA.
In addition to the MMPA restrictions on import and export discussed above, CITES provisions that apply to the polar bear also ensure that import into or export from the United States is carefully regulated. Under CITES and the U.S. regulations that implement CITES at 50 CFR part 23, the United States is required to regulate and monitor the trade in legally possessed CITES specimens over an international border. Thus, for example, CITES would apply to tourists driving from Alaska through Canada with polar bear handicrafts to a destination elsewhere in the United States. As an Appendix II species, the export of any polar bear, either live or dead, and any polar bear parts or products requires an export permit supported by a finding that the specimen was legally acquired under international and domestic laws. Prior to issuance of the permit, the exporting country must also find that export will not be detrimental to the survival of the species. A valid export document issued by the exporting country must be presented to the officials of the importing country before the polar bear specimen will be cleared for importation.
Some limited exceptions to this permit requirement exist. For example, consistent with CITES, the United States provides an exemption from the permitting requirements for personal and household effects made of dead specimens. Personal and household effects must be personally owned for noncommercial purposes, and the quantity must be necessary or appropriate for the nature of the trip or stay or for household use. Not all CITES countries have adopted this exemption, so persons who may cross an international border with a polar bear specimen should check with the Service and the country of transit or destination in advance as to applicable requirements. Because, for polar bears, any person importing or exporting any live or dead animal, part, or product into or from the United States must comply with the strict provisions of CITES as well as the strict import and export provisions under the MMPA, we find that additional authorizations under the ESA to engage in these activities would not be necessary and advisable to provide for the conservation of the species. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in Section 9(a)(1) of the ESA. Thus, under Alternative 2 (this proposed 4(d) special rule, Alternative 3, and Alternative 4), if an import or export activity is authorized or exempted under the MMPA and the appropriate requirements under CITES have been met, no additional authorization under the ESA would be required. All export authorizations issued by the Service under CITES will continue to be subject to the consultation requirements under section 7 of the ESA, regardless of whether a 4(d) special rule is in place for the polar bear.
Both the MMPA and the ESA prohibit take of protected species. However, both statutes provide exceptions when the take is either exempted or can be authorized for self-defense or welfare of the animal.
In the interest of public safety, both the MMPA and the ESA include provisions to allow for take, including lethal take, when this take is necessary for self-defense or to protect another person. Section 101(c) of the MMPA states that it shall not be a violation to take a marine mammal if such taking is imminently necessary for self-defense or to save the life of another person who is in immediate danger. Any such incident must be reported to the Service within 48 hours of occurrence. Section 11(a)(3) of the ESA similarly provides that no civil penalty shall be imposed if it can be shown by a preponderance of the evidence that the defendant committed an otherwise prohibited act based on a good faith belief that he or she was protecting himself or herself, a member of his or her family, or any other individual from bodily harm. Section 11(b)(3) of the ESA provides that it shall be a defense to criminal prosecution if the defendant committed an offense based on a good faith belief that he or she was protecting himself or herself, a member of his or her family, or any other individual from bodily harm. The ESA regulations in 50 CFR 17.21(c)(2), which reiterate that any person may take listed wildlife in defense of life, clarify this exemption. Reporting of the incident is required under 50 CFR 17.21(c)(4). Thus, the self-defense provisions of the ESA and MMPA are comparable. However, under any of the three considered versions of a special rule, where unforeseen
Concerning take for defense of property and for the welfare of the animal, the provisions in the ESA and MMPA are not clearly comparable. The provisions provided under the ESA regulations at 50 CFR 17.21(c)(3) authorize any employee or agent of the Service, any other Federal land management agency, the National Marine Fisheries Service (NMFS), or a State conservation agency, who is designated by the agency for such purposes, to take listed wildlife when acting in the course of official duties if the action is necessary to: (i) Aid a sick, injured, or orphaned specimen; (ii) dispose of a dead specimen; (iii) salvage a dead specimen for scientific study; or (iv) remove a specimen that may constitute a threat to human safety, provided that the taking is humane or, if lethal take or injury is necessary, that there is no other reasonable possibility to eliminate the threat. Further, the ESA regulations at 50 CFR 17.31(b) allow any employee or agent of the Service, of NMFS, or of a State conservation agency which is operating a conservation program under the terms of a cooperative agreement with the Service in accord with section 6 of the ESA, when acting in the course of official duty, to take those species of threatened wildlife which are covered by an approved cooperative agreement to carry out conservation programs.
Provisions for similar activities are found under sections 101(a), 101(d), and 109(h) of the MMPA. Section 101(a)(4)(A) of the MMPA provides that a marine mammal may be deterred from damaging fishing gear or catch (by the owner or an agent or employee of the owner of that gear or catch), other private property (by the owner or an agent or employee of the owner of that property), and, if done by a government employee, public property, so long as the deterrence measures do not result in death or serious injury of the marine mammal. This section also allows for any person to deter a marine mammal from endangering personal safety. Section 101(a)(4)(D) clarifies that this authority to deter marine mammals applies to depleted stocks, which would include the polar bear. Further, the Service incorporated subparagraph 101(a)(4)(B) of this section into its polar bear management when it finalized “deterrence guidelines” on October 6, 2010 (75 FR 61631), effective November 5, 2010. The deterrence guidelines set forth best practices for safely and nonlethally deterring polar bears from damaging private and public property and endangering the public. The nonlethal deterrence of a polar bear from fishing gear or other property is not a provision that is included under the ESA. The Service feels the voluntary deterrence guidelines would not result in injury to a polar bear or removal of the bear from the population and could, instead, prevent serious injury or death to the bear by preventing escalation of an incident to the point where the bear is killed in self-defense. Thus, we find it necessary and advisable to continue to manage polar bears under this provision of the MMPA and, as such, an activity conducted pursuant to this provision under the MMPA would not require additional authorization under the ESA under Alternative 2 (this proposed 4(d) special rule), Alternative 3, and Alternative 4. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.
Section 101(d) of the MMPA provides that it is not a violation of the MMPA for any person to take a marine mammal if the taking is necessary to avoid serious injury, additional injury, or death to a marine mammal entangled in fishing gear or debris, and care is taken to prevent further injury and ensure safe release. The incident must be reported to the Service within 48 hours of occurrence. If entangled, the safe release of a polar bear from fishing gear or other debris could prevent further injury or death of the animal. Therefore, by adopting this provision of the MMPA, Alternatives 2, 3, and 4 would provide for the conservation of polar bears in the event of entanglement with fishing gear or other debris and could prevent further injury or death of the bear. The provisions under the ESA at 50 CFR 17.31 provide for similar activities; however, the ESA provision only applies to an employee or agent of the Service, any other Federal land management agency, NMFS, or a State conservation agency, who is designated by the agency for such purposes. The provisions under section 101(d) apply to any individual, including private individuals. While we do not believe private citizens should attempt to free a large polar bear from entanglement for obvious safety reasons, there may be certain rare instances when an abandoned young cub may need aid. Although the provisions under the MMPA are broader in this case, we find them necessary and advisable to provide for the conservation of the polar bear; therefore, an activity conducted pursuant to this provision of the MMPA would not require additional authorization under the ESA under Alternatives 2, 3, and 4. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.
Further, section 109(h) of the MMPA allows the humane taking of a marine mammal by specific categories of people (i.e., Federal, State, or local government officials or employees or a person designated under section 112(c) of the MMPA) in the course of their official duties provided that one of three criteria is met—the taking is for: (1) The protection or welfare of the mammal; (2) the protection of the public health and welfare; or (3) the nonlethal removal of nuisance animals. The MMPA regulations at 50 CFR 18.22 provide the specific requirements of the exception. Section 112(c) of the MMPA allows the Service to enter into cooperative agreements with other Federal or State agencies and public or private institutions or other persons to carry out the purposes of section 109(h) of the MMPA. The ability to designate non-Federal, non-State “cooperators,” as allowed under sections 112(c) and 109(h) of the MMPA but not provided for under the ESA, has allowed the Service to work with private groups to retrieve carcasses, respond to injured animals, and provide care and maintenance for stranded or orphaned animals. This has provided benefits by drawing on the expertise of, and allowing the use of facilities of, non-Federal and non-State scientists, aquaria, veterinarians, and other private entities. Additionally, the Service has provided authorization under section 101(a)(5)(A) of the MMPA to certain trained non-Federal, non-State cooperators to nonlethally take polar bears through harassment/hazing of individual animals. These incidental take authorizations have been a crucial component of reducing bear-human confrontations in both Alaska Native villages and the oil and gas development areas on the North Slope of Alaska. This provision has provided for the conservation of the polar bear by allowing nonlethal techniques to deter polar bears from property and away from people before situations escalate, thereby preventing unnecessary injury or death of a polar bear. Therefore, the adoption of these MMPA provisions is necessary and advisable to provide for the conservation of the polar bear. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.
The ESA, MMPA, and CITES all have provisions for the regulation of specimens, both live and dead, that were acquired or removed from the wild prior to application of the law or the listing of the species, but the laws treat these specimens somewhat differently. Section 9(b)(1) of the ESA states that the prohibitions on import and export do not apply to any fish or wildlife which were held in captivity prior to the enactment of the ESA or to the date of publication of listing as long as the holding of such specimens and their subsequent import and export is non-commercial. Section 9(b)(1) also states that fish and wildlife which were held in captivity for non-commercial purposes prior to enactment of the ESA or to the date of publication of listing are also exempt from regulations the Secretary may issue to conserve those species under the authority of the ESA. Additionally, section 10(h) of the ESA provides an exemption for certain antique articles. Polar bears held in captivity prior to the listing of the polar bear as a threatened species under the ESA and not used or subsequently held or used in the course of a commercial activity, and all items containing polar bear parts that qualify as antiques under the ESA, would qualify for these exemptions.
Section 102(e) of the MMPA contains a pre-MMPA exemption that provides that none of the restrictions shall apply to any marine mammal or marine mammal product composed from an animal taken prior to December 21, 1972. In addition, Article VII(2) of CITES provides a pre-Convention exception that exempts a pre-Convention specimen from standard permitting requirements in Articles III, IV, and V of CITES when the exporting or re-exporting country is satisfied that the specimen was acquired before the provisions of CITES applied to it and issues a CITES document to that effect (see 50 CFR 23.45). Alternative 2 (this proposed 4(d) special rule) would not affect requirements under CITES; therefore, these specimens continue to require this pre-Convention certificate for any international trade. Pre-Convention certificates required by CITES and pre-MMPA affidavits and supporting documentation required under the Service's regulations at 50 CFR 18.14 ensure that trade in pre-MMPA and pre-Convention specimens meet the requirements of the exemptions.
Alternatives 2, 3, and 4 would adopt the pre-Act provisions of the MMPA and CITES. The MMPA has been in force since 1972 and CITES since 1975. In that time, there has never been a conservation problem identified regarding pre-Act polar bear specimens. While, under a special rule, polar bear specimens that were obtained prior to the date that the MMPA went into effect (December 21, 1972) would not be subject to the same restrictions as other threatened species under the general regulations at §§ 17.31 and 17.32, the number of specimens and the nature of the activities to which these restrictions would apply is limited. There are very few live polar bears, either in a controlled environment within the United States or elsewhere, that would qualify as “pre-Act” under the MMPA. Therefore, the standard MMPA restrictions apply to virtually all live polar bears. Of the dead specimens that would qualify as “pre-Act” under the MMPA, very few of these specimens would likely be subject to activities due to the age and probable poor physical quality of these specimens. Furthermore, under CITES, these specimens would continue to require documentation for any international trade, which would verify that the specimen was acquired before CITES went into effect in 1975 for polar bears. While the general ESA regulations would provide some additional restrictions, such activities have not been identified as a threat in any way to the polar bear. Thus, CITES and the MMPA provide appropriate protections that are necessary and advisable to provide for the conservation of the polar bear in this regard, and additional restrictions under the ESA are not necessary under Alternatives 2, 3, and 4. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.
Section 10(e) of the ESA provides an exemption for Alaska Natives for the taking and importation of listed species if such taking is primarily for subsistence purposes. Nonedible by-products of species taken in accordance with the exemption, when made into authentic native articles of handicraft and clothing, may be transported, exchanged, or sold in interstate commerce. The ESA defines authentic native articles of handicraft and clothing as items composed wholly or in some significant respect of natural materials, and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or other mass copying devices (section 10(e)(3)(ii)). That definition also provides that traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. Further details on what qualifies as authentic native articles of handicrafts and clothing are provided at 50 CFR 17.3. This exemption is similar to one in section 101(b) of the MMPA, which provides an exemption from the moratorium on take for subsistence harvest and the creation and sale of authentic native articles of handicrafts or clothing by Alaska Natives. The definition of authentic native articles of handicrafts and clothing in the MMPA is identical to the ESA definition, and our MMPA definition in our regulations at 50 CFR 18.3 is identical to the ESA definition at 50 CFR 17.3. Both statutes require that the taking may not be accomplished in a wasteful manner.
Under Alternative 2 (this proposed 4(d) special rule), Alternative 3, and Alternative 4, any exempt activities under the MMPA associated with handicrafts or clothing or cultural exchange using subsistence-taken polar bears would not require additional authorization under the ESA, including the limited, noncommercial import and export of authentic native articles of handicrafts and clothing that are created from polar bears taken by Alaska Natives. Under Alternatives 2, 3, and 4, all such imports and exports involving polar bear parts and products would need to conform to what is currently allowed under the MMPA, comply with our import and export regulations found at 50 CFR parts 14 and 23, and be noncommercial in nature. The ESA regulations at 50 CFR 14.4 define commercial as related to the offering for sale or resale, purchase, trade, barter, or the actual or intended transfer in the pursuit of gain or profit, of any item of wildlife and includes the use of any wildlife article as an exhibit for the purpose of soliciting sales, without regard to the quantity or weight.
Another activity covered by Alternatives 2, 3, and 4 is cultural exchange between Alaska Natives and Native inhabitants of Russia, Canada, and Greenland with whom Alaska Natives share a common heritage. The MMPA allows the import and export of marine mammal parts and products that are components of a cultural exchange, which is defined under the MMPA as the sharing or exchange of ideas, information, gifts, clothing, or handicrafts. While the ESA has similar language allowing the import of items, there is no comparable language that would allow Natives to travel to Canada, Russia, or Greenland with cultural
Alternatives 2, 3, and 4 would also adopt the registered agent and tannery process from the current MMPA regulations. In order to assist Alaska Natives in the creation of authentic native articles of handicrafts and clothing, the Service's MMPA implementing regulations at 50 CFR 18.23(b) and (d) allow persons who are not Alaska Natives to register as an agent or tannery. Once registered, agents are authorized to receive or acquire marine mammal parts or products from Alaskan Natives or other registered agents. They are also authorized to transfer (not sell) hides to registered tanners for further processing. A registered tannery may receive untanned hides from Alaska Natives or registered agents for tanning and return. The tanned skins may then be made into authentic articles of clothing or handicrafts. Registered agents and tanneries must maintain strict inventory control and accounting methods for any marine mammal part, including skins; they provide accountings of such activities and inventories to the Service. These restrictions and requirements for agents and tanners allow the Service to monitor the processing of such items while ensuring that Alaska Natives can exercise their rights under the exemption. Adopting the registered agent and tannery process would align ESA provisions relating to the creation of handicrafts and clothing by Alaska Natives with the current process under the MMPA, and allows Alaska Natives to engage in the subsistence practices provided under the ESA's section 10(e) exemptions.
Nonetheless, the provisions in Alternatives 2, 3, and 4 regarding creation, shipment, and sale of authentic native articles of handicrafts and clothing would apply only to items to which the subsistence harvest exemption applies under the MMPA. The exemption in section 10(e)(1) of the ESA applies to “any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska” but also applies to “any non-native permanent resident of an Alaskan native village.” However, the exemption under section 101 of the MMPA is limited to only an “Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean.” Because the MMPA is more restrictive, only a person who qualifies under the MMPA Alaska Native exemption may legally take polar bears for subsistence purposes, as a take by nonnative permanent residents of Alaska native villages under the broader ESA exemption is not allowed under the MMPA. Therefore, all persons, including those who qualify under the Alaska Native exemption of the ESA, should consult the MMPA and our regulations at 50 CFR part 18 before engaging in any activity that may result in a prohibited act to ensure that their activities will be consistent with both laws.
Although a few of these provisions of the MMPA may be less strict than the ESA provisions, we have determined that these provisions would be the appropriate regulatory mechanisms for the conservation of the polar bear. Both the ESA and the MMPA recognize the intrinsic role that marine mammals have played and continue to play in the subsistence, cultural, and economic lives of Alaska Natives. The Service, in turn, recognizes the important role that Alaska Natives play in the conservation of marine mammals. Amendments to the MMPA in 1994 acknowledged this role by authorizing the Service to enter into cooperative agreements with Alaska Natives for the conservation and co-management of subsistence use of marine mammals (section 119 of the MMPA). Through these cooperative agreements, the Service has worked with Alaska Native organizations to better understand the status and trends of polar bears throughout Alaska. For example, Alaska Natives collect and contribute biological specimens from subsistence-harvested animals for biological analysis. Analysis of these samples allows the Service to monitor the health and status of polar bear stocks.
Further, as discussed in our proposed and final rules to list the polar bear as a threatened species (72 FR 1064; January 9, 2007, and 73 FR 28212; May 15, 2008), the Service cooperates with the Alaska Nanuuq Commission, an Alaska Native organization that represents interests of Alaska Native villages whose members engage in the subsistence hunting of polar bears, to address polar bear subsistence harvest issues. In addition, for the Southern Beaufort Sea population, hunting is regulated voluntarily and effectively through an agreement between the Inuvialuit of Canada and the Inupiat of Alaska (implemented by the North Slope Borough) as well as being monitored by the Service's marking, tagging, and reporting program. In the Chukchi Sea, the Service is working with Alaska Natives through the recently implemented Agreement between the United States of America and the Russian Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear Population (Bilateral Agreement), under which one of two commissioners representing the United States represents the Native people of Alaska and, in particular, the Native people for whom polar bears are an integral part of their culture. The Bilateral Agreement allows for unified, on-the-ground conservation programs for the shared population of polar bears, including binding sustainable harvest limits. The Bilateral Agreement establishes theU.S.-Russia Polar Bear Commission (Commission), which functions as the bilateral managing authority to make scientific determinations, establish take limits, and carry out other responsibilities important to the conservation and management of the polar bear. At a meeting of the Commission on June 7-10, 2010, in Anchorage, Alaska, the Commission determined that no more than 58 polar bears per year may be taken from the Alaska-Chukotka polar bear population, of which no more than 19 animals may be females. Further, the Commission determined that the two countries will work together to identify legal requirements and documents needed to implement the determined subsistence harvest limit, and that further discussion regarding implementation of harvest management plans would take place at the next Commission meeting in 2011. At the Commission meeting in July 2011, the Commission, based on recommendations from its Scientific Working Group, reaffirmed the total allowable harvest of 58 polar bears from the Alaska-Chukotka population and approved a recommendation that a multi-year quota system be introduced for an initial period of 5 years, consistent with the terms of the Bilateral Agreement. The next Commission meeting in June 2012 will include discussion of the seasonal aspects of annual take limits. This cooperative management regime for the subsistence harvest of polar bears is key to both providing for the long-term viability of the population as well as addressing the social, cultural, and subsistence interests of Alaska Natives and the native people of Chukotka. Thus, we recognize the unique contributions Alaska Natives provide to the Service's understanding of polar bears, and their interest in ensuring that polar bear stocks are conserved and managed to achieve and maintain healthy populations.
The Service recognizes the significant conservation benefits that Alaska
This aspect of a 4(d) special rule is limited to activities that are not already exempted under the ESA. The ESA itself provides a statutory exemption to Alaska Natives under section 10(e) of the ESA for the harvesting of polar bears from the wild as long as the taking is for primarily subsistence purposes. The ESA then specifies that polar bears taken under this provision can be used to create handicrafts and clothing and that these items can be sold in interstate commerce. Thus, any of the three considered alternatives of a proposed special rule would not regulate the taking or importation of polar bears or the sale in interstate commerce of authentic native articles of handicrafts and clothing by qualifying Alaska Natives; these have already been exempted by statute. A special rule would address only activities relating to cultural exchange and limited types of travel, and to the creation and shipment of authentic native handicrafts and clothing that are currently allowed under section 101 of the MMPA that are not already clearly exempted under section 10(e) of the ESA.
In addition, in our final rule to list the polar bear as threatened (73 FR 28212; May 15, 2008), while we found that polar bear mortality from harvest and negative bear-human interactions may be approaching unsustainable levels for some populations, especially those experiencing nutritional stress or declining population numbers as a consequence of habitat change, subsistence take by Alaska Natives does not currently threaten the polar bear throughout all or any significant portion of its range. Rangewide, continued harvest and increased mortality from bear-human encounters or other reasons are likely to become more significant threats in the future. The Polar Bear Specialist Group (Aars et al. 2006, p. 57), through resolution, urged that a precautionary approach be instituted when setting harvest limits in a warming Arctic environment, and that continued efforts are necessary to ensure that harvest or other forms of removal do not exceed sustainable levels. However, the Service has found that standards for subsistence harvest in the United States under the MMPA and the voluntary measures taken by Alaska Natives to manage subsistence harvest in the United States have been effective, and that, rangewide, the lawful subsistence harvest of polar bears and the associated creation, sale, and shipment of authentic handicrafts and clothing currently do not threaten the polar bear throughout all or a significant portion of its range, and are not affected by the provisions of Alternatives 2, 3, and 4.
Section 319 of the National Defense Appropriations Act of 2004 (Pub. L. 108-136 November 24, 2003) amended section 101 of the MMPA to provide a mechanism for the Department of Defense (DOD) to exempt actions or a category of actions necessary for national defense from requirements of the MMPA provided that DOD has conferred, for polar bears, with the Service. Such an exemption may be issued for no more than 2 years. Alternative 2 (this proposed 4(d) special rule) would provide that an exemption invoked as necessary for national defense under the MMPA would require no separate authorization under the ESA. The MMPA exemption requires DOD to confer with the Service, the exemptions are of limited duration and scope (only those actions “necessary for national defense”), and no actions by the DOD have been identified as a threat to the polar bear throughout all or any significant portion of its range.
As discussed earlier, the MMPA provides substantial civil and criminal penalties for violations of the law. These penalties remain in place and would not be affected by Alternative 2 (this proposed 4(d) special rule), Alternative 3, and Alternative 4. Under Alternative 2, these penalties are not affected by whether a violation occurs inside or outside the geographic range specified in paragraph (4). Because CITES is implemented through the ESA, any trade of polar bears or polar bear parts or products contrary to CITES and possession of any polar bear specimen that was traded contrary to the requirements of CITES is a violation of the ESA and remains subject to its penalties.
Under Alternatives 2, 3, and 4, certain acts not related to CITES violations also remain subject to the penalties of the ESA. Under paragraph (2) of Alternatives 2, 3, and 4, any act prohibited under the MMPA that would also be prohibited under the ESA regulations at 50 CFR 17.31 and that has not been authorized or exempted under the MMPA would be a violation of the ESA as well as the MMPA. In addition, even if an act is authorized or exempt under the MMPA, failure to comply with all applicable terms and conditions of the statute, the MMPA implementing regulations, or an MMPA permit or authorization issued by the Service would likewise constitute a violation of the ESA. Under Alternative 2, the ESA penalties would also remain applicable to any incidental take of polar bears that is caused by activities within the geographic area specified in paragraph (4), if that incidental take has not been authorized under the MMPA consistent with paragraph (2). Under Alternative 2, while ESA penalties would not apply to any incidental take caused by activities outside the geographic area specified in paragraph (4), as explained above, all MMPA penalties remain in place in these areas. A civil penalty of $12,000 to $25,000 is available for a knowing violation (or any violation by a person engaged in business as an importer or exporter) of certain provisions of the ESA, the regulations, or permits, while civil penalties of up to $500 are available for any other violation. Criminal penalties and imprisonment for up to 1 year, or both, are also available for certain violations of the ESA. In addition, all fish and wildlife taken, possessed, sold, purchased, offered for sale or purchase, transported, delivered, received, carried, shipped, exported, or imported contrary to the provisions of the ESA or any ESA regulation or permit or certificate issued under the ESA are subject to forfeiture to the United States. There are also provisions for the forfeiture of vessels, vehicles, and other equipment used in committing unlawful acts under the
As discussed earlier, even where MMPA penalties provide the sole deterrence against unlawful activities under Alternatives 2 and 3, these penalties are substantial. A civil penalty of up to $10,000 for each violation may be assessed against any person, which includes businesses, States, and Federal agencies as well as private individuals, who violates the MMPA or any MMPA permit, authorization, or regulation. Any person or entity that knowingly violates any provision of the statute or any MMPA permit, authorization, or regulation will, upon conviction, be fined for each violation, be imprisoned for up to 1 year, or both. The MMPA also provides for the seizure and forfeiture of the cargo (or monetary value of the cargo) from any vessel that is employed in the unlawful taking of a polar bear, and additional penalties of up to $25,000 can be assessed against a vessel causing the unlawful taking of a polar bear. Finally, any polar bear or polar bear parts and products themselves can be seized and forfeited upon assessment of a civil penalty or a criminal conviction.
While there are differences between the penalty amounts in the ESA and the MMPA, the penalty amounts are comparable or stricter under the MMPA. The Alternative Fines Act (18 U.S.C. 3571) has removed the differences between the ESA and the MMPA for criminal penalties. Under this Act, unless a Federal statute has been exempted, any individual found guilty of a Class A misdemeanor may be fined up to $100,000. Any organization found guilty of a Class A misdemeanor may be fined up to $200,000. The criminal provisions of the ESA and the MMPA are both Class A misdemeanors, and neither the ESA nor the MMPA are exempted from the Alternative Fines Act. Therefore, the maximum penalty amounts for a criminal violation under both statutes is the same: $100,000 for an individual and $200,000 for an organization.
While the maximum civil penalty amounts under the ESA are for the most part higher than the maximum civil penalty amounts under the MMPA, other elements in the penalty provisions mean that, on its face, the MMPA provides greater deterrence. Other than for a commercial importer or exporter of wildlife or plants, the highest civil penalty amounts under the ESA require a showing that the person “knowingly” violated the law. The penalty for other than a knowing violation is limited to $500. The MMPA civil penalty provision does not contain this requirement. Under section 105(a) of the MMPA, any person “who violates” any provision of the MMPA or any permit or regulation issued thereunder, with one exception for commercial fisheries, may be assessed a civil penalty of up to $10,000 for each violation.
Section 4(d) of the ESA states that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened. Conservation is defined in the ESA to mean “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.” In
Thus, the regulations promulgated under section 4(d) of the ESA provide the Secretary with a wide latitude of discretion to select appropriate prohibitions and exemptions. In such cases, some of the prohibitions and authorizations of the ESA implementing regulations at 50 CFR 17.31 and 17.32 may be appropriate for the species and incorporated into a special rule, but the special rule may also include provisions tailored to the specific conservation needs of the listed species, which may be more or less restrictive than the general provisions.
The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, the Secretary may find that it is necessary and advisable not to include a taking prohibition, or to include a limited taking prohibition. See
Alternative 2 (this proposed 4(d) special rule) provides the appropriate prohibitions, and exceptions to those prohibitions, to provide for the conservation of the species. Many provisions provided under the MMPA and CITES are comparable to or stricter than similar provisions under the ESA, including the definitions of take, penalties for violations, and use of marine mammals. As an example, concerning the definitions of harm under the ESA and harassment under the MMPA, while the terminology of the definitions is not identical, we cannot foresee circumstances under which the management for polar bears under the two definitions would differ. In addition, the existing statutory exceptions that allow use of marine mammals under the MMPA (e.g., research, public display) allow fewer types of activities than does the ESA regulation at 50 CFR 17.32 for threatened species, and the MMPA's standards are generally stricter for those activities that are allowed than those standards for comparable activities under the ESA regulations at 50 CFR 17.32. Additionally, the process for authorization of incidental take under the MMPA via a finding of “negligible impact” is more restrictive than the process under the ESA.
Where the provisions of the MMPA and CITES are comparable to, or even more strict than, the provisions under the ESA, we find that it provides for the conservation of the polar bear to continue to manage the species under the provisions of the MMPA and CITES. As such, these mechanisms have a demonstrated record as being appropriate management provisions. Further, it would not contribute to the conservation of the polar bear and would be inappropriate for the Service to require people to obtain an ESA authorization (including paying application fees) for activities authorized under the MMPA or CITES, where protective measures for polar bears under the ESA authorization would be equivalent or less restrictive than the MMPA or CITES requirements.
There are a few activities for which the prohibitions under the MMPA are less restrictive than the prohibitions for the same activities under the ESA, including use of pre-Act specimens, subsistence use, military readiness activities, and take for defense of property and welfare of the animal. Concerning use of pre-Act specimens and military readiness activities, the general ESA regulations would provide some additional restrictions beyond those provided by the MMPA; however, such activities have not been identified as a threat in any way to the polar bear or its conservation. Therefore, the additional restrictions under the ESA would not contribute to the conservation of the species. Concerning subsistence use and take for defense of property and welfare of the animal, the MMPA allows a greater breadth of activities than would be allowed under the general ESA regulations; however, these additional activities clearly provide for the conservation of the polar bear by fostering cooperative relationships with Alaska Natives who participate with us in conservation programs for the benefit of the species, limiting lethal bear-human interactions, and providing immediate benefits for the welfare of individual animals.
Our 39-year history of implementation of the MMPA, 36-year history of implementation of CITES, and our analysis in the ESA final listing rule for the species, demonstrate that these laws provide appropriate regulatory protection to polar bears for activities that are regulated under these laws. In addition, the threat that has been identified in the final ESA listing rule—loss of habitat and relatedeffects—would not be alleviated by the additional overlay of provisions in the general threatened species regulations at 50 CFR 17.31 and 17.32, or even the full application of the provisions in sections 9 and 10 of the ESA. Based on the current state of the science, nothing within our authority under the ESA, above and beyond what we would require under Alternative 2, would provide the means to resolve this threat.
Paragraphs 1 through 3 of Alternatives 2, 3, and 4 would adopt existing conservation regulatory requirements under the MMPA and CITES as the appropriate regulatory provisions for this threatened species. Because of these provisions, under any of the three considered alternatives of the proposed special rule, if an activity is authorized or exempted under the MMPA or CITES, no additional authorization would be required. But if an activity is not authorized or exempted under the MMPA or CITES and the activity would result in an act that would be otherwise prohibited under 50 CFR 17.31, the protections provided by the general threatened species regulations would apply. In such circumstances, the prohibitions of 50 CFR 17.31 would be in effect, and authorization under 50 CFR 17.32 would be required. In addition, any action authorized, funded, or carried out by the Service that may affect polar bears, including the Service's issuance of any permit or authorization described above, and would require consultation under section 7 of the ESA to ensure that the action is not likely to jeopardize the continued existence of the species.
We find that a 4(d) special rule containing paragraphs 1 through 3, which are identical in Alternatives 2, 3, and 4, is necessary and advisable to provide for the conservation of the polar bear because the MMPA and CITES have proven effective in managing polar bears for more than 30 years. The comparable or stricter provisions of the MMPA and CITES, along with the application of the ESA regulations at 50 CFR 17.31 and 17.32 for any activity that has not been authorized or exempted under the MMPA and CITES or for which a person or entity is not in compliance with the terms and conditions of any MMPA or CITES authorization or exemption, address those negative effects on polar bears that can foreseeably be addressed under sections 9 and 10 of the ESA. It would not contribute to the conservation of the polar bear to require an unnecessary overlay of redundant authorization processes that would otherwise be required under the general ESA threatened species regulations at 50 CFR 17.31 and 17.32. In any case, the Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.
With regard to paragraph 4 of Alternatives 2, 3, and 4, we find that for activities within the current range of the polar bear, overlay of the incidental take prohibitions under 50 CFR 17.31 is a valuable component of polar bear management because of the timing and proximity of potential take of polar bears. Within the range of the polar bear, there are currently ongoing, lawful activities that result in the incidental take of the species, such as those associated with oil and gas exploration and development. Any incidental take from these activities is currently authorized under the MMPA. However, we recognize that there may be future development or activities that may cause incidental take of the species. Because of this, we find that it is valuable to have the overlay of ESA incidental take prohibitions in place for several reasons. In the event that a person or entity causing the incidental take of polar bears has not been authorized under the MMPA, or is out of compliance with the terms and conditions of their MMPA incidental take authorization, the overlay would provide that the person or entity is in violation of the ESA as well as the MMPA. In such circumstances, the person can alter his or her activities to eliminate the possibility of incidental take, seek or come into compliance with their MMPA authorization, or be subject to the penalties of the ESA as well as the MMPA. In this situation, the citizen suit provision of section 11 of the ESA would allow any citizen or citizen group to pursue legal action based on incidental take that has not been authorized under the MMPA. As such, we have determined that the overlay of the ESA incidental take prohibitions at 50 CFR 17.31 in the current range of the polar bear is valuable for the conservation of the species. Again, the Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.
However, we find that for activities outside the current range of the polar bear (including vast areas within the State of Alaska that do not coincide with the polar bear's range), overlay of the incidental take prohibitions under 50 CFR 17.31 is not necessary and advisable for polar bear management and conservation. The Service finds the provisions of paragraph (4) to be consistent with the conservation of the polar bear because: (1) The potential for citizen suits alleging take resulting from activities outside of the range of the polar bear is significant; (2) the likelihood of such suits prevailing in establishing take of polar bears is remote, and (3) defending against such suits will divert available staff and funding away from productive polar bear conservation efforts. Even though incidental take of polar bears from activities outside the current range of the species would not be prohibited under this proposed special rule, the consultation requirements under section 7 of the ESA would remain fully in effect. Any biological opinion associated with a consultation will identify any incidental take that is reasonably certain to occur. Any incidental take, identified through a biological opinion or otherwise, remains a violation of the MMPA unless appropriately authorized. In addition, the citizen suit provision under section 11 of the ESA would be
Nothing in Alternatives 2, 3, and 4 changes in any way the recovery planning provisions of section 4(f) and consultation requirements under section 7 of the ESA, including consideration of adverse modification to any critical habitat, or the ability of the Service to enter into domestic and international partnerships for the management and protection of the polar bear.
Executive Order 12866 requires Federal agencies to submit proposed and final significant rules to the Office of Management and Budget (OMB) prior to publication in the
(a) The rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government;
(b) The rule will create inconsistencies with other Federal agencies' actions;
(c) The rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients; or
(d) The rule raises novel legal or policy issues.
If the rule meets criteria (a) above it is called an “economically significant” rule and additional requirements apply.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
Based on the information that is available to us at this time, we are certifying that this proposed special rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.
According to the Small Business Administration (SBA), small entities include small organizations, including any independent nonprofit organization that is not dominant in its field, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. The SBA defines small businesses categorically and has provided standards for determining what constitutes a small business at 13 CFR 121.201 (also found at
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or [T]ribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and [T]ribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
(b) Because this proposed special rule for the polar bear would allow, with limited exceptions, for the maintenance of the status quo regarding activities that had previously been authorized or exempted under the MMPA, we do not believe that this rule would significantly or uniquely affect small governments. Therefore, a Small Government Agency Plan is not required.
In accordance with Executive Order 12630, this proposed rule would not have significant takings implications. We have determined that the rule has no potential takings of private property implications as defined by this Executive Order because this proposed special rule would, with limited exceptions, maintain the status quo regarding activities currently allowed under the MMPA. A takings implication assessment is not required.
In accordance with Executive Order 13132, this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. This proposed rule would not have substantial direct effects on the State, on the relationship between the
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
This proposed special rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under 44 U.S.C. 3501
We have prepared a draft environmental assessment in conjunction with this proposed 4(d) special rule. Subsequent to closure of the comment period, we will decide whether this proposed rule constitutes a major Federal action significantly affecting the quality of the human environment within the meaning of section 102(2)(C) of the NEPA of 1969. For a copy of the draft environmental assessment, go to
In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3225 of January 19, 2001 [Endangered Species Act and Subsistence Uses in Alaska (Supplement to Secretarial Order 3206)], Department of the Interior Memorandum of January 18, 2001 (Alaska Government-to-Government Policy), Department of the Interior Secretarial Order 3317 of December 1, 2011 (Tribal Consultation and Policy), and the Native American Policy of the U.S. Fish and Wildlife Service, June 28, 1994, we acknowledge our responsibilities to work directly with Alaska Natives in developing programs for healthy ecosystems, to seek their full and meaningful participation in evaluating and addressing conservation concerns for listed species, to remain sensitive to Alaska native culture, and to make information available to Tribes.
For this proposed rule, on January 18, 2012, we contacted the 52 Alaska Native Tribes (ANTs) and Alaska Native Corporations (ANCs) which are, or may be, affected by the listing of the polar bear as well as the development of any special rule under section 4(d) of the ESA. Our January 18, 2012, correspondence explained the nature of the Federal Court's remand and the Service's intent to consult with affected ANTs and ANCs. Our correspondence further informed the ANTs and ANCs that we intended to hold two initial consultation opportunities: One on January 30, 2012, and one on February 6, 2012, during which we would answer any questions about our intention to propose a special rule for the polar bear, as well as take any comments, suggestions, or recommendations participants may wish to offer. Subsequently, during the week of January 23, 2012, we contacted ANTs and ANCs by telephone to further inform them of the upcoming opportunities for consultation.
During the consultation opportunities held on January 30, 2012, and February 6, 2012, the Service received one recommendation from ANTs and ANCs regarding the development of a proposed 4(d) special rule for the polar bear; that recommendation urged the Service to continue to provide information on the development of any proposed rule to the affected public. The Service intends to meet this recommendation throughout the process of finalizing this proposed rule for the polar bear, and will continue to seek input from ANTs and ANCs. Any comments, recommendations, or suggestions received from ANTs and ANCs will be considered.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. For reasons discussed within this proposed rule, we believe that the rule would not have any effect on energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read 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.
2. Amend § 17.40 by revising paragraph (q) to read as follows:
(q) Polar bear (
(1) Except as noted in paragraphs (q)(2) and (q)(4) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to the polar bear.
(2) None of the prohibitions in § 17.31 of this part apply to any activity that is authorized or exempted under the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361
(3) All applicable provisions of 50 CFR parts 14, 18, and 23 must be met.
(4) None of the prohibitions in § 17.31 of this part apply to any taking of polar bears that is incidental to, but not the purpose of, carrying out an otherwise lawful activity within the United States, except for any incidental taking caused by activities in areas subject to the jurisdiction or sovereign rights of the United States within the current range of the polar bear.
Office of the Secretary, USDA.
Notice.
The U.S. Department of Agriculture (USDA) today announced a 51,000 short tons raw value (STRV) increase in the fiscal year (FY) 2012 Overall Allotment Quantity (OAQ), a reassignment of projected surplus beet sugar marketing allocations between beet processors, and a reassignment of surplus cane sugar marketing allotment from domestic sugarcane processors to a 420,000 STRV increase in the FY 2012 raw sugar tariff-rate quota (TRQ).
Angel F. Gonzalez, Import Policies and Export Reporting Division, Foreign Agricultural Service, AgStop 1021, U.S. Department of Agriculture, Washington, DC 20250-1021; or by telephone (202) 720-2916; or by fax to (202) 720-0876; or by email to
USDA today announced an increase in the FY 2012 OAQ to 9,507,250 STRV, which represents 85 percent of the demand estimate published in the April 2012 World Agricultural Supply and Demand Estimates (WASDE) report. The increase is split in accordance with the Sugar Marketing Allotment program, 54.35/45.65 percent between the beet and cane sectors, or 27,719 and 23,281 STRV, respectively. USDA evaluated each sugar beet processor's ability to market its full allocation, and decided not to reassign beet sugar allotment to imports at this time due to uncertainties that still exist in forecasting FY 2012 sugar production. However, beet sugar marketing allocations are transferred from beet sugar processors with surplus allocation to those with deficit allocation (see Table).
In addition, USDA determined that all sugarcane processors have surplus allocations of the FY 2012 cane sugar marketing allotment. Therefore, the 420,000 STRV reassignment to the raw sugar TRQ increase reduced all sugarcane states' sugar marketing allotments. The total cane sector allotment decreased in net from 4,316,778 to 3,920,060 STRV. The new cane state allotments are Florida, 1,926,658 STRV; Louisiana, 1,554,521 STRV; Texas, 170,745 STRV; and Hawaii, 268,135 STRV. The FY 2012 sugar marketing allotment program will not prevent any domestic sugarcane processors from marketing all of their FY 2012 sugar supply. Due to uncertainties that still exist in forecasting each company's and sector's FY 2012 sugar production, further reassignments are likely.
On July 30, 2011, USDA established the FY 2012 TRQ for raw cane sugar at 1,231,497 STRV (1,117,195 metric tons raw value, MTRV
The 420,000 STRV raw sugar TRQ increase, when combined with an estimated reallocation of 70,000 STRV, is expected to yield a net increase in raw sugar imports of 450,000 STRV, after normal TRQ slippage because not all supplying countries will fill their import quota allocations. This TRQ increase is not currently expected to increase FY 2012 domestic sugar supplies sufficiently to attain a level USDA considers adequate. USDA used an ending stocks-to-use level of 14.5 percent in estimating the “reasonable ending stocks” parameter for the most recent FY 2012 sugar market quarterly review mandated by statute. Significant uncertainties about FY 2012 Mexican imports, domestic refined and raw sugar demand, the early sugar beet crop, and other market factors make it prudent for USDA to not increase imported supplies further at this time. USDA will re-evaluate market conditions in June, as required by statute, and increase, as determined appropriate, the TRQ to bring the expected FY 2012 ending-stocks-use to within the traditional range that USDA considers adequate, i.e., 13.5 to 15.5 percent.
The revised FY 2012 cane and beet sugar marketing allotments and processor allocations table is shown below.
Announcement Type: Announcement of Availability of Funds and Request for Application for Competitive Cooperative Partnership Agreements.
All applications, which must be submitted electronically through Grants.gov, must be received by close of business (COB) at 11:59 p.m. EST, on June 4, 2012. Hard copy applications will NOT be accepted.
The following paragraph has been added to the beginning of the Summary portion of
The Risk Management Agency (RMA) is changing the Catalog of Federal Domestic Assistance (CFDA) Number from 10.460 to 10.459. The CFDA number is needed in order to process an application through Grants.gov. The original CFDA number 10.460 published in the
All other portions and sections of the full text Notice remain unchanged.
The Federal Crop Insurance Corporation (FCIC), operating through the Risk Management Agency (RMA), announces its intent to award approximately $3,000,000 (subject to availability of funds) to fund the Risk Management Education and Outreach Partnerships Program.
1. The kinds of risks addressed by existing and emerging risk management tools;
2. The features and appropriate use of existing and emerging risk management tools; and
3. How to make sound risk management decisions.
The minimum award for any cooperative partnership agreement is $20,000. The maximum award for any cooperative partnership agreement is $99,999. The cooperative partnership agreements will be awarded on a competitive basis up to one year from the date of the award. Awardees must demonstrate non-financial benefits from a cooperative partnership agreement and must agree to the substantial involvement of RMA in the project. Funding availability for this program may be announced at approximately the same time as funding availability for similar but separate programs—CFDA No. 10.458 (Crop Insurance Education in Targeted States). Prospective applicants should carefully examine and compare the notices of each announcement.
The collections of information in this Announcement have been approved by OMB under control numbers 0563-0066 and 0563-0067.
The Risk Management Education and Outreach Partnership Program is authorized under section 522(d)(3)(F) of the Federal Crop Insurance Act (Act) (7 U.S.C. 1522(d)(3)(F)).
RMA promotes and regulates sound risk management solutions to improve the economic stability of American agriculture. On behalf of FCIC, RMA does this by offering Federal crop insurance products through a network of private-sector partners, overseeing the creation of new risk management products, seeking enhancements in existing products, ensuring the integrity of crop insurance programs, offering programs aimed at equal access and participation of underserved communities, and providing risk management education and information.
One of RMA's strategic goals is to ensure that its customers are well informed as to the risk management solutions available. This educational goal is supported by section 522(d)(3)(F) of the Federal Crop Insurance Act (FCIA) (7 U.S.C. 1522(d)(3)(F), which authorizes FCIC funding for risk management training and informational efforts for agricultural producers through the formation of partnerships with public and private organizations. With respect to such partnerships, priority is to be given to reaching producers of Priority Commodities, as defined below. A project is considered as giving priority to Priority Commodities if 75 percent of the educational and training activities of the project are directed to producers of any one of the three classes of commodities listed in the definition of Priority Commodities or any combination of the three classes.
For purposes of this program, Priority Commodities are defined as:
1.
2.
3.
The goal of this program is to ensure that “* * * producers will be better able to use financial management, crop insurance, marketing contracts, and other existing and emerging risk management tools.”
For the 2012 fiscal year, the FCIC Board of Directors and the FCIC Manager are seeking projects that address one or more of the Priority
Production: AGR and AGR-Lite; Livestock Gross Margin Dairy; Pasture, Rangeland, Forage Rainfall and/or Vegetative Index; Common Crop Insurance Policy Basic Provisions (“COMBO”); Enterprise Units; Specialty Crops;Prevented Planting; or Other Existing Crop Insurance Programs; Irrigation; Erosion Control Measures; Good Farming Practices; Wildfire Management; Forest Management; and Range Management or other similar topics.
Legal: Legal and Succession Planning or other similar topics;
Marketing: Marketing Strategies; Farm Products Branding; Farmers Markets or other similar topics;
Financial: Financial Tools and Planning; Farm Management Strategies; Farm Financial Benchmarking or other similar topics; or
Human: Farm Labor; Farm Safety; Food Safety, Risk Management Education to Students; or other similar topics.
In addition, the application must clearly demonstrate that the education or training shall be provided to at least one (1) of the Producer Types listed below. Applications that do not include at least one (1) of the Producer Types will not be considered for funding.
Producers and Ranchers;
New and Beginning Farmers;
Women Producers and Ranchers;
Hispanic Producers and Ranchers;
African American Producers and Ranchers;
Native American Producers and Ranchers;
Limited Resource Producers and Ranchers;
Asian American and Pacific Islander Producers and Ranchers;
Transitional Farmers and Ranchers;
Senior Farmers and Ranchers;
Small Acreage Producers;
Specialty Crop Producers; or
Military Veteran Producers and Ranchers.
Only electronic applications will be accepted and they must be submitted through Grants.gov. Hard copy applications will NOT be accepted. Applications submitted to the Risk Management Education and Outreach Partnerships Program are new applications: There are no renewals. All applications will be reviewed competitively using the selection process and evaluation criteria described in Section V—Application Review Process. Each award will be designated as a Cooperative Partnership Agreement, which will require substantial involvement by RMA.
There is no commitment by USDA to fund any particular application. Approximately $3,000,000 is expected to be available in fiscal year 2012 but it is possible that this amount may be reduced or not funded. In the event that all funds available for this program are not obligated after the maximum number of agreements are awarded or if additional funds become available, these funds may, at the discretion of the Manager of FCIC, be used to award additional applications that score highly by the technical review panel or allocated pro-rata to awardees for use in broadening the size or scope of awarded projects, if agreed to by the awardee. In the event that the Manager of FCIC determines that available RMA resources cannot support the administrative and substantial involvement requirements of all agreements recommended for funding, the Manager may elect to fund fewer agreements than the available funding might otherwise allow. All awards will be made and agreements finalized no later than September 30, 2012.
RMA Regional Offices and the States serviced within each RMA Region are listed below. Staff from the respective RMA Regional Offices will provide substantial involvement for projects conducted within the Region.
Billings, Montana Regional Office: (MT, ND, SD, and WY).Davis, California Regional Office: (AZ, CA, HI, NV, and UT).Jackson, Mississippi Regional Office: (AR, KY, LA, MS, and TN).Oklahoma City, Oklahoma Regional Office: (NM, OK, and TX).Raleigh, North Carolina Regional Office: (CT, DE, ME, MD, MA, NH, NJ, NY, NC, PA, RI, VT, VA, and WV).
Spokane, Washington Regional Office: (AK, ID, OR, and WA).Springfield, Illinois Regional Office: (IL, IN, MI, and OH).St. Paul, Minnesota Regional Office: (IA, MN, and WI).Topeka, Kansas Regional Office: (CO, KS, MO, and NE).Valdosta, Georgia Regional Office: (AL, FL, GA, PR, and SC).
Each application must clearly designate the RMA Region where educational activities will be conducted in the application narrative in block 12 of the SF-424 form. Applications without this designation will be rejected. Applications may designate more than one state but cannot designate more than one RMA Region. Applications with proposed activities in more than one state all serviced by the same RMA Region are acceptable. Single applications proposing to conduct educational activities in states served by more than one RMA Region will be rejected. Applications serving Tribal Nations will be accepted and managed from the RMA Regional office serving the designated Tribal Office.
Any application that requests Federal funding of less than $20,000 or more than $99,999 for a project will be rejected. RMA also reserves the right to fund successful applications at an amount less than requested if it is judged that the application can be implemented at a lower funding level.
Projects will be funded for a period of up to one year from the project starting date.
In conducting activities to achieve the purpose and goal of this program in a designated RMA Region, the awardee shall be responsible for performing the following tasks:
1. Develop and conduct a promotional program in English or a non-English language to producers as appropriate to the audience. This program shall include activities using media, newsletters, publications, or other appropriate informational dissemination techniques that are designed to: (a) Raise awareness for crop insurance and risk management; (b) inform producers of the availability of crop insurance and risk management tools; and (c) inform producers and agribusiness leaders in the designated RMA Region of training and informational opportunities.
2. Deliver crop insurance and risk management training in English or non-English language as appropriate to the audience as well as informational opportunities to agricultural producers and agribusiness professionals in the designated RMA Region. This will include organizing and delivering educational activities using the instructional materials assembled by the awardee to meet the local needs of agricultural producers. Activities should be directed primarily to agricultural producers, but may include those
3. Document all educational activities conducted under the cooperative partnership agreement and the results of such activities, including criteria and indicators used to evaluate the success of the program. The awardee shall also be required to provide information to RMA as requested for evaluation purposes.
FCIC, working through RMA, will be substantially involved during the performance of the funded project through RMA's ten (10) Regional Offices. Potential types of substantial involvement may include, but are not limited to, the following activities.
1. Collaborate with the awardee in assembling, reviewing, and approving crop insurance and risk management materials for producers in the designated RMA Region.
2. Collaborate with the awardee in reviewing and approving a promotional program for raising awareness for crop insurance and risk management and for informing producers of training and informational opportunities in the RMA Region.
3. Collaborate with the awardee on the delivery of education to producers and agribusiness leaders in the RMA Region. This will include: (a) Reviewing and approving in advance all producer and agribusiness leader educational activities; (b) advising the project leader on technical issues related to crop insurance education and information; and (c) assisting the project leader in informing crop insurance professionals about educational activity plans and scheduled meetings.
4. Conduct an evaluation of the performance of the awardee in meeting the tasks and subtasks of the project.
Applications that do not address substantial involvement by RMA will be rejected.
In addition to the specific, required tasks listed above, the applicant may propose additional tasks that would contribute directly to the purpose of this program. For any proposed additional task, the applicant must identify the objective of the task, the specific subtasks required to meet the objective, specific time lines for performing the subtasks, and the specific responsibilities of the applicant and any entities working with the applicant in the development or delivery of the project. The applicant must also identify specific ways in which RMA would have substantial involvement in the proposed project task.
Eligible applicants include: State Departments of Agriculture, State Cooperative Extension Services; Federal, State, or tribal agencies; groups representing producers, community based organizations or a coalition of community-based organization that has demonstrated experience in providing agricultural or other agricultural-related services to producers; nongovernmental organizations; junior and four-year colleges or universities or foundations maintained by a college or university; private for-profit organizations; faith-based organizations and other appropriate partners with the capacity to lead a local program of crop insurance and risk management education for producers in an RMA Region.
1. Individuals are not eligible applicants.
2. Although an applicant may be eligible to compete for an award based on its status as an eligible entity, other factors may exclude an applicant from receiving Federal assistance under this program governed by Federal law and regulations (e.g. debarment and suspension; a determination of non-performance on a prior contract, cooperative partnership agreement, or grant; or a determination of a violation of applicable ethical standards.) Applications in which the applicant or any of the partners are ineligible or excluded persons will be rejected in their entirety.
3. Private organizations that are involved in the sale of Federal crop insurance, or that have financial ties to such organizations, are eligible to apply for funding under this Announcement. However, such entities and their partners, affiliates, and collaborators for this Announcement will not receive funding to conduct activities that are already required under a Standard Reinsurance Agreement or any other agreement in effect between FCIC/RMA and the entity, or between FCIC/RMA and any of the partners, affiliates, or collaborators for awards under this Announcement. In addition, such entities and their partners, affiliates, and collaborators for this Announcement will not be allowed to receive funding to conduct activities that could be perceived by producers as promoting the services or products of one company over the services or products of another company that provides the same or similar services or products. If applying for funding, such organizations must be aware of potential conflicts of interest and must describe in their application the specific actions they shall take to avoid actual and perceived conflicts of interest.
Although RMA prefers cost sharing by the applicant, this program has neither a cost sharing nor a matching requirement.
To be eligible, applicants must also be able to demonstrate that they will receive a non-financial benefit as a result of a cooperative partnership agreement. Non-financial benefits must accrue to the applicant and must include more than the ability to provide employment income to the applicant or for the applicant's employees or the community. The applicant must demonstrate that performance under the cooperative partnership agreement shall further the specific mission of the applicant (such as providing research or activities necessary for graduate or other students to complete their educational program). Applications that do not demonstrate a non-financial benefit will be rejected.
Only electronic applications will be accepted and they must be submitted via Grants.gov to the Risk Management Agency in response to this Announcement. Prior to preparing an application, it is suggested that the Project Director (PD) first contact an Authorized Representative (AR) (also referred to as Authorized Organizational Representative or AOR) to determine if the organization is prepared to submit electronic applications through Grants.gov. If the organization is not prepared, the AR should see,
Grants.gov assistance is available as follows:
• Grants.gov customer supportToll Free: 1-800-518-4726
Business Hours: 24 Hours a day
Email:
The title of the application must include the (1) RMA Region, (2) the State or States within the RMA Region where the educational activities will be
A complete and valid application must include the following:
1. A completed OMB Standard Form 424, “Application for Federal Assistance.”
2. A completed OMB Standard Form 424-A, “Budget Information—Non-construction Programs.” Federal funding requested (the total of direct and indirect costs) must not exceed $99,999.
3. A completed OMB Standard Form 424-B, “Assurances, Non-constructive Programs.”
4. An Executive Summary (One page) of the Project.
5. A Proposal Narrative (Not to Exceed 15 single-sided pages in Microsoft Word), which shall also include a Statement of Work. The Statement of Work (SOW) must include each task and subtask associated with the work, the objective of each task and subtask, specific time lines for performing the tasks and subtasks, and the responsible party for completing the activities listed under each task and subtask including the specific responsibilities of partners and/or RMA. The SOW must be very clear on who does what, where, and when, as well as, the objective for each task and subtask. Letters of support for the applicant should be an appendix to the application and should not be included as part of the Proposal Narrative.
6. Budget Narrative (in Microsoft Excel) describing how the categorical costs listed on the SF 424-A are derived. The budget narrative must provide enough detail for reviewers to easily understand how costs were determined and how they relate to the goals and objectives of the project.
7. Partnering Plan that includes how each partner of the applicant (who will be working on this project) shall aid in carrying out the specific tasks and subtasks. The Partnering Plan must also include “Letters of Commitment” from each partner who shall do the specific task or subtask as identified in the SOW. The Letters must (1) be dated within 45 days of the submission and (2) list the specific tasks or subtasks the committed partner has agreed to do with the applicant on this project.
8. Project Plan of Operation in the Event of a Human Pandemic Outbreak (Pandemic Plan). RMA requires that project leaders submit a project plan of operation in case of a human pandemic event. The plan must address the concept of continuing operations as they relate to the project. This plan must include the roles, responsibilities, and contact information for the project team and individuals serving as back-ups in case of a pandemic outbreak.
9. Current and Pending Report. The application package from Grants.gov contains a document called the Current and Pending Report. On the Current and Pending Report you must state for this fiscal year if this application is a duplicate application or overlaps substantially with another application already submitted to or funded by another USDA Agency, including RMA, or other private organization. The percentage of each person's time associated with the work to be done under this project must be identified in the application. The total percentage of time for both “Current” and “Pending” projects must not exceed 100% of each person's time. Applicants must list all current public or private employment arrangements or financial support associated with the project or any of the personnel that are part of the project, regardless of whether such arrangements or funding constitute part of the project under this Announcement (supporting agency, amount of award, effective date, expiration date, expiration date of award, etc.). If the applicant has no projects to list, “N/A” should be shown on the form. An application submitted under this RFA that duplicates or overlaps substantially with any application already reviewed and funded (or to be funded) by any other organization or agency, including but not limited to other RMA, USDA, and Federal government programs, will not be funded under this program. RMA reserves the right to reject your application based on the review of this information.
10. A completed and signed OMB Standard Form LLL, Disclosure of Lobbying Activities.
11. A completed and signed AD-1049, Certification Regarding Drug-Free Workplace. Applications that do not include the items listed above will be considered incomplete, will not receive further consideration, and will be rejected.
Cooperative partnership agreement funds may not be used to:
a. Plan, repair, rehabilitate, acquire, or construct a building or facility including a processing facility;
b. Uurchase, rent, or install fixed equipment;
c. Purchase portable equipment (such as laptops, projectors, etc.)
d. Repair or maintain privately owned vehicles;
e. Pay for the preparation of the cooperative agreement application;
f. Fund political activities;
g. Purchase alcohol, food, beverage, give-away promotional items, or entertainment;
h. Lend money to support farming or agricultural business operation or expansion;
i. Pay costs incurred prior to receiving a cooperative agreement;
j. Provide scholarships to meetings, seminars or similar events;
k. Pay entrance fees or other expenses to conferences or similar activities;
l. Pay costs associated 501(c) applications;
m. Purchase electronic devices (such as I-pads, cell phones, computers or similar items) for consultants or Board Members; or
n. Fund any activities prohibited in 7 CFR Parts 3015 and 3019, as applicable.
Total costs for salary and benefits allowed for projects under this Announcement will be limited to not more than 70 percent reimbursement of the funds awarded under the cooperative partnership agreement. The reasonableness of the total costs for salary and benefits allowed for projects under this Announcement will be reviewed and considered by RMA as part of the application review process. Applications for which RMA does not consider the salary and benefits reasonable for the proposed application will be rejected, or will only be offered a cooperative agreement upon the condition of changing the salary and benefits structure to one deemed appropriate by RMA for that. The goal of the Risk Management Education and Outreach Partnerships Program is to maximize the use of the limited funding available for crop insurance risk management education for producers of Priority Commodities and Special Emphasis Topics.
1. Indirect costs allowed for projects submitted under this Announcement will be limited to ten (10) percent of the total direct cost of the cooperative partnership agreement. Therefore, when preparing budgets, applicants should limit their requests for recovery of indirect costs to the lesser of their institution's official negotiated indirect cost rate or 10 percent of the total direct costs.
2. RMA reserves the right to negotiate final budgets with successful applicants.
Applicants are entirely responsible for ensuring that RMA receives a complete application package by the closing date and time. RMA strongly encourages applicants to submit applications well before the deadline to allow time for correction of technical errors identified by Grants.gov. Application packages submitted after the deadline will be rejected.
Receipt of applications may be acknowledged by email, whenever possible; however it is the responsibility of the applicant to check Grants.gov for successful submission. Therefore, applicants are encouraged to provide email addresses in their applications. There will be no notification of incomplete, unqualified or unfunded applications until the award decisions have been made. When received by RMA, applications will be assigned an identification number. This number will be communicated to applicants in the acknowledgement of receipt of applications. An application's identification number must be referenced in all correspondence submitted by any party regarding the application. If the applicant does not receive an acknowledgement of application receipt by 15 days following the submission deadline, the applicant must notify RMA's point of contact indicated in Section VII, Agency Contact.
Applications submitted under the Risk Management Education and Outreach Partnerships Program will be evaluated within each RMA Region according to the following criteria:
Each application must demonstrate that the project benefits to producers warrant the funding requested. Applications will be scored according to the extent they can: (a) Identify the specific actions producers will likely be able to take as a result of the educational activities described in the Proposal Narrative's Statement of Work (SOW); (b) identify the specific measures for evaluating results that will be employed in the project; (c) reasonably estimate the total number of producers that will be reached through the various methods and educational activities described in the Statement of Work; (d) identify the number of meetings that will be held; (e) provide an estimate of the number of training hours that will be held; (f) provide an estimated cost per producer, and (e) justify such estimates with specific information. Estimates for reaching agribusiness professionals may also be provided but such estimates must be provided separately from the estimates of producers. Reviewers' scoring will be based on the scope and reasonableness of the application's clear descriptions of specific expected actions producers will accomplish, and well-designed methods for measuring the project's results and effectiveness. Applications using direct contact methods with producers will be scored higher.
Applications must identify the type and number of producer actions expected as a result of the projects, and how results will be measured, in the following categories:
• Understanding risk management tools;
• Evaluating the feasibility of implementing various risk management options;
• Developing risk management plans and strategies;
• Deciding on and implementing a specific course of action (e.g., participation in crop insurance programs or implementation of other risk management actions).
Each application must include a clear and specific Statement of Work for the project as part of the Proposal Narrative. For each of the tasks contained in the Description of Agreement Award (see Section II, Award Information), the application must identify and describe specific subtasks, responsible entities including partners, expected completion dates, RMA substantial involvement, and deliverables that shall further the purpose of this program. Applications will obtain a higher score to the extent that the Statement of Work is specific, measurable and reasonable, has specific deadlines for the completion of tasks and subtasks, and relates directly to the required activities and the program purpose described in this Announcement.
Each application must demonstrate experience and capacity to partner with and gain the support of producer organizations, agribusiness professionals, subject matter experts, and agricultural leaders to carry out a local program of education and information in a designated State. Each application must establish a written Partnering Plan that describes how each partner shall aid in carrying out the project goal and purpose stated in this announcement and should include letters of commitment dated no more than 45 days prior to submission of the relevant application stating that the partner has agreed to do this work. Each application must ensure this Plan includes a list of all partners working on the project, their titles, and how they will be contribute to the deliverables listed in the application. The Partnering Plan will not count towards the maximum length of the application narrative. Applications will receive higher scores to the extent that the application demonstrates: (a) That partnership commitments are in place for the express purpose of delivering the program in this announcement; (b) that a broad group of producers will be reached within the State; (c) that partners are contributing to the project and involved in recruiting producers to attend the training; (d) that a substantial effort has been made to partner with organizations that can meet the needs of producers in the designated State; and (e) statements from each partner regarding the number of producers that partner is committed to recruit for the project that would support the estimates specified under the Project Impacts criterion.
Each application must demonstrate an ability to implement sound and effective project management practices. Higher scores in this category will be awarded to applications that demonstrate organizational skills, leadership, and experience in delivering services or programs that assist agricultural producers in the designated State. Each application must demonstrate that the Project Director has the capability to accomplish the project goal and purpose stated in this announcement by (a) having a previous or existing working relationship with the agricultural community in the designated State of the application, including being able to recruit approximately the number of producers to be reached in the application and/or (b) having established the capacity to partner with and gain the support of producer organizations, agribusiness professionals, and agribusiness leaders locally to aid in carrying out a program of education and information, including being able to recruit approximately the number of producers to be reached in this application. Applications must designate an alternate individual to assume responsibility as Project Director
Applications must provide a detailed budget summary, both in narrative and in Microsoft Excel, that clearly explains and justifies costs associated with the project's tasks and subtasks. Applications will receive higher scores in this category to the extent that they can demonstrate a fair and reasonable use of funds appropriate for the project and a budget that contains the
RMA is focused on adding diversity to this program. RMA may add up to an additional 20 points to the final paneled score of any submission demonstrating a
“Minority” producers are defined as:
• African American producers
• Asian American, Pacific Islander producers
• Hispanic producers
• Native American producers
RMA is focused on providing crop insurance education and other risk management training and outreach to the States and counties identified in the USDA StrikeForce initiative (
RMA may add up to an additional 20 points to the final paneled score of any submission demonstrating that the activities describe in the proposal will be directed to the producers in the StrikeForce areas. The application must state in the Partnering Plan that a StrikeForce Partnership is in place as validated by a current Letter of Commitment that identifies the producer group or community based group that represent producers farming in the areas identified in the StrikeForce areas noted below:
StrikeForce Counties: Arkansas, Bradley, Chicot, Clark, Columbia, Dallas, Desha, Drew, Hempstead, Howard, Jackson, Lafayette, Lawrence, Lee, Mississippi, Monroe, Nevada, Newton, Ouachita, Phillips, Randolph, Searcy, Sevier, St. Francis, and Woodruff
StrikeForce Counties: Adams, Alamosa, Arapahoe, Baca, Bent, Cheyenne, Costilla, Conejos, Crowley, Denver, Elbert, El Paso, Huerfano, Jefferson, Kiowa, Lake, Las Animas, Lincoln, Logan, Morgan, Montezuma, Otero, Pueblo, Prowers, Rio Grande, San Juan, Saquache, Sedgwick, and Weld
StrikeForce Counties: Appling, Atkinson, Baker, Baldwin, Ben Hill, Berrien, Bulloch, Calhoun, Candler, Charlton, Clay, Clinch, Coffee, Colquitt, Cook, Crisp, Decatur, Dodge, Dooley, Early, Emanuel, Evans, Grady, Hancock, Irwin, Jefferson, Jenkins, Johnson, Laurens, Macon, Miller, Mitchell, Montgomery, Peach, Pulaski, Quitman, Randolph, Screven, Seminole, Stewart, Sumter, Talbot, Taliaferro, Tattnall, Taylor, Telfair, Terrell, Thomas, Tift, Toombs, Treutlen, Turner, Ware, Warren, Washington, Wayne, Webster, Wheeler, Wilcox, and Wilkes
StrikeForce Counties: Adams, Amite, Attala, Benton, Bolivar, Calhoun, Chickasaw, Choctaw, Claiborne, Clarke, Clay, Coahoma, Covington, Franklin, Greene, Grenada, Holmes, Humphreys, Issaquena, Jasper, Jefferson, Jefferson Davis, Jones, Kemper, Lafayette, Lauderdale, Lawrence, Leake, Leflore, Lincoln, Lowndes, Marion, Monroe, Montgomery, Noxubee, Oktibbeha, Panola, Pike, Quitman, Scott, Sharkey, Sunflower, Tallahatchie, Walthall, Warren, Washington, Wayne, Webster, Wilkinson, Winston, Yalobusha, and Yazoo
StrikeForce Counties: Carson City, Clark, Churchill, Douglas, Elko, Esmeralda, Eureka, Humboldt, Lander, Lincoln, Lyon, Mineral, Nye, Pershing, Storey, Washoe, and White Pine
StrikeForce Counties: Lincoln, Rio Arriba, San Juan, San Miguel, Santa Fe and Taos
Applications will be evaluated using a two-part process. First, each application will be screened by USDA and RMA personnel to ensure that it meets the requirements in this Announcement. Applications that do not meet the requirements of this Announcement or that are incomplete will not receive further consideration during the next process. Applications that meet Announcement requirements will be sorted into the RMA Region in which the applicant proposes to conduct the project and will be presented to a review panel for consideration. Second, the review panel will meet to consider and discuss the merits of each application. The panel will consist of not less than three independent reviewers. Reviewers will be drawn from USDA, other Federal agencies, and public and private organizations, as needed. After considering the merits of all applications within an RMA Region, panel members will score each application according to the criteria and point values listed above. The panel will then rank each application against others within the RMA Region according to the scores received. The review panel will report the results of the evaluation to the Manager of FCIC. The panel's report will include the recommended applicants to receive cooperative partnership agreements for each RMA Region. Funding will not be provided for an application receiving a score less than 60. Funding will not be provided for an application that is “highly similar” to a higher-scoring application in the same RMA Region. “Highly similar” is defined as one that proposes to reach the same producers, farmers and ranchers who are likely to be reached by another applicant that scored higher by the panel and provides the same general educational material. An organization, or group of organizations in partnership, may apply for funding under other FCIC or RMA programs, in addition to the program described in this Announcement. However, if the Manager of FCIC determines that an application recommended for funding is sufficiently similar to a project that has been funded or has been recommended to be funded under another RMA or FCIC program, then the Manager may elect not to fund that application in whole or in part. The Manager of FCIC will make the final determination on those applications that will be awarded funding.
The award document will provide pertinent instructions and information including, at a minimum, the following:
(1) Legal name and address of performing organization or institution to which the Manager of FCIC has issued an award under the terms of this request for applications;
(2) Title of project;
(3) Name(s) and employing institution(s) of Project Directors chosen to direct and control approved activities;
(4) Identifying award number assigned by RMA;
(5) Project period, specifying the amount of time RMA intends to support the project without requiring recompeting for funds;
(6) Total amount of RMA financial assistance approved by the Manager of FCIC during the project period;
(7) Legal authority(ies) under which the award is issued;
(8) Appropriate Catalog of Federal Domestic Assistance (CFDA) numbers;
(9) Applicable award terms and conditions (see
(10) Approved budget plan for categorizing allocable project funds to accomplish the stated purpose of the award; and
(11) Other information or provisions deemed necessary by RMA to carry out its respective awarding activities or to accomplish the purpose of a particular award.
Following approval by the Manager of FCIC of the applications to be selected for funding, project leaders whose applications have been selected for funding will be notified. Within the limit of funds available for such a purpose, the Manager of FCIC will enter into cooperative partnership agreements with those selected applicants.
After a cooperative partnership agreement has been signed, RMA will extend to awardees, in writing, the authority to draw down funds for the purpose of conducting the activities listed in the agreement. All funds provided to the applicant by FCIC must be expended solely for the purpose for which the funds are obligated in accordance with the approved cooperative partnership agreement and budget, the regulations, the terms and conditions of the award, and the applicability of Federal cost principles. No commitment of Federal assistance beyond the project period is made or implied for any award resulting from this notice.
Notification of denial of funding will be sent to applicants after final funding decisions have been made and the awardees announced publicly. Unsuccessful applicants will be provided a debriefing upon request to the Director, Risk Management Education.
Applicants awarded cooperative partnership agreements will be required to use a USDA logo provided by RMA for all instructional and promotional materials, when deemed appropriate.
Applicants awarded cooperative partnership agreements may be required to assist RMA in evaluating the effectiveness of its educational programs by notifying RMA of upcoming training meeting and by providing documentation of educational activities, materials, and related information to any representative selected by RMA for program evaluation purposes.
Upon written request from the applicant, scores from the evaluation panel, not including the identity of reviewers, will be sent to the applicant after the review and awards process has been completed.
The names of applicants, the names of individuals identified in the applications, the content of applications, and the panel evaluations of applications will all be kept confidential, except to those involved in the review process, to the extent permitted by law. In addition, the identities of review panel members will remain confidential throughout the entire review process and will not be released to applicants. At the end of the fiscal year, names of panel members will be made available. However, panelists will not be identified with the review of any particular application. When an application results in a cooperative partnership agreement, that agreement becomes a part of the official record of RMA transactions, available to the public upon specific request. Information that the Secretary of Agriculture determines to be of a confidential, privileged, or proprietary nature will be held in confidence to the extent permitted by law. Therefore, any information that the applicant wishes to be considered confidential, privileged, or proprietary should be clearly marked within an application, including the basis for such designation. The original copy of an application that does not result in an award will be retained by RMA for a period of one year. Other copies will be destroyed. Copies of applications not receiving awards will be released only with the express written consent of the applicant or to the extent required by law. An application may be withdrawn at any time prior to award.
Applicants awarded cooperative partnership agreements are subject to audit.
All cooperative agreements will be subject to the requirements of 7 CFR part 3015, “Uniform Federal Assistance Regulations.” A signed copy of the certification and disclosure forms must be submitted with the application and are available at the address and telephone number listed in Section VII, Agency Contact.
Departmental regulations published at 7 CFR part 3018 imposes prohibitions and requirements for disclosure and certification related to lobbying on awardees of Federal contracts, grants, cooperative partnership agreements and loans. It provides exemptions for Indian Tribes and tribal organizations. Current and prospective awardees, and any subcontractors, are prohibited from using Federal funds, other than profits from a Federal contract, for lobbying Congress or any Federal agency in connection with the award of a contract, grant, cooperative partnership agreement or loan. In addition, for each award action in excess of $100,000 ($150,000 for loans) the law requires awardees and any subcontractors to complete a certification in accordance with Appendix A to Part 3018 and a disclosure of lobbying activities in accordance with Appendix B to Part 3018.: The law establishes civil penalties for non-compliance.
All cooperative partnership agreements funded as a result of this notice will be subject to the requirements contained in all applicable OMB circulars at
Awardees and all partners/collaborators of all cooperative agreements funded as a result of this notice are required to know and abide by Federal civil rights laws, which include, but are not limited to, Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
RMA requires that project leaders participate in a post award teleconference, if conducted, to become fully aware of agreement requirements and for delineating the roles of RMA personnel and the procedures that will be followed in administering the agreement and will afford an opportunity for the orderly transition of agreement duties and obligations if different personnel are to assume post-award responsibility.
RMA requires that project leaders participate in a post award Civil Rights and EEO training teleconference to become fully aware of Civil Rights and EEO law and requirements.
RMA requires that project leaders upload digital copies of all risk management educational materials developed because of the project to the National AgRisk Education Library at
RMA requires that project leaders submit a project plan of operation in case of a human pandemic event. The plan should address the concept of continuing operations as they relate to the project. This should include the roles, responsibilities, and contact information for the project team and individuals serving as back-ups in case of a pandemic outbreak.
Awardees will be required to submit quarterly progress reports using the Performance Progress Report (SF-PPR) as the cover sheet, and quarterly financial reports (OMB Standard Form 425) throughout the project period, as well as a final program and financial report not later than 90 days after the end of the project period. The quarterly progress reports and final program reports MUST be submitted through the Results Verification System. The Web site address is
Applicants and other interested parties are encouraged to contact: USDA-RMA-RME, phone: 202-720-0779, email:
The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012 (Pub. L. 112-55) contains the restriction of the expenditure of funds to enter into financial transactions Corporations that have been convicted of felonies within the past 24 months or that have federal tax delinquencies where the agency is aware of the felonies and/or tax delinquencies.
None of the funds made available by this Act may be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to any corporation that was convicted (or had an officer or agency of such corporation acting on behalf of the corporation convicted) of a felony criminal violation under any Federal or State law within the preceding 24 months, where the awarding agency is aware of the conviction, unless the agency has considered suspension or debarment of the corporation, or such officer or agent, and made a determination that this further action is not necessary to protect the interest of the Government.
None of the funds made available by this Act may be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation that [has] any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless the agency has considered suspension or debarment of the corporation and made a determination that this further action is not necessary to protect the interests of the Government.
Under the Federal Funding Accountability and Transparency Act of 2006, the applicant must comply with the additional requirements set forth in Attachment A regarding the Dun and Bradstreet Universal Numbering System (DUNS) Requirements and the CCR Requirements found at 2 CFR part 25. For the purposes of this RFA, the term “you” in Attachment A will mean “applicant”. The applicant shall comply with the additional requirements set forth in Attachment B regarding Subawards and Executive Compensation. For the purpose of this RFA, the term “you” in Attachment B will mean “applicant”. The Central Contract Registry CCR is a database that serves as the primary Government repository for contractor information required for the conduct of business with the Government. This database will also be used as a central location for maintaining organizational information for organizations seeking and receiving grants from the Government. Such organizations must register in the CCR prior to the submission of applications. A DUNS number is needed for CCR registration. For information about how to register in the CCR, visit “Get Registered” at the Web site,
Funding availability for this program may be announced at approximately the same time as funding availability for similar but separate programs—and CFDA No. 10.458 (Crop Insurance Education in Targeted States). These programs have some similarities, but also key differences. The differences stem from important features of each program's authorizing legislation and different RMA objectives. Prospective applicants should carefully examine and compare the notices for each program.
Unless you are exempted from this requirement under 2 CFR 25.110, you as the recipient must maintain the currency of your information in the CCR until you submit the
If you are authorized to make subawards under this award, you:
1. Must notify potential sub recipients that no entity (see definition in paragraph C of this award) may receive a subaward from you unless the entity has provided its DUNS number to you.
2. May not make a subaward to an entity unless the entity has provided its DUNS number to you.
1. Central Contractor Registration (CCR) means the Federal repository into which an entity must provide information required for the conduct of business as a recipient. Additional information about registration procedures may be found at the CCR Internet site (currently at
2. Data Universal Numbering System (DUNS) number means the nine-digit number established and assigned by Dun and Bradstreet, Inc. (D & B) to uniquely identify business entities. A DUNS number may be obtained from D & B by telephone (currently 866-705-5711) or the Internet (currently at
3. Entity, as it is used in this award term, means all of the following, as defined at 2 CFR part 25, subpart C:
a. A Governmental organization, which is a State, local government, or Indian Tribe;
b. A foreign public entity;
c. A domestic or foreign nonprofit organization;
d. A domestic or foreign for-profit organization; and
e. A Federal agency, but only as a subrecipient under an award or subaward to a non-Federal entity.
4. Subaward:
a. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which you received this award and that you as the recipient award to an eligible subrecipient.
b. The term does not include your procurement of property and services needed to carry out the project or program (for further explanation, see Sec. 10 of the attachment to OMB Circular A-I33, “Audits of States, Local Governments, and Non-Profit Organizations”).
c. A subaward may be provided through any legal agreement, including an agreement that you consider a contract.
5. Subrecipient means an entity that:
a. Receives a subaward from you under this award; and
b. Is accountable to you for the use of the Federal funds provided by the subaward.
1. Applicability. Unless you are exempt as provided in paragraph d. of this award term, you must report each action that obligates $25,000 or more in Federal funds that does not include Recovery funds (as defined in section 1512(a)(2) of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) for a subaward to an entity (see definitions in paragraph e. of this award term).
2. Where and when to report.
i. You must report each obligating action described in paragraph a.I. of this award term to
ii. For sub award information, report no later than the end of the month following the month in which the obligation was made. (For example, if the obligation was made on November 7, 2012, the obligation must be reported by no later than December 31, 2012.)
3. What to report. You must report the information about each obligating action that the submission instructions posted at
1. Applicability and what to report. You must report total compensation for each of your five most highly compensated executives for the preceding completed fiscal year, if—
i. The total Federal funding authorized to date under this award is $25,000 or more;
ii. In the preceding fiscal year, you received—
(A) 80 percent or more of your annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
(B) $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
iii. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 780(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at
2. Where and when to report. You must report executive total compensation described in paragraph b.1. of this award term:
i. As part of your registration profile at
ii. By the end of the month following the month in which this award is made, and annually thereafter.
1. Applicability and what to report. Unless you are exempt as provided in paragraph d. of this award term, for each first-tier sub recipient under this award, you shall report the names and total compensation of each of the sub recipient's five most highly compensated executives for the sub recipient's preceding completed fiscal year, if—
i. in the subrecipient's preceding fiscal year, the subrecipient received—
(A) 80 percent or more of its annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at ∼ CFR 170.320 (and subawards); and
(B) $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts), and Federal financial assistance subject to the Transparency Act (and subawards); and
ii. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 780(d) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at
2. Where and when to report. You must report subrecipient executive total compensation described in paragraph c.1. of this award term:
i. To the recipient.
ii. By the end of the month following the month during which you make the subaward. For example, if a subaward is obligated on any date during the month of October of a given year (i.e., between October 1 and 31), you must report any required compensation information of the subrecipient by November 30 of that year.
If, in the previous tax year, you had gross income, from all sources, under $300,000, you are exempt from the requirements to report:
i. Subawards, and
ii. The total compensation of the five most highly compensated executives of any sub recipient.
1. Entity means all of the following, as defined in 2 CFR part 25:
i. A Governmental organization, which is a State, local government, or Indian tribe;
ii. A foreign public entity;
iii. A domestic or foreign nonprofit organization;
iv. A domestic or foreign for-profit organization;
v. A Federal agency, but only as a subrecipient under an award or subaward to a non-Federal entity.
2. Executive means officers, managing partners, or any other employees in management positions.
3. Subaward:
i. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which you received this award and that you as the recipient award to an eligible subrecipient.
ii. The term does not include your procurement of property and services needed to carry out the project or program (for further explanation, see Sec. 210 of the attachment to OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations”).
iii. A subaward may be provided through any legal agreement, including an agreement that you or a subrecipient considers a contract.
4. Subrecipient means an entity that:
i. Receives a sub award from you (the recipient) under this award; and
ii. Is accountable to you for the use of the Federal funds provided by the subaward.
5. Total compensation means the cash and noncash dollar value earned by the executive during the recipient's or subrecipient's preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2):
i. Salary and bonus.
ii. Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.
iii. Earnings for services under non-equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees.
iv. Change in pension value. This is the change in present value of defined benefit and actuarial pension plans.
v. Above-market earnings on deferred compensation which is not tax-qualified.
vi. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000.
National Institute of Food and Agriculture, USDA.
Notice.
The National Institute of Food and Agriculture (NIFA) is announcing the release of the Veterinary Medicine Loan Repayment Program (VMLRP) Request for Applications (RFA) at
The FY 2012 Veterinary Medicine Loan Repayment Program (VMLRP) application package will be available at
Gary Sherman; National Program Leader, Veterinary Science; National Institute of Food and Agriculture; U.S. Department of Agriculture; STOP 2240; 1400 Independence Avenue SW.; Washington, DC 20250-2240; Voice: 202-401-4952; Fax: 202-401-6156; Email:
On October 1, 2009, the Cooperative State Research, Education, and Extension Service (CSREES) became the National Institute of Food and Agriculture (NIFA) as mandated by the Food, Conservation, and Energy Act of 2008, section 7511(f) [Pub. L. 110-246]. Accordingly, the authority to administer the VMLRP transferred from CSREES to NIFA.
In January 2003, the National Veterinary Medical Service Act (NVMSA) was passed into law adding section 1415A to the National Agricultural Research, Extension, and Teaching Policy Act of 1997 (NARETPA). This law established a new Veterinary Medicine Loan Repayment Program (7 U.S.C. 3151a) authorizing the Secretary of Agriculture to carry out a program of entering into agreements with veterinarians under which they agree to provide veterinary services in veterinarian shortage situations. In November 2005, the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2006 (Pub. L. 109-97) appropriated $495,000 for CSREES to implement the VMLRP and represented the first time funds had been appropriated for this program.
In February 2007, the Revised Continuing Appropriations Resolution, 2007 (Pub. L. 110-5) appropriated an additional $495,000 to CSREES for support of the program, in December 2007, the Consolidated Appropriations Act, 2008 appropriated an additional $868,875 to CSREES for support of this program, in March 2009, the Omnibus Appropriations Act, 2009 (Pub. L. 111-8) was enacted, providing an additional $2,950,000 for the VMLRP, in October 2009, the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2010 (Pub. L. 111-80) appropriated an additional $4,800,000 for the VMLRP, and in April 2011, the President signed into law, Public Law 112-10, Department of Defense and Full-Year Continuing Appropriations Act, 2011, which, after the .2% rescission, appropriated an additional $4,790,400 for the VMLRP. On November 18, 2011, the President signed into law the Consolidated and Further Continuing Appropriations Act, 2012 (Pub. L. 112-55), which appropriated $4,790,000 for the VMLRP.
Section 7105 of the Food, Conservation, and Energy Act of 2008, Public Law 110-246, (FCEA) amended section 1415A to revise the determination of veterinarian shortage situations to consider (1) geographical areas that the Secretary determines have a shortage of veterinarians; and (2) areas of veterinary practice that the Secretary determines have a shortage of veterinarians, such as food animal medicine, public health, epidemiology, and food safety. This section also added that priority should be given to agreements with veterinarians for the practice of food animal medicine in veterinarian shortage situations.
NARETPA section 1415A requires the Secretary, when determining the amount of repayment for a year of service by a veterinarian to consider the ability of USDA to maximize the number of agreements from the amounts appropriated and to provide an incentive to serve in veterinary service shortage areas with the greatest need. This section also provides that loan repayments may consist of payments of the principal and interest on government and commercial loans received by the individual for the attendance of the individual at an accredited college of veterinary medicine resulting in a degree of Doctor of Veterinary Medicine or the equivalent. This program is not authorized to provide repayments for any government or commercial loans incurred during the pursuit of another degree, such as an associate or bachelor degree. Loans eligible for repayment include educational loans made for one or more of the following: Loans for tuition expenses; other reasonable educational expenses, including fees, books, and laboratory expenses, incurred by the individual; and reasonable living expenses as determined by the Secretary. In addition, the Secretary is directed to
The final rule was published in the
In FY 2010, VMLRP announced its first funding opportunity and received 260 applications from which NIFA issued 53 VMLRP awards totaling $5,186,000. In FY 2011, VMLRP announced its second funding opportunity and received 159 applications from which NIFA issued 78 VMLRP awards totaling $7,506,000. Consequently, up to $4,300,000 is available to support this program in FY 2012. Funding for future years will be based on annual appropriations and balances, if any, remaining from prior years.
The eligibility criteria for applicants and the application forms and associated instructions needed to apply for a VMLRP award can be viewed and downloaded from the VMLRP Web site at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Consolidated Appropriations Act of 2004 (Public Law (Pub. L.) 108-199) was signed into law on January 23, 2004. Section 803 of this law allocates the Aleutian Islands (AI) directed pollock fishery to the Aleut Corporation for economic development of Adak, Alaska. The statute permits the Aleut Corporation to authorize one or more agents for activities necessary for conducting the AI directed pollock fishery. Management provisions for the AI directed pollock fishery include: restrictions on the harvest specifications for the AI directed pollock fishery; provisions for fishery monitoring; reporting requirements; and an AI Chinook salmon prohibited species catch limit that, when reached, would close the existing Chinook salmon savings areas in the AI.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Institute of Standards and Technology (NIST), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before June 18, 2012.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Deirdre McMahon, National Institute of Standards and Technology—Manufacturing Extension Partnership, 100 Bureau Drive, Stop 4800, 301-975-8328 (phone). In addition, written comments may be sent via email to
Sponsored by NIST, the Manufacturing Extension Partnership (MEP) is a national network of locally-
In order to reflect new initiatives and new data needs, NIST MEP has identified a need to revise its existing reporting processes by modifying existing reporting elements and adding additional elements that will enable NIST MEP to better monitor and assess the extent to which the Centers are meeting program goals and milestones.
The information will be collected from the MEP Centers through the MEP Enterprise Information System (MEIS),
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability.
NMFS has completed a Draft Environmental Assessment (EA) for 10(a)(1)(A), Enhancement of the Species Permit Application for the collection and transport of Spring-Run Chinook for the San Joaquin River Restoration Program.
Written comments on the draft EA must be received at the appropriate address or fax number (see
Written comments on the draft EA should be submitted to the Protected Resources Division, NMFS, 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814. Comments may also be submitted via fax to (916) 930-6329 or by email to
Elif Fehm-Sullivan, Sacramento, CA (ph: 916-930-3723, email:
The EA is available for review upon written request or by appointment in the following office: the Protected Resources Division, NMFS, 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814.; or on the Web site
This EA is for issuance of an Endangered Species Act section 10(a)(1)(A) permit to US Fish and Wildlife Service to collect Central Valley spring-run Chinook salmon eggs and juveniles from the Feather River Fish Hatchery to place into the San Joaquin Conservation Facility and enclosed net pens and egg boxes placed within the San Joaquin River, as an initial step to further the process of re-establishing this species in the San Joaquin River below Friant Dam.
Three public meetings are to be held at which the public can make comments on the Draft EA. The first meeting will be held in Chico, CA on May 1 at the Chico Area Recreation and Park District, 545 Vallombrosa Avenue from 5:30 p.m. to 7:30 p.m. The second meeting will be in Fresno, CA on May 3 at the Fresno Metropolitan Flood Control District Board Meeting Room, 5469 E. Olive from 5:30 p.m. to 7:30 p.m. (The public should park in the front parking area (rear parking area closes at 5:30 p.m. with no exit after that time) and enter the door located on the west side of the front building); and the third meeting will be in Los Banos, CA on May 4 at the Los Banos Community Center, 645 7th Street from 2 p.m. to 4 p.m.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of issuance of a Letter of Authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that a Letter of Authorization (LOA) has been issued to the Alaska Aerospace Corporation (AAC) to take two species of pinnipeds incidental to space vehicle and missile launch operations at the Kodiak Launch Complex (KLC) in Kodiak, Alaska.
Effective from April 30, 2012, through April 29, 2013.
The LOA and supporting documentation are available for review by writing to Tammy C. Adams, Acting Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, by telephoning the contact listed under
Michelle Magliocca, Office of Protected Resources, NMFS, 301-427-8401.
Sections 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the identified species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth in the regulations. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Regulations governing the taking of Steller sea lions (
On February 27, 2012, NMFS received a request from the AAC for renewal of an LOA issued on April 30, 2011, authorizing the take of marine mammals incidental to a maximum of 12 space launch vehicles, long-range ballistic target missiles, and other smaller missile systems at the KLC. The AAC has complied with the measures required in 50 CFR 217.70-75, as well as the associated 2011-2012 LOA, and submitted the reports and other documentation required by the final rule and the 2011-2012 LOA.
As described in the AAC's 2011-2012 annual report, launch activities conducted at the KLC were within the scope and amounts authorized by the 2011-2012 LOA and the levels of take remain within the scope and amounts contemplated by the final rule. Only one launch occurred at the KLC under the 2011-2012 LOA.
In 2012-2013, the AAC expects to conduct the same type and amount of launches identified in the 2011-2012 LOA. Similarly, the authorized take will remain within the annual estimates analyzed in the final rule.
The AAC submitted their annual monitoring report within the required timeframe and the report is posted on NMFS Web site:
The AAC complied with the requirements of the 2011-2012 LOA. Based on our review of the record, NMFS has determined that the marine mammal take resulting from the 2011-2012 launch operations falls within the levels previously anticipated, analyzed, and authorized. The record supports NMFS' conclusion that the number of marine mammals taken by the 2012-2013 launch operations will have no more than a negligible impact on the affected species or stock of marine mammals and will not have an unmitigable adverse impact on the availability of these species or stocks for taking for subsistence uses. Accordingly, NMFS has issued a 1-year LOA for launch operations conducted at the KLC from April 30, 2012, through April 29, 2013.
NOAA, Department of Commerce (DOC).
Notice of updates to the List of National System of Marine Protected Areas (MPAs) and response to comments on nominations of existing MPAs to the national system.
The National System of Marine Protected Areas (MPAs) provides a mechanism for MPAs managed by diverse government agencies to work together on common conservation priorities. In July 2011, NOAA and the Department of the Interior (DOI) invited federal, state,
The national system and the nomination process are described in the Framework for the National System of Marine Protected Areas of the United States of America (Framework), developed in response to Executive Order 13158 on Marine Protected Areas. The final Framework was published on November 19,2008, and provides guidance for collaborative efforts among federal, state, commonwealth, territorial, tribal and local governments and stakeholders to develop a national system that includes existing MPAs meeting national system criteria as well as new sites that may be established by managing agencies to fill key conservation gaps in important ocean areas.
Lauren Wenzel, NOAA, at 301-713-3100, ext. 136 or via email at
The national system of MPAs is made up of member MPA sites, networks and systems established and managed by federal, state, commonwealth, territorial, tribal and/or local governments that collectively enhance conservation of the nation's natural and cultural marine heritage and represent its diverse ecosystems and resources. Although participating sites continue to be managed independently, national system MPAs also work together at the regional and national levels to achieve common objectives for conserving the nation's important natural and cultural resources, with emphasis on achieving the priority conservation objectives of the Framework. MPAs include sites with a wide range of protection, from multiple use areas to no take reserves where all extractive uses are prohibited. The term MPA refers only to the marine portion of a site (below the mean high tide mark) that may include both terrestrial and marine components.
The national system is a mechanism to foster greater collaboration among participating MPA sites and programs in order to enhance stewardship in the waters of the United States. The act of joining the national system does not create new MPAs, or create new restrictions for the existing MPAs that become members. In fact, a site must have existing protections of natural and/or cultural resources in place in order to be eligible to join the national system, as well as meeting other criteria described in the Framework. Joining the national system does not establish new regulatory authority or change existing regulations in any way, require changes affecting the designation process or management of member MPAs or bring state, territorial, tribal or local sites under federal authority.
Benefits of joining the national system, which are expected to increase over time as the system matures, include a facilitated means to work with other sites in the MPA's region, and nationally on issues of common conservation concern; fostering greater public and international recognition of U.S. MPAs and the resources they protect; priority in the receipt of available technical and other support for cross-cutting needs; and the opportunity to influence federal and regional ocean conservation and management initiatives (such as integrated ocean observing systems, systematic monitoring and evaluation, targeted outreach to key user groups, and helping to identify and address MPA research needs). In addition, the national system provides a forum for coordinated regional planning about place-based conservation priorities that does not otherwise exist.
The Framework describes two major focal areas for building the national system of MPAs—a nomination process to allow existing MPAs that meet the entry criteria to become part of the system and a collaborative regional gap analysis process to identify areas of significance for natural or cultural resources that may merit additional protection through existing federal, state, commonwealth, territorial, tribal or local MPA authorities. A call for nominations is issued annually, and may also be issued at the request of an MPA management agency. This round of nominations began on July 6, 2011 and the deadline for nominations was October 31, 2011. A public comment period was held from December 30, 2011 through February 13, 2012.
There are three entry criteria for existing MPAs to join the national system, plus a fourth for cultural heritage. Sites that meet all pertinent criteria are eligible for the national system.
1. Meets the definition of an MPA as defined in the Framework.
2. Has a management plan (can be site-specific or part of a broader programmatic management plan; must have goals and objectives and call for monitoring or evaluation of those goals and objectives).
3. Contributes to at least one priority conservation objective as listed in the Framework (see below).
4. Cultural heritage MPAs must also conform to criteria for the National Register for Historic Places.
Additional sites not currently meeting the management plan criterion can be evaluated for eligibility to be nominated to the system on a case-by-case basis based on their ability to fill gaps in the national system coverage of the priority conservation objectives and design principles described in the Framework.
The MPA Center used existing information in the MPA Inventory to determine which MPAs meet the first and second criteria. The inventory is online at
The following MPAs have been nominated by the American Samoa
On December 30, 2011, NOAA and DOI (agencies) published the Nomination of Existing Marine Protected Areas (MPAs) to the National System of Marine Protected Areas for public comment, for the nomination of fifty-eight existing MPAs. By the end of the 45-day comment period, two public comments had been received. Both comments expressed support for the nomination of the Fort Pulaski National Monument, noting that its membership in the national system provides an opportunity to raise awareness of the area, highlight opportunities for research and increase cooperation with other protected areas and marine research institutions in the region.
The White House Council for Community Solutions gives notice of the following meeting:
Wednesday, May 9, 2012, 1:15-2 p.m. Eastern Standard Time.
The Council will meet via phone conference call. The meeting will be open to the public in Listen-Only mode and it will be recorded. To dial in, please call 866-525-0652. More details and materials will be available on the Council's Web site (
The public is invited to submit publicly available comments through the Council's Web site. To send statements to the Council, please send written statements to the Council's electronic mailbox at
Open.
The purpose of this meeting is to review and make decisions on the Council's recommendations that will be included in its final report to the President. The Report will be available to the public on the Council's Web site referenced above when sent to the President. The report will provide a record of the work of the Council from its establishment in December 2010.
Kathy Bendheim, Executive Director, White House Council for Community Solutions, Corporation for National and Community Service, 10th Floor, Room 10911, 1201 New York Avenue NW., Washington, DC 20525. Phone: (202) 491-3809. Fax: (202) 606-3464. Email:
Defense Acquisition University, DoD.
Meeting notice.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the following Federal advisory committee meeting of the Defense Acquisition University Board of Visitors will take place.
Wednesday, May 9, 2012, from 8:30 a.m.-12 p.m.
DAU Mid-Atlantic Region, 23330 Cottonwood Pkwy, California, MD 20619.
Christen Goulding, Protocol Director, DAU, Phone: 703-805-5134, Fax: 703-805-5940, Email:
8:30 a.m. Welcome and approval of minutes.
8:40 a.m. DAU Mid-Atlantic Region Highlights and update on Certification to Qualification.
9:30 a.m. College of Contract Management.
10:30 a.m. Services Acquisition.
11:15 a.m. Recognition of Service.
11:30 a.m. Open Forum Discussion.
12 p.m. Adjourn.
DoD.
Re-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 102-3.50(d), the Department of Defense gives notice that it is renewing the charter for the Board of Visitors, National Defense University (hereafter referred to as “the Board”).
The Board of Visitors, National Defense University, pursuant to 41 CFR 102-3.50(d), is a discretionary Federal advisory committee that shall provide the Secretary of Defense through the Chairman of the Joint Chiefs of Staff and the President of the National Defense University, independent advice and recommendations on organizational management, curricula, methods of instruction, facilities and other matters of interest to the National Defense University.
The Board shall report to the Secretary of Defense through the Chairman of the Joint Chiefs of Staff and the President of the National Defense University. The Chairman of the Joint Chiefs of Staff may act upon the Board's advice and recommendations.
The Board shall be comprised of no more than twenty members, who are eminent authorities in the field of national defense, academia, business, national security affairs, and the defense industry. The Under Secretary of Defense for Personnel and Readiness, the Department of Defense Chief Information Officer, and the Department of State Director General shall serve as ex-officio members of the Board (these ex-officio members have voting rights). Board members shall be appointed by the Secretary of Defense, with annual renewals.
The Board Membership shall select the Board's Chairperson and the Co-Chairperson from the total Board membership, and these individuals shall serve at the discretion of the Secretary of Defense, through the Chairman of the Joint Chiefs of Staff.
The Chairman of the Joint Chiefs of Staff may invite other distinguished Government officers to serve as non-voting observers of the Board, and appoint consultants, with special expertise, to assist the Board on an ad hoc basis. If approved by the Secretary of Defense, these experts and consultants, appointed under the authority of 5 U.S.C. 3109, shall have no voting rights on the Board or its subcommittees, shall not count toward the Board's total membership, and shall not engage in Board deliberations.
Board members appointed by the Secretary of Defense, who are not full-time or permanent part-time Federal 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.
The Secretary of Defense may approve the appointment of Board members for one to four year terms of service; however, no member, unless authorized by the Secretary of Defense, may serve more than two consecutive terms of service. This same term of service limitation also applies to any DoD authorized subcommittees.
Regardless of the individual's approved term of service, all appointments to the Board shall be renewed on an annual basis. In addition, they shall serve without compensation, except for travel and per diem for official Board-related travel.
Each Board member is appointed to provide advice on behalf of the government on the basis of his or her best judgment without representing any particular point of view and in a manner that is free from conflict of interest.
The Department, when necessary, and consistent with the Board's mission and DoD policies and procedures may, establish subcommittees, task groups, or working groups deemed necessary to support the Board. Establishment of subcommittees will be based upon a written determination, to include terms of reference, by the Secretary of Defense, the Deputy Secretary of Defense, or the advisory committee's sponsor.
These subcommittees shall not work independently of the chartered Board, and shall report all of 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 subcommittees or any of its members update or report directly to the Department of Defense or any Federal officers or employees.
Such 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 one to four years; however, no member shall serve more than two consecutive terms of service on the subcommittee. Subcommittee members, if not full-time or permanent part-time government employees, shall be appointed in the same manner as the Board members. Such individuals, shall be appointed to serve as experts and consultants under the authority of 5 U.S.C. 3109, and serve as special government employees, whose appointments must be renewed by the Secretary of Defense on an annual basis. With the exception of travel and per diem for official travel, subcommittee members shall serve without compensation.
All subcommittees operate under the provisions of FACA, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), governing Federal statutes and regulations, and governing DoD policies/procedures.
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, in consultation with the President of the National Defense University and the Board's Chairperson. The estimated number of Board meetings is two per year.
The Board's 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 Board's Designated Federal Officer, an Alternate Designated Federal Officer, duly appointed to the Board according to DoD policies and procedures, shall attend the entire duration of the Board or subcommittee meetings.
The Designated Federal Officer, or the Alternate Designated Federal Officer, shall call all of the Board's and subcommittee's meetings; prepare and approve all meeting agendas; and adjourn any meeting, when the Designated Federal Officer or Alternate Designated Federal Officer, determines adjournment to be in the public's interest or required by governing regulations or DoD policies/procedures; and chair meetings when directed to do so by the official to whom the Board reports.
Pursuant to 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written statements to Board of Visitors, National Defense University'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 the Board of Visitors, National Defense University.
All written statements shall be submitted to the Designated Federal Officer for the Board of Visitors, National Defense University, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Board of Visitors, National Defense University 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 Board of Visitors, National Defense University. 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.
DoD.
Renewal of Federal Advisory Committee.
Under the provisions of 20 U.S.C. 929, 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 102-3.50(a), the Department of Defense gives notice that it is renewing the charter for the Advisory Council on Dependents' Education (hereafter referred to as “the Council”). The Council shall provide independent advice and recommendations on the Department of Defense (DoD) dependents' education system.
The Council is a non-discretionary federal advisory committee that shall provide independent advice and recommendations to the Director, Department of Defense Education Activity on the following:
a. General policies for operation of the DoD dependents' education system with respect to curriculum selection, administration, and operation of the system;
b. Information from other federal agencies concerned with Primary and secondary education with respect to education programs and practices which such agencies have found to be effective and which should be considered for inclusion in the DoD dependents' education system;
c. The design of the study and the selection of the contractor referred to in 20 U.S.C. § 930(a)(2); and
d. Other tasks as may be required by the Secretary of Defense.
The Council shall report to the Director, Department of Defense Education Activity. Matters outside the legal purview of the Director, Department of Defense Education Activity shall be referred to Secretary of Defense and the Under Secretary of Defense for Personnel and Readiness as appropriate. The Director, Department of Defense Education Activity may act upon the Council's advice and recommendations.
The Council, pursuant to 20 U.S.C. 929(a), shall be comprised of no more than 16 members who have demonstrated an interest in the field of primary or secondary education and the following individuals:
a. The Secretary of Defense and the Secretary of Education or their respective designees;
b. Twelve appointed individuals who demonstrated an interest in the field of primary or secondary education, and who shall include representatives of professional employee organization, school administrators, parents of students enrolled in the DoD dependents' education system, and one student enrolled in such system; and
c. A representative of the Secretary of Defense and of the Secretary of Education.
The twelve Council members appointed under the authority of 20 U.S.C. 929(a)(1)(B), shall be appointed jointly by the Secretary of Defense and the Secretary of Education.
The Secretary of Defense and the Secretary of Education may approve the appointment of individuals appointed pursuant to 20 U.S.C. 929(a)(1)(B) for one to four year terms of service; however, no member appointed pursuant to 20 U.S.C. 929(a)(1)(B), unless authorized by the Secretary of Defense and the Secretary of Education, may serve more than two consecutive terms of service. This same term of service limitation also applies to any DoD authorized subcommittees.
Members appointed to the Council from professional employee organizations, pursuant to 20 U.S.C. 929(a)(2), shall be individuals designated by those organizations and shall serve three year terms of service, not to exceed two full terms on the Council.
Any member appointed to fill a vacancy occurring before the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term.
Council members, who are not full-time or permanent part-time federal officers or employees, shall be appointed to serve as experts and consultants under the authority of 5 U.S.C. 3109 and shall serve as special government employee members. Council members serving as special government employees shall have their appointments renewed on an annual basis.
Pursuant to 20 U.S.C. 929(d), members of the Council who are not full-time or permanent part-time employees of the federal government,
The Secretary of Defense and the Secretary of Education, or their designated representatives, shall serve as the Council's Co-Chairs.
The Director, Department of Defense Education Activity shall be the Executive Secretary of the Council, but shall not vote on matters before the Council.
Each Council member is appointed to provide advice on behalf of the government on the basis of his or her best judgment without representing any particular point of view and in a manner that is free from conflict of interest.
The Department, when necessary, and consistent with the Council's mission and DoD policies and procedures, may establish subcommittees deemed necessary to support the Council. Establishment of subcommittees will be based upon a written determination, to include terms of reference, by the Secretary of Defense, the Deputy Secretary of Defense or the advisory council's sponsor.
Such subcommittees shall not work independently of the chartered Council, and shall report all their recommendations and advice to the Council for full deliberation and discussion. Subcommittees have no authority to make decisions on behalf of the chartered Council; nor can any subcommittee or its members update or report directly to the DoD or any Federal officers or employees. Subcommittees shall comply with FACA.
All subcommittee members shall be appointed in the same manner as the Council members; that is, the Secretary of Defense shall appoint subcommittee members even if the member in question is already a Council member. Subcommittee members, with the approval of the Secretary of Defense, may serve a term of service on the subcommittee of one to four 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 shall serve as special government employees, whose appointments must be renewed by the Secretary of Defense on an annual basis.
Subcommittee members who are not full-time or permanent part-time employees of the federal government, shall while attending meetings or conferences of the Council or otherwise engaged in the business of the Council, be entitled to compensation at the daily equivalent of the rate specified at the time of such service for level IV of the Executive Services under 5 U.S.C. 5315. All subcommittee members, while on official travel, shall be entitled to compensation for travel and per diem.
All subcommittees operate under the provisions of FACA, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), governing Federal statutes and regulations, and governing DoD policies/procedures.
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
The Council shall meet at the call of the Council's Designated Federal Officer, in consultation with the Council's Co-Chairs. Pursuant to 20 U.S.C. 929(c), the Council shall meet at least two times each year.
In addition, the Designated Federal Officer is required to be in attendance at all Council and subcommittee meetings for the entire duration of each and every meeting; however, in the absence of the Designated Federal Officer, a properly approved Alternate Designated Federal Officer shall attend the entire duration of the Council or subcommittee meeting.
The Designated Federal Officer, or the Alternate Designated Federal Officer, shall call all of the Council's and subcommittees' meetings; prepare and approve all meeting agendas; adjourn any meeting when the Designated Federal Officer, or the Alternate Designated Federal Officer, determines adjournment to be in the public interest or required by governing regulations or DoD policies/procedures; and chair meetings when directed to do so by the official to whom the Council reports.
Pursuant to 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written statements to Advisory Council on Dependents' Education membership about the Council's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of Advisory Council on Dependents' Education.
All written statements shall be submitted to the Designated Federal Officer for the Advisory Council on Dependents' Education, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Advisory Council on Dependents' Education 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 Advisory Council on Dependents' Education. 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.
U.S. Department of Energy.
Submission for Office of Management and Budget (OMB) review; comment request.
The Department of Energy (DOE) has submitted an information collection request to OMB for extension under the provisions of the Paperwork Reduction Act of 1995. The information collection requests a three-year extension of its Security, OMB Control Number 1910-1800. The proposed collection will cover information necessary for DOE management to exercise management oversight and control over their contractors (1) for collection of Foreign Ownership, Control or Influence data from bidders on DOE contracts requiring personnel security clearances; and (2) for individuals who are either in the process of applying for a security clearance/access authorization or who already hold one.
Comments regarding this collection must be received on or before May 21, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within that period of time allowed by this notice, please advise the OMB Desk Officer of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at 202-395-4650.
Written comments may be sent to the: DOE Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street NW., Washington, DC 20503 and to Felecia A. Briggs, HS-83/C-412 Germantown Building, U.S. Department of Energy, 1000 Independence Ave SW., Washington, DC 20585-1290 or by fax at 301-903-5492, by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed at the addressees listed above in
This information collection request contains: (1)
Section 641 of the Department of Energy Organization Act, codified at 42 U.S.C. 7251, and the following additional authorities:
DOE F 5631.34, Data Report on Spouse/Cohabitant: Section 145(b) of the Atomic Energy Act of 1954, as amended, codified at 42 U.S.C. 2165; Executive Order 12968 (August 2, 1995); Executive Order 10865 (February 20, 1960); Executive Order 10450 (April 27, 1953); DOE O 472.2 (July 21, 2011).
Security Incident Notification Report and Report of Preliminary Security Incident/Infraction (DOE F 471.1 and DOE F 5639.3): Executive Order 13526 (December 29, 2009); 32 C.F.R. Part 2001; DOE O 470.4B (July 21, 2011).
DOE F 5631.20, Request for Visitor Access Approval: Section 145(b) of the Atomic Energy Act of 1954, as amended, codified at 42 U.S.C. 2165.
DOE Form 5631.18, Security Acknowledgement: Section 145(b) of the Atomic Energy Act of 1954, as amended, codified at 42 U.S.C. 2165; Executive Order 13526 (December 29, 2009); Executive Order 10865 (Feb. 20, 1960); Executive Order 10450 (April 27, 1953); DOE O 5631.2C (February 17, 1994).
DOE Form 5631.29, Security Termination Statement: Section 145(b) of the Atomic Energy Act of 1954, as amended, codified at 42 U.S.C. 2165; Executive Order 13526 (December 29, 2009); Executive Order 10865 (Feb. 20, 1960); Executive Order 10450 (Apr. 27, 1953); 32 C.F.R. Part 2001; DOE O 472.2 (July 21, 2011).
DOE Form 5631.5, The Conduct of Personnel Security Interviews: 10 C.F.R. Part 710; Executive Order 12968 (Aug. 2, 1995); Executive Order 10450 (April 27, 1953); DOE Order 472.2 (July 21, 2011).
Electronic Foreign Ownership, Control or Influence (e-FOCI) System: Executive Order 12829 (January 6, 1993); DOE O 470.4B (July 21, 2011).
Foreign Access Central Tracking System (FACTS): Presidential Decision Directive 61 (February 1999); DOE O 142.3A (October 14, 2010).
Department of Energy.
Notice of Open Meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge Reservation. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, May 9, 2012, 6 p.m.
Department of Energy Information Center, 1 Science.gov Way, Oak Ridge, Tennessee 37830.
Melyssa P. Noe, Federal Coordinator, Department of Energy Oak Ridge Operations Office, P.O. Box 2001, EM-90, Oak Ridge, TN 37831. Phone (865) 241-3315; Fax (865) 576-0956 or email:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, and protests, is 30 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-2758-010 & P-2770-009) on any comments, motions, or protests filed.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, and protests, is 30 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 number (P-2772-011) on any comments, motions, or protests filed.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that on April 4, 2012, Tennessee Gas Pipeline Company, L.L.C. (Tennessee), 1001 Louisiana Street, Houston, Texas 77002, filed an application in the above referenced docket pursuant to section 7(b) of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations requesting authorization to abandon in place and by removal its Line No. 524J-200, an inactive lateral pipeline located in La Fourche Parish, Louisiana. Tennessee states that the facilities proposed to be abandoned include approximately 9.8 miles of 24-inch diameter pipeline and appurtenances. Tennessee also proposes to remove and modify piping and equipment at the northern and southern termini of the lateral, 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 Thomas G. Joyce, Manager, Certificates, Tennessee Gas Pipeline Company, L.L.C., 1001 Louisiana Street, Houston, Texas 77002, by telephone at (713) 420-3299, by facsimile at (713) 420-1473, or by email at
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 to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and
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.
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 Commission received the following electric rate 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 has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric 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 on April 5, 2012, Duke Energy Ohio, Inc. and Duke Energy Kentucky, Inc., tendered for filing a Settlement Agreement on behalf of themselves and the Indiana Municipal Power Agency, pursuant to 18 CFR 385.602, in the above-docketed proceeding. Pursuant to 18 CFR 385.602(f)(2) initial comments on the settlement agreement should be filed on or before April 18, 2012. Reply comments are due on or before April 20, 2012.
Take notice that on April 4, 2012, Buckeye Power, Inc. submitted its tariff filing per 35.28(e): 2012 TRBAA Update Filing, to be effective 6/1/2012.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Ironwood Windpower, 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 May 2, 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
This is a supplemental notice in the above-referenced proceeding of Conch Energy Trading, 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 May 2, 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
This is a supplemental notice in the above-referenced proceeding of Energia Sierra Juarez U.S., 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 May 2, 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
This is a supplemental notice in the above-referenced proceeding of Cimarron Windpower II, 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
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
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j. The City of Watervliet filed its request to use the Traditional Licensing Process on February 27, 2012. The City of Watervliet provided public notice of its request on February 29, 2012. In a letter dated April 12, 2012, the Director of the Division of Hydropower Licensing approved the City of Watervliet's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with: (a) The U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; (b) NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920; and (c) the New York State Historic Preservation Officer, as required by section 106, National Historical Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. The City of Watervliet filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
m. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
n. Register online at
On March 1, 2012, the City of New York filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the West of Hudson Hydroelectric Project, which comprises two development sites, Pepacton located on the East Branch of the Delaware River and Neversink located on the Neversink River. The Pepacton Development would be located in Delaware County, New York, and the Neversink Development would be located in Sullivan County, New York.
The proposed West of Hudson Hydroelectric Project would consist of the following developments:
(1) An existing 2,450-foot-long, 204-foot-high earthen Downsville Dam; (2) an existing reservoir having a surface area of 5,560 acres and a storage capacity of 441,000 acre-feet and normal water surface elevation of 1,280 feet mean sea level; (3) a proposed powerhouse containing one new generating unit having an installed capacity of 1.7-megawatts; (4) a proposed 80-foot-long, 12.5-kilovolt transmission line; and (5) appurtenant facilities. The proposed Pepacton Development would have an average annual generation of 9.235-gigawatt-hours.
(1) An existing 2,800-foot-long, 195-foot-high earthen Neversink Dam; (2) an existing reservoir having a surface area of 1,478 acres and a storage capacity of 112,000 acre-feet and normal water surface elevation of 1,440 feet mean sea level; (3) a proposed powerhouse containing one new generating unit having an installed capacity of 0.9-megawatt; (4) a proposed 760-foot-long, 12.5-kilovolt transmission line; and (5) appurtenant facilities. The proposed Neversink Development would have an average annual generation of 5.457-gigawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before June 18, 2012.
Submit your comments, identified by Docket ID No. EPA-HQ-OECA-2012-0157 by one of the following methods:
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David E. Alexander, Air Enforcement Division, Office of Enforcement and Compliance Assurance (2242A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2109; fax number: (202) 564-0069; email address:
EPA has established a public docket for this ICR under Docket ID No. EPA- HQ-OECA-2012-0157 which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information,
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under DATES.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
Abstract: Section 203(a)(3) of the Clean Air Act (Act) prohibits removing or rendering inoperative automobile emission control devices or elements of design. If the EPA had not adopted the aftermarket catalytic converter enforcement policy (51 FR 28114-28119, 28133 (Aug. 5, 1986); 52 FR 42144 (Nov. 3, 1987)), the manufacture, sale or installation of aftermarket catalytic converters (catalysts) not equivalent to new original equipment (OE) catalysts would constitute a violation of the Act. However, because replacement OE catalysts are expensive, many consumers had elected to not replace catalysts that malfunctioned subsequent to the expiration of the emissions warranty on their vehicles. The Agency believes that allowing the installation of aftermarket catalysts on older vehicles can be environmentally beneficial if the Agency can be assured that the aftermarket catalysts meet certain standards and if installers are accountable to select the proper aftermarket catalyst for each vehicle application. Manufacturers of new aftermarket catalysts are required, on a one-time basis, for each catalyst line manufactured, to identify the catalyst physical specifications and summarize pre-production testing of the prototype.
The original policy required that, once production had begun, the manufacturer would submit to EPA on a semi-annual basis the number of each type of aftermarket catalyst manufactured and a summary of information contained on warranty cards or, at the option of the respondent, copies of warranty cards for all converters sold. This reporting regarding sales and warranty information was eliminated in March 1999, with the stipulation that records must be maintained and the information submitted to EPA upon request.
On a one-time basis, companies that recondition used catalysts (catalyst reconditioners) must report the identity of the company and a description of the test bench used for testing used catalytic converters and the intended vehicle application(s) for each converter type. All used converters must be tested individually to ensure they are still functional. Additionally, the original policy required catalyst reconditioners to report on a semi-annual basis the names and addresses of distributors along with the number of each type of converter sold to each distributor. This reporting requirement was eliminated in March 1999, with the stipulation that records must be maintained and the information submitted to EPA upon request.
Companies that install aftermarket catalysts have no reporting requirements, but they must keep copies of installation invoices and records that show the reason an aftermarket catalyst installation was appropriate for six months. Removed catalysts must be tagged with identifying information and be kept for 15 days.
EPA allows the use of pre-printed documents or computer-generated documents. All the recordkeeping under the policy is authorized by section 114 of the Act, 42 U.S.C. 7414 and section 208 of the Act, 42 U.S.C. 7542. Parties who comply with these policies are allowed to install aftermarket catalysts instead of OE catalysts. Confidentiality provisions are found at 40 CFR part 2. These requirements have been in effect for over ten years. Startup costs have been completed. The proposed ICR utilizes assumptions that are the same as the previous ICR. 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 OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
Estimated total number of potential respondents: 30,014.
Frequency of response: Annual.
Estimated total average number of responses for each respondent: 1.
Estimated total annual burden hours: 212,101 hours.
Estimated total annual costs: $676,000. This includes an estimated burden cost of $390,000 and an estimated cost of $286,000 for capital investment or maintenance and operational costs.
There is anticipated to be no change in the hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. EPA anticipates adjusting for inflation the estimated costs of labor and capital used in the supporting statement prepared in 2008. The 2008 supporting statement may be reviewed in the docket.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice—Receipt of petition.
Notice is hereby given that a petition has been received from the Commonwealth of Massachusetts requesting a determination by the Regional Administrator, U. S. Environmental Protection Agency, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Mount Hope Bay.
“Comments must be submitted by May 21, 2012.”
Submit your comments, identified by Docket ID No. EPA-R01-OW-2012-0200, by one of the following methods:
•
•
Ann Rodney, U.S. Environmental Protection Agency—New England Region, Five Post Office Square, Suite 100, OEP06-01, Boston, MA 02109-3912. Telephone: (617) 918-1538, Fax number: (617) 918-0538; email address:
Notice is hereby given that a petition has been received from the Commonwealth of Massachusetts requesting a determination by the Regional Administrator, U.S. Environmental Protection Agency, pursuant to Section 312(f)(3) of Public Law 92-500 as amended by Public Law 95-217 and Public Law 100-4, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for Mount Hope Bay.
There are marinas, yacht clubs and public landings/piers in the proposed area with a combination of mooring fields and dock space for the recreational and commercial vessels. Mount Hope Bay is a shared waterbody between Massachusetts and Rhode Island and in 1998 Rhode Island designated all its state waters as no discharge, including its portion of Mount Hope Bay. Massachusetts has certified that there are three pumpout facilities, within the proposed state waters, available to the boating public. A list of the facilities, locations, contact information, hours of operation, and water depth is provided at the end of this petition.
Massachusetts has provided documentation indicating that the total vessel population is estimated to be 585 in the proposed area. It is estimated that 523 of the total vessel population may have a Marine Sanitation Device (MSD) of some type. The total number of MSDs certified by the Commonwealth of Massachusetts is an overestimate, conservatively, giving the boating public a 1:175 ratio of pumpouts to boats, which is much less than the ratio suggested by EPA Region 1 guidelines (300-600 vessels for every one facility.)
Environmental Protection Agency (EPA).
Notice.
Since January 2001, the State of Maine has been authorized to administer the National Pollutant Discharge Elimination System (NPDES) program in the Indian territories of the Penobscot Nation and the Passamaquoddy Tribe, with the exception of authorization to issue permits to two tribally owned and operated wastewater treatment works. On August 8, 2007, the U.S. Court of Appeals for the First Circuit vacated EPA's October 31, 2003 decision to withhold authority to administer the program under the Clean Water Act with respect to the two tribally owned and operated treatment works. EPA is responding to the court's order by approving Maine's NPDES program to include the permitting of all discharges within the Indian territories of the Penobscot Nation and the Passamaquoddy Tribe.
March 26, 2012.
Questions or requests for additional information may be submitted to:
• Mail: Glenda Vélez, USEPA-Region 1, 5 Post Office Square—OEP06-01, Boston, MA 02109-3912.
• Telephone: (617) 918-1677.
• Email:
• No facsimiles (faxes) will be accepted.
On December 17, 1999, EPA determined that the State of Maine had submitted a complete application to administer the NPDES permitting program in the state under the Clean Water Act (CWA). 33 U.S.C. 1251,
On January 12, 2001, EPA approved the State of Maine's application to administer the NPDES program for all areas of the state other than Indian country. At that point EPA did not take any action on Maine's application to administer the program within the territories of the federally-recognized Indian tribes in Maine. EPA published notice of its action on February 28, 2001. 66 FR 12791. As described in the
On October 31, 2003, EPA approved the State of Maine's application to administer the NPDES program in the Indian territories of the Penobscot Indian Nation and the Passamaquoddy Tribe, with the exception of any discharges that qualified as “internal tribal matters” under MICSA and MIA. 68 FR 65052 (Nov. 18, 2003). This action generally authorized the state to administer the NPDES program in the territories of the two largest Indian tribes in the state, finding that the combination of MICSA and MIA created a unique jurisdictional arrangement that granted the state authority to issue permits to dischargers. EPA did not approve the state's program to regulate two small tribally-owned and operated POTWs. EPA determined that these POTWs qualified as internal tribal matters and, therefore, fell within an enumerated exception to the grant of jurisdiction to the state in MICSA and MIA. EPA did not take action on the state's application as it applied to the territories of the two smaller federally-recognized tribes in the state, the Houlton Band of Maliseet Indians and the Aroostook Band of Micmac Indians. These two tribes are subject to jurisdictional provisions separate from those that apply to the Penobscot and Passamaquoddy tribes. EPA's 2003 action addressed all the Indian territories that included existing point source dischargers covered by the NPDES program.
Several parties petitioned for judicial review of EPA's 2003 decision partially approving Maine's NPDES program in the Penobscot and Passamaquoddy Indian territories. The Penobscot Nation and Passamaquoddy Tribe challenged EPA's decision to generally approve the state to administer the program in their territories. The State of Maine and a coalition of public and private NPDES permit holders challenged EPA's decision to disapprove the state's program as to the two small tribal POTWs based on the finding that permitting those discharges qualified as an internal tribal matter.
On August 8, 2007, the U.S. Court of Appeals for the First Circuit issued its opinion in
EPA proposed to implement the court's order by modifying its approval of Maine's NPDES program to authorize the State to issue NPDES permits for all discharges within the Indian territories of the Penobscot Nation and Passamaquoddy Tribe. 76 FR 29747 (May 23, 2011). Additionally, the notice stated that EPA does not plan to undertake a case-by-case analysis of any new discharges to determine whether they qualify as internal tribal matters under MICSA and MIA. EPA received no public comments on the record in response to the May 23, 2011 proposal. As a result, the state will assume responsibility from EPA for issuing and administering the permits for the Penobscot Nation Indian Island treatment works (EPA NPDES Permit No. ME 0101311 and MEPDES License No. 2672) and the Passamaquoddy Tribal Council treatment works (EPA NPDES Permit No. 1011773 and MEPDES License No. 2561). Neither tribe has applied to EPA to implement the NPDES permit program, so this action does not address the question of either tribe's authority to implement the program.
The finalization of this action does not modify the types of activities covered by Maine's base program as EPA approved it in 2001. Thus, the state's program does not include regulation of cooling water intake structures under CWA section 316(b). Nor is EPA taking action on Maine's application to implement the NPDES permit program in the territories of the Houlton Band of Maliseet Indians and the Aroostook Band of Micmac Indians.
This action is taken under the authority of Section 402 of the Clean Water Act as amended, 42 U.S.C. 1342.
Federal Election Commission.
999 E Street NW., Washington, DC.
This meeting will be closed to the public.
Judith Ingram, Press Officer. Telephone: (202) 694-1220.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 14, 2012.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President), 1000 Peachtree Street NE., Atlanta, Georgia 30309:
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 4, 2012.
A. Federal Reserve Bank of San Francisco (Kenneth Binning, Vice President, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
1.
Data to assess impacts of the program models in preschool was collected through surveys with teachers and parents, as well as direct child assessments. Data to assess implementation of the program models in preschool was collected through surveys and interviews with teachers, local coaches, trainers and center staff. Data collection for both the impact and implementation studies occurred during the Head Start Year. The study sample involved 17 Head Start grantees/delegate agencies, 104 centers, 307 classrooms, 1,042 selected 3-year-old children and 2,885 selected 4-year-old children.
The purpose of this request is to obtain an extension to finish impact data collection in the 2012 Follow-up Year (e.g., Kindergarten for the 4-year-olds). This data to assess impacts of the program models in the kindergarten year will be collected through teacher reports (surveys) and parent surveys.
The annual burden estimates for both surveys covered by the extension are detailed below.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: OPRE Reports Clearance Officer. All requests should be identified by the title of the information collection. Email address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by June 18, 2012.
Submit electronic comments on the collection of information to
Daniel Gittleson, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-5156,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (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, when appropriate, and other forms of information technology.
A recent study of obesity indicates that 35.5 percent of men and 35.8 percent of women in America reported being obese in 2010. This represents an increase from 27.5 percent and 33.4 percent in 2000 for men and women, respectively (Ref. 1). People who are obese are more likely to suffer from diabetes, cardiovascular disease, respiratory and metabolic disease, and sleep apnea, as well as other physical and psychological disabilities. By some estimates, as much as $140 billion were spent in 2008 to treat obesity-related diseases (Ref. 2). Studies have shown that weight loss can significantly reduce the burden of obesity-related comorbidities (Refs. 3 and 4), and that weight lost as a result of laparoscopic banding or other weight-loss surgeries positively impacts quality of life and burden of disease (Refs. 5 through 7). However, like any surgical procedure, these surgeries are associated with substantial risks, including risks of potentially life-threatening events (Ref. 6), that patients and physicians must weigh against any potential benefits when making an informed treatment decision.
With the assistance of advisory panels, FDA determines the acceptable risk threshold of a medical intervention against its effectiveness as demonstrated in clinical evidence. In addition, individual patients and patient-advocacy groups anecdotally express their opinions about their needs and tolerance for risks to FDA through letters and public testimonies during advisory panel meetings. To evaluate the scientific validity of systematically eliciting patient perspectives on outcomes associated with weight-loss devices, the Agency requests approval of a pilot survey to quantify obesity patients' benefit-risk preferences.
The choice-format preference-elicitation survey will ask obese individuals (with a body mass index of 30 kg/m
An invitation to the online survey will be sent to a sample of 1,000 obese adults in the United States. Among the adults who receive the invitation, about
Final results will provide an estimate of the maximum levels of various treatment-related risks that obesity patients would be willing to accept to achieve specific levels of weight loss or improvements in weight-related diseases. These results will be used to investigate the viability of choice-format surveys as a way to quantify patients' risk tolerance for the therapeutic benefits of weight-loss devices.
FDA estimates the burden of this collection of information as follows:
The following references are on display in the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing a meeting for patients, caregivers, independent patient advocates and patient advocate groups, and health professional groups to explore ways to more effectively include patient input in regulatory decisionmaking on drug, device, and biological products. The meeting will serve as a forum for FDA's patient stakeholders and the general public, including health professionals, academia, and industry to learn about the regulatory process related to the medical product life cycle, analyze where in the process patient input may be most practical and most valuable, and explore practicable approaches to collecting and incorporating meaningful input that well represents broad patient perspectives into regulatory decisions.
If you need special accommodations due to a disability, please contact Steve Morin at least 7 days in advance.
This is the inaugural FDA Patient Network Annual Meeting hosted by the FDA Office of Special Health Issues, the Agency's liaison to the patient and health professional communities. This annual meeting is being hosted in conjunction with the launch of the overarching FDA Patient Network program. The FDA Patient Network is a new resource for patients, caregivers, independent patient advocates, and patient advocate groups that seek to:
• Educate and inform patient stakeholders about FDA, its regulatory
• Provide a venue for advocacy for patient stakeholders within FDA and be transparent to patients about Agency actions.
In addition to an annual meeting, the FDA Patient Network consists of other activities, including the:
• FDA Patient Network Web site—A new, patient-centered Web site that contains educational modules, centralized Agency information, and multidirectional communication tools;
• Biweekly
Establishing a means for obtaining input from patients and patient advocate groups will allow FDA to further enhance its benefit-risk assessment in regulatory decisionmaking. Patients who live with a disease have a direct stake in the outcomes of the review process and are in a unique position to contribute to the weighing of benefit-risk considerations that can occur throughout the medical product development process. Though several programs exist that facilitate patient representation on Advisory Committees or participation in selected review meetings, there are currently few venues in which the patient perspective is discussed outside of a specific product's marketing application review. The medical product review process could benefit from a more scientific, systematic, and expansive approach to obtaining input from patients who are experiencing a particular disease condition.
As part of the proposed agreements for Prescription Drug User Fee Act (PDUFA) V, FDA plans to conduct meetings with patients and patient advocacy groups to gather broader patient input. This meeting kicks off these efforts and provides an opportunity to gain feedback on how FDA can best structure these upcoming meetings.
FDA seeks public discussion based on the following questions. These questions are intended to frame patient input at the May 18, 2012, meeting and there will be time at the meeting to discuss the following issues.
(1) How can FDA ensure gathering a broad range of representative patient input that is relevant to a specific disease area during its meetings with patients? For example, who should serve as representatives of patients?
(2) What methodological and practical issues should FDA consider as it develops its strategy for eliciting the patient perspective? For instance, FDA is interested in addressing topics including, but not limited to, the following:
(a) Are there particular advantages or disadvantages to utilizing face-to-face meetings versus web-based or other methods in obtaining the patient perspective on a particular disease condition and its treatment?
(b) How can FDA ensure that certain subpopulations, such as patients with the most severe form of the disease, are represented?
Center for Drug Evaluation and Research and Center for Biologics Evaluation and Research plan to conduct a series of patient-focused drug development meetings to gather patient input on the clinical context of a disease and its impact on a patient's daily life. These considerations, which would include an analysis of the severity of the disease condition and the current state of the available treatment options, can be critical in regulatory decisionmaking. FDA is interested in obtaining patient input on the context of specific disease areas through the patient-focused drug development meetings. The following questions are examples of topics for which FDA believes the patient perspective could add valuable insight. They are presented in this document for general discussion at the Patient Network Conference.
(1) What are the clinical manifestations of the disease that have the greatest impact on patients?
(2) Are there other aspects of the disease that have a significant impact on a patient's daily life? (e.g., impaired mobility, sleep problems, etc.)
(3) How do the clinical manifestations change with disease progression?
(4) How do the other aspects of the disease change with disease progression?
(1) How effective are approved therapies at treating the clinical manifestations of the disease?
(2) How well do approved therapies mitigate the other aspects of the disease?
(3) How does the effectiveness of approved therapies change with progression of the disease?
(4) Does therapy effectiveness vary by patient subpopulation?
FDA is continuing to make plans for its efforts and will be able to provide more detail on the patient-focused drug development meetings at the Patient Network Conference.
Center for Devices and Radiologic Health is interested in a public discussion on issues related to risk associated with medical products, and on avenues for patients to provide input into regulatory decisionmaking related to the amount of risk patients may be willing to accept in exchange for a potential treatment benefit. The following questions are presented in this document for general discussion at the Patient Network Conference.
(1) How do patients perceive and weigh risks associated with medical treatment in light of the risk associated with the underlying condition being treated and the potential benefit from the treatment?
(2) Under what circumstances and in which populations would various levels of risk be appropriate/acceptable?
(3) How can medical device companies, government, academia, community physicians and patients collaborate to account for the level of risk acceptable to patients affected by serious or life threatening illnesses?
(4) What mechanisms would be appropriate for patients to provide input into regulatory decisionmaking for new therapeutic and diagnostic products—e.g., web-based survey instruments? Patient representation at advisory committee meetings? Patient input to medical device companies during clinical trial design? Who (FDA, patient advocate groups, medical device companies, etc.) could sponsor such surveys?
(5) Are patients willing to accept responsibility for the level of risk to which they may be exposed if patient input increases risk tolerance?
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
The meetings will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed belowin advance of the meeting.
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 patentablematerial, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
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 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.),notice is hereby given of a meeting of the National Advisory Dental and Craniofacial ResearchCouncil.
The meeting will be open to the public as indicated below, with attendance limited to spaceavailable. Individuals who plan to attend and need special assistance, such as sign languageinterpretation or other reasonable accommodations, should notify the Contact Person listed belowin advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contractproposals and the discussions could disclose confidential trade secrets or commercial propertysuch as patentable material, and personal information concerning individuals associated with thegrant applications and/or contract proposals, the disclosure of which would constitute a clearlyunwarranted 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 meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Deafness and Other Communication Disorders Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the 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
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit. 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 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.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Country of Origin Marking Requirements for Containers or Holders. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This information collection was previously published in the
Written comments should be received on or before May 21, 2012.
Interested persons are invited to submit written comments on this information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for U.S. Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L. 104-13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This submission is to request a reinstatement with revisions of an expired information collection for the reporting burden associated with registration requirements that Continuum of Care Homeless Assistance (CoC) program lead agencies will be expected to complete. This submission is limited to the reporting burden under the CoC program, formerly including the Supportive Housing Program, the Shelter Plus Care program, and the Section 8 and Single Room Occupancy Program, and changed to match the new inclusive program name created through the HEARTH Act.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2506-0182) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
This submission is to request a reinstatement with revisions of an expired information collection for the reporting burden associated with registration requirements that Continuum of Care Homeless Assistance (CoC) program lead agencies will be expected to complete. This submission is limited to the reporting burden under the CoC program, formerly including the Supportive Housing Program, the Shelter Plus Care program, and the Section 8 and Single Room Occupancy Program, and changed to match the new inclusive program name created through the HEARTH Act.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice of proposed information collection.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number(2577-0216) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax:202-395-5806, Email:
Colette Pollard., Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4178, Washington, DC 20410-5000; telephone 202.402.3400 (this is not a toll-free number) or email Colette Pollard at
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW., (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone (202) 402-4109, (this is not a toll-free number).
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether theproposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.This Notice also lists the following information:
The MTW Demonstration was authorized under Section 204 of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (Pub. L. 104-134, 110 Stat 1321), dated April 26, 1996. The MTW Demonstration initially permitted up to 30 PHAs to participate in the demonstration program. Nineteen PHAs were selected for participation in the MTW demonstration in response to a HUD Notice published in the
Revisions are being made to the 50900 form to streamline the Plan and Report submission process to increase the accuracy of data collection for the demonstration. Further, the form has been revised so that the respondents are not asked to provide duplicated information to the Department.
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Announcement of funding awards.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement
For questions concerning the Safety and Security awards, contact Jeffrey Riddel, Director, Office of Capital Improvements, Office of Public Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4130, Washington, DC 20410, telephone (202) 708-1640. Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
The Capital Fund Safety and Security program provides grants to PHAs for physical safety and security measures necessary to address emergency increases in crime and drug-related activity. More specifically, in accordance with Section 9 of the United States Housing Act of 1937 (42 U.S.C. 1437g) (1937 Act), and the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Pub. L. 112-10, approved April 15, 2011) (FY 2011 appropriations), Congress appropriated funding to provide assistance to “public housing agencies for emergency capital needs including safety and security measures necessary to address crime and drug-related activity as well as needs resulting from unforeseen or unpreventable emergencies and natural disasters excluding Presidentially declared disasters occurring in fiscal year [2011].”
The FY 2011 awards in this Announcement were evaluated for funding based on the criteria in the Notice. These awards are funded from the set-aside in the FY 2011 appropriations.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat.1987, 42 U.S.C. 3545), the Department is publishing the names, addresses, and amounts of the 37 awards made under the competition in Appendix A to this document.
Office of the Secretary, National Invasive Species Council.
Request for Nominations for the Invasive Species Advisory Committee.
The U.S. Department of the Interior, on behalf of the interdepartmental National Invasive Species Council, proposes to appoint new members to the Invasive Species Advisory Committee (ISAC). The Secretary of the Interior, acting as administrative lead, is requesting nominations for qualified persons to serve as members of the ISAC.
Nominations must be postmarked by June 18, 2012.
Nominations should be sent to Lori Williams, Executive Director, National Invasive Species Council (OS/NISC), Regular Mail: 1849 C Street NW., (MS 1201 EYE), Washington, DC 20240; Express Mail: 1201 Eye Street NW., 5th Floor, Washington, DC 20005.
Kelsey Brantley, Program Specialist and ISAC Coordinator, at (202) 513-7243, fax: (202) 371-1751, or by email at
The purpose and role of the ISAC are to provide advice to the National Invasive Species Council (NISC), as authorized by Executive Order 13112, on a broad array of issues including preventing the introduction of invasive species, providing for their control, and minimizing the economic, ecological, and human health impacts that invasive species cause. NISC is Co-chaired by the Secretaries of the Interior, Agriculture, and Commerce, and is charged with providing coordination, planning and leadership regarding invasive species issues. Pursuant to the Executive Order, NISC developed a 2008—2012 National Invasive Species Management Plan (Plan), which is available on the Web at
The role of ISAC is to maintain an intensive and regular dialogue regarding the aforementioned issues. ISAC provides advice in cooperation with stakeholders and communities of interests affected by invasive species. The ISAC usually meets up to twice per year.
After consultation with the other members of NISC, the Secretary of the Interior will actively solicit new nominees and appoint members to ISAC. Prospective members of ISAC should be knowledgeable in and represent communities of interests affected by invasive species such as: Agriculture; aquaculture; biofuel production; livestock grazing and production; landscaping, horticulture, and plant nurseries; pet industry; crop protection; marine fisheries; forest health and management; potable and irrigation water management; natural resource management and restoration; animal health protection; shipping, tourism, highways, and other transportation industries; international development and trade; public land access and management; lake, estuary,
Nominees should have experience work related to invasive species planning and coordination in areas such as: developing natural resource management plans; invasive species prevention, early detection and rapid response, control, restoration, and research; multiple jurisdictional planning; integrating science and the human dimension in order to create effective solutions to complex conservation issues; international negotiations; government relations; coordinating the work of diverse groups of stakeholders to resolve complex issues and conflicts; and complying with the National Environmental Policy Act and other Federal requirements for public involvement in major conservation plans. Members will be selected in order to achieve a balanced representation of viewpoints, areas of experience, subject matter expertise, and representation of communities of interests. Members' terms are limited to three (3) years from their appointment to ISAC. Following a term, an ISAC member may request to be considered for an additional term. No member may serve on the ISAC for more than two (2) consecutive terms.
Members of the ISAC and its subcommittees serve without pay. However, while away from their homes or regular places of business in the performance of services of the ISAC, members shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the government service, as authorized by section 5703 of Title 5, United States Code. Employees of the Federal Government are not eligible for nomination or appointment to ISAC.
The Obama Administration prohibits individuals who are currently federally registered lobbyists to serve on all FACA and non-FACA boards, committees or councils.
Nominations should be typed and must include each of the following:
1. A brief summary of no more than two (2) pages explaining the nominee's suitability to serve on the ISAC.
2. A resume or curriculum vitae.
3. A minimum of two (2) letters of reference.
All required documents must be compiled and submitted in one complete nomination package. This office will not assemble nomination packages from documentation sent piecemeal. Incomplete submissions (missing one or more of the items described above) will not be considered. Nominations must be postmarked no later than June 18, 2012, to Lori Williams, Executive Director, National Invasive Species Council (OS/NISC), Regular Mail: 1849 C Street NW., (MS 1201 EYE), Washington, DC 20240; Express Mail: 1201 Eye Street NW., 5th Floor, Washington, DC 20005.
The Secretary of the Interior, on behalf of the other members of NISC, is actively soliciting nominations of qualified minorities, women, persons with disabilities and members of low income populations to ensure that recommendations of the ISAC take into account the needs of the diverse groups served.
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.
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:
The plat, in nine sheets, representing the dependent resurvey and survey, in Township 23 North, Range 8 East, of the New Mexico Principal Meridian, accepted March 26, 2012, for Group 905 NM.
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.
Bureau of Land Management, Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Eastern Washington Resource Advisory Council (EWRAC) will meet as indicated below.
May 23, 2012
The meeting will be open to the public. It will begin at 10 a.m. and end at 4 p.m. Members of the public will have an opportunity to address the EWRAC at 10 a.m. The meeting will be held at Big Bend Community College, 7662 N.E. Chanute Street, Moses Lake, Washington, 98837-2950. Discussion will include the Bureau of Land Management's Eastern Washington and San Juan Resource Management Plan, and the U.S. Forest Service's Colville National Forest Plan Revision.
Robert St. Clair, BLM Spokane District, 1103 N. Fancher Rd., Spokane Valley, WA 99212, or call (509) 536-1200. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1 (800) 877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
Bureau of Land Management, Interior.
Notice of relocation.
This notice announces the relocation of the Bureau of Land Management's (BLM) Tucson Field Office (TFO) and the temporary closure of the office during the relocation.
Brian B. Bellew, Field Manager, BLM Tucson Field Office, 12661 East Broadway, Tucson, Arizona 85748, 520-258-7200. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
Effective April 13, 2012, the relocation begins, and the new office opens Monday, April 16, 2012.
The new BLM Tucson Field Office address will be 3201 East Universal Way, Tucson, Arizona 85756.
Effective at the close of business on April 12, 2012, the BLM TFO will close for the purpose of relocating. The Field Office provides access to and inspection of the official Public Records of the Federal government, and the serialized case files of active land, mineral, and grazing transactions for the TFO area. The office will reopen at its new address at 3201 East Universal Way, Tucson, Arizona 85756, at 8 a.m. on Monday, April 16, 2012. The BLM TFO telephone number will remain the same (520-258-7200). Directions to the new BLM TFO office: From I-10 and Valencia Road Exit #267, go west 2.1 miles, then turn left onto South Lisa Frank Avenue, and continue approximately 0.1 mile to East Universal Way, then turn right and proceed 0.1 mile to the new address.
National Park Service, Interior.
Announcement of boundary revision.
This notice announces the revision to the boundary of Valley Forge National Historical Park, pursuant to the authority specified below, to include adjacent and contiguous parcels of land in Montgomery County, Pennsylvania, totaling 0.73 of an acre. These parcels are depicted on Legislative Boundary Map Number 464/108056, entitled “Valley Forge National Historical Park Proposed Boundary Expansion, Montgomery County, Pennsylvania,” dated June 27, 2011. This map is on file and available for inspection at the following locations: National Park Service, Land Resources, Northeast Region, 200 Chestnut Street, Room 324, Philadelphia, PA 19106, and National Park Service, Department of the Interior, Washington, DC 20240.
The Act of July 4, 1976 (Pub. L. 94-337, 90 Stat. 796) provides that, after notifying the House Committee on Natural Resources and the Senate Committee on Energy and Natural Resources, the Secretary of the Interior may make minor revisions of the boundaries of the park when necessary by publication of a revised map or other boundary description in the
The effective date of this boundary revision is April 19, 2012.
Superintendent, Valley Forge National Historical Park, 1400 North Outer Line Drive, King Prussia, PA 19406, (610) 783-1037.
National Park Service, Interior.
Notice.
The Benton County Historical Society and Museum, in consultation with the appropriate Indian tribes, has determined that the cultural items meet the definition of objects of cultural patrimony and repatriation to the Indian tribe stated below may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural items may contact the Benton County Historical Society and Museum.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural items should contact the Benton County
Mary K. Gallagher, Benton County Historical Society and Museum, 1101 Main Street, P.O. Box 35, Philomath, OR 97370, telephone (541) 929-6230.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Benton County Historical Society and Museum, Philomath, OR, that meet the definition of objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
The 29 cultural items include: 1 basket mortar; 4 baskets; 1 acorn strainer; 1 gathering basket; 2 storage baskets; 10 trinket baskets; 1 basket lid; 2 basket bottles; 4 basketry cups and saucers; 1 basketry candlestick; 1 basketry table mat; and 1 basketry napkin ring. All of the items are from the Horner Museum which was established in 1925 on the campus of what is now Oregon State University in Corvallis, OR. In 2005, items from the Horner Museum were acquired by the Benton County Historical Society and Museum (BCHS) located in nearby Philomath, OR. At the time of the transfer, Oregon State University (OSU) was in the process of completing NAGPRA requirements for items from the Horner Museum. In the transfer agreement with OSU, the BCHS took physical custody all unclaimed NAGPRA items and is now responsible for NAGPRA claims for cultural items from the collection.
All of the above cultural items are from the collection of Mrs. James Edmond Barrett. According to notes found in the Horner Museum donor file, Mrs. Barrett was a schoolteacher in southwestern Oregon who collected these cultural items over a period of 60 years. In 1927, she loaned her collection to the Horner Museum at what was then Oregon Agricultural College (OAC) to honor her son and daughter-in-law who attended OAC. This loan was renewed in 1939 and again in 1947. In 1972, the collection was donated to the Horner Museum by Lois Barrett, the daughter-in-law of Mrs. James Edmond Barrett. According to the 1934 catalog cards, 28 of the cultural items are identified, but one item has no provenance indicated on the original catalog card. Karuk affiliation of the objects was substantiated for 23 of the items by Martha Matthewson who acted as a consultant for OSU during the inventory process. For five of the cultural items, Ms. Matthewson indicated possible Karuk affiliation, but also suggested Yurok, Yokuts or Hupa affiliation. For one item, a trinket basket, consultants suggested affiliation to the Klamath, Grand Ronde, Warm Springs, Santa Rosa Rancheria and Karuk tribes.
On July 13, 2011, representatives of the Karuk Tribe visited the BCHS to view unclaimed cultural items. On August 15, 2011, the BCHS received a claim from the Karuk Tribe for the repatriation of 29 cultural items. The BCHS has reviewed the claim and determined that cultural affiliation to the Karuk Tribe is clearly established for 28 of the cultural items. After a review of additional evidence, the BCHS has determined that cultural affiliation to the Karuk Tribe exists for all 29 cultural items and that these cultural items meet the definition of objects of cultural patrimony.
Officials of the BCSM have determined that:
• Pursuant to 25 U.S.C. 3001(3)(D), the 29 cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the objects of cultural patrimony and the Karuk Tribe (formerly Karuk Tribe of California).
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the objects of cultural patrimony should contact Mary K. Gallagher, Benton County Historical Society and Museum, 1101 Main Street, PO Box 35, Philomath, OR, 97370, telephone (541) 929-6230 before May 21, 2012. Repatriation of the objects of cultural patrimony to the Karuk Tribe may proceed after that date if no additional claimants come forward.
The Benton County Historical Society and Museum is responsible for notifying the Karuk Tribe that this notice has been published.
National Park Service, Interior.
Notice.
The Benton County Historical Society and Museum (BCHS), in consultation with the appropriate Indian tribes, has determined that the cultural items meet the definition of sacred objects and repatriation to the Indian tribe stated below may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural items may contact the Benton County Historical Society and Museum.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural items should contact the Benton County Historical Society and Museum at the address below by May 21, 2012.
Mary K. Gallagher, Benton County Historical Society and Museum, 1101 Main Street, P.O. Box 35, Philomath, OR 97370, telephone (541) 929-6230.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Benton County Historical Society and Museum, Philomath, OR, that meet the definition of sacred objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
The nine cultural items include: 1 basket hat; 1 drum; 1 wild celery root; 1 decorated wooden projectile point; 1 elk horn purse; 1 grass and bead hair wrap; 1 necklace of dentalia shells and small round black glass beads; 1 ceremonial bow; and 1 associated arrow. All of the items are from the Horner Museum, which was established in 1925 on the campus of what is now Oregon State University in Corvallis, OR. In 2005, items from the Horner Museum were acquired by the Benton County Historical Society and Museum (BCHS) located in nearby Philomath, OR. At the time of the transfer, Oregon State University (OSU) was in the process of completing NAGPRA requirements for items from the Horner Museum. In the transfer agreement with OSU, the BCHS took physical custody all unclaimed NAGPRA items and is now responsible for NAGPRA claims for cultural items from the collection.
Six of the cultural items (the hat, the drum, the wild celery root, the elk horn purse, the projectile point, and the hair wrap) are from the collection of Mrs. James Edmond Barrett. According to notes found in the Horner Museum donor file, Mrs. Barrett was a schoolteacher in southwestern Oregon who collected these cultural items over a period of 60 years. In 1927, she loaned her collection to the Horner Museum at what was then Oregon Agricultural College (OAC) to honor her son and daughter-in-law who attended OAC. This loan was renewed in 1939 and again 1947. In 1972, the collection was donated to the Horner Museum by Lois Barrett, the daughter-in-law of Mrs. James Edmond Barrett. According to the 1934 catalog cards, three items (the elk horn purse, the wild celery root and the projectile point) originated from Happy Camp, CA, and one item (the drum) was used in religious festivals held twice a year on the Klamath River. The other two items do not have catalog cards.
Two of the cultural items (the bow and the arrow) are from the Dr. J. L. Hill collection. The J. L. Hill collection was donated to OAC in 1924 and formed the nucleus of the Horner Museum which opened in 1925. Previously, the J. L. Hill collection was housed at the Hill Museum in Albany, OR. On September 30, 1924, the
One cultural item (the dentalia necklace) is from the collection of the Kennedy-Tartar family. This collection was donated to the Horner Museum in 1973. The original catalog card does not provide any information on the provenance of this item. Members of Kennedy-Tartar family had a connection to Siletz tribal members and donated items to the Horner Museum that clearly came from the Siletz. There are also many items in the Kennedy-Tartar collection from the Klamath tribes, much of which has been claimed. At least one piece of paper in the accession file has the word “Karuk” but there is no indication of what item is referenced.
On July 13, 2011, representatives of the Karuk Tribe visited the BCHS to view unclaimed cultural items. On August 15, 2011, the BCHS received a claim from the Karuk Tribe for the repatriation of nine cultural items. The BCHS reviewed the claim and determined that cultural affiliation to the Karuk Tribe is clearly established for six of the cultural items. On November 17, 2005, Smith River Rancheria withdrew a claim for one of the items (the basket hat) noting that after reviewing the item again they believed that in fact it was Karuk in origin. After a review of additional evidence presented by the Karuk Tribe, the BCHS has determined that cultural affiliation to the Karuk Tribe exists for all nine cultural items and that these cultural items are sacred objects that have religious significance in the practice of traditional ceremony.
Officials of the BCSM have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the nine cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred objects and the Karuk Tribe (formerly Karuk Tribe of California).
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the sacred objects should contact Mary K. Gallagher, Benton County Historical Society and Museum, 1101 Main Street, PO Box 35, Philomath, OR 97370, telephone (541) 929-6230 before May 21, 2012. Repatriation of the sacred objects to the Karuk Tribe may proceed after that date if no additional claimants come forward.
The Benton County Historical Society is responsible for notifying the Karuk Tribe that this notice has been published.
National Park Service, Interior.
Notice.
The Colorado College, in consultation with the appropriate Indian tribe, has determined that the cultural items meet the definition of unassociated funerary objects and repatriation to the Hopi Tribe of Arizona may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural items may contact The Colorado College.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural items should contact The Colorado College at the address below by May 21, 2012.
Jermyn Davis, Chief of Staff, President's Office, Colorado College, Armstrong Hall, Room 201, 14 E. Cache La Poudre, Colorado Springs, CO 80903, telephone (719) 389-6201.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of The Colorado College that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
The 11 unassociated funerary objects are one basket and 10 ceramic items. The ceramic items are four bowls; two pipes; one miniature jar; two ladles, one of which contains beans; and one pitcher. The vessel styles are brown-on-red zoomorphic; red-ware; Tsegi orange-ware; black-on-tan and red; buff-ware; and oxidized black or brown-on-buff. Between 1897 and 1898, human remains, associated and unassociated funerary objects, as well as other cultural items were removed from Canyon de Chelly, Apache County, AZ, under the auspices of the Lang Expedition of 1897-1898. Prior to 1900, General William Jackson Palmer acquired what became known as the Lang-Bixby Collection, which he subsequently transferred to The Colorado College. Beginning in the late 1960s, the Lang-Bixby Collection was transferred, along with other collections from The Colorado College Museum, through long-term loans to the Fine Arts Center (formerly known as the Taylor Museum and the Colorado Springs Fine Arts Center) and the Denver Museum of Nature & Science (formerly known as the Denver Museum of Natural History). In 1993, the Fine Arts Center included the unassociated funerary objects from the Lang-Bixby Collection in its NAGPRA summary.
The unassociated funerary objects are ancestral Puebloan based on type and style. The human remains and associated funerary objects from this collection were described in two Notices of Inventory Completion (NICs) published in the
Officials of The Colorado College have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 11 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Hopi Tribe of Arizona.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact Jermyn Davis, Chief of Staff, President's Office, Colorado College, Armstrong Hall, Room 201, 14 E. Cache La Poudre, Colorado Springs, CO 80903, telephone (719) 389-6201, before May 21, 2012. Repatriation of the unassociated funerary objects to the Hopi Tribe of Arizona may proceed after that date if no additional claimants come forward.
The Colorado College is responsible for notifying the Hopi Tribe of Arizona that this notice has been published.
National Park Service, Interior.
Notice.
The Museum of Indian Arts & Culture/Laboratory of Anthropology, Museum of New Mexico, in consultation with the appropriate Indian tribe, has determined that the cultural items meet the definition of unassociated funerary objects and repatriation to the Indian tribe stated below may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural items may contact the Museum of Indian Arts & Culture/Laboratory of Anthropology, Museum of New Mexico.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural items should contact the Museum of Indian Arts & Culture/Laboratory of Anthropology, Museum of New Mexico, at the address below by May 21, 2012.
Dr. Shelby Tisdale, Director, Museum of Indian Arts & Culture, Museum of New Mexico, P.O. Box 2087, Santa Fe, NM 87504, telephone (505) 476-1251.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Museum of Indian Arts & Culture/Laboratory of Anthropology, Museum of New Mexico, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in