Agricultural Marketing Service
Food Safety and Inspection Service
Economic Development Administration
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Navy Department
Pipeline and Hazardous Materials Safety Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
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National Institutes of Health
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Coast Guard
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Office of the Special Counsel
Federal Aviation Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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U.S. Office of Personnel Management.
Interim rule with request for comments.
The U.S. Office of Personnel Management is issuing an interim rule to abolish the Montgomery, Pennsylvania, nonappropriated fund (NAF) Federal Wage System (FWS) wage area and redefine Chester, Montgomery, and Philadelphia Counties, PA, to the Burlington, NJ, NAF wage area and Luzerne County, PA, to the Morris, NJ, NAF wage area. Bucks County, PA, will no longer be defined. These changes are necessary because the closure of the Naval Air Station Joint Reserve Base (NAS JRB) Willow Grove left the Montgomery wage area without an activity having the capability to conduct a local wage survey.
Send or deliver comments to Jerome D. Mikowicz, Deputy Associate Director for Pay and Leave, Employee Services, U.S. Office of Personnel Management, Room 7H31, 1900 E Street NW., Washington, DC 20415–8200; email
Madeline Gonzalez, (202) 606–2838; email
The Montgomery, Pennsylvania, nonappropriated fund (NAF) Federal Wage System (FWS) wage area is presently composed of one survey area county, Montgomery County, and four area of application counties, Bucks, Chester, Luzerne, and Philadelphia Counties. Under section 532.219 of title 5, Code of Federal Regulations, the U.S. Office of Personnel Management (OPM) may establish an NAF wage area when there are a minimum of 26 NAF wage employees in the survey area, the local activity has the capability to host annual local wage surveys, and the survey area has at least 1,800 private enterprise employees in establishments within survey specifications. The Department of Defense (DOD) notified OPM that the closure of the Naval Air Station Joint Reserve Base (NAS JRB) Willow Grove left the Montgomery wage area without an activity having the capability to conduct a local wage survey. The NAF FWS employment in Montgomery County is currently 20 employees at NAS JRB Willow Grove. DOD recommended that OPM abolish the Montgomery NAF FWS wage area and redefine Chester, Montgomery, and Philadelphia Counties, PA, to the Burlington, NJ, NAF wage area and Luzerne County, PA, to the Morris, NJ, NAF wage area.
Since Chester, Luzerne, Montgomery, and Philadelphia Counties will have continuing NAF employment and do not meet the regulatory criteria under 5 CFR 532.219 to be separate survey areas, they must be areas of application. In defining counties as area of application counties, OPM considers the following criteria:
(i) Proximity of largest facilities activity in each county;
(ii) Transportation facilities and commuting patterns; and
(iii) Similarities of the counties in:
(A) Overall population;
(B) Private employment in major industry categories; and
(C) Kinds and sizes of private industrial establishments.
In selecting a wage area to which Chester County should be redefined, proximity favors the Harford, MD, NAF wage area. All other criteria are indeterminate. Based on the mixed nature of the regulatory analysis findings, we believe the fact that Chester County is geographically linked to Bucks, Delaware, Montgomery, and Philadelphia Counties, with all five counties encompassing the greater Philadelphia area, provides strong evidence that these counties should remain together. Therefore, OPM recommends that Chester County be redefined as an area of application to the Burlington NAF wage area.
In selecting a wage area to which Montgomery and Philadelphia Counties should be redefined, proximity favors the Burlington NAF wage area. All other criteria are indeterminate. Based on the application of the regulatory criteria, OPM recommends that Montgomery and Philadelphia Counties be redefined as areas of application to the Burlington NAF wage area.
In selecting a wage area to which Luzerne County should be redefined, proximity favors the Morris NAF wage area. All other criteria are indeterminate. Based on the application of the regulatory criteria, OPM recommends that Luzerne County be redefined as an area of application to the Morris NAF wage area.
OPM is removing Bucks County from the wage area definition. There are no longer NAF FWS employees working in Bucks County. Under 5 U.S.C. 5343(a)(1)(B)(i), NAF wage areas “shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed.” Therefore, Bucks County should not be defined as part of an NAF wage area.
The Burlington NAF wage area will consist of one survey county, Burlington County, NJ, and nine area of application counties: New Castle County, DE; Atlantic, Cape May, Monmouth, Ocean, and Salem Counties, NJ; and Chester, Montgomery, and Philadelphia Counties, PA. The Morris NAF wage area will consist of one survey county, Morris County, and three area of application counties: Somerset County, NJ, and Luzerne and Monroe Counties, PA. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for
Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), I find that good cause exists to waive the general notice of proposed rulemaking. Also pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists for making this rule effective in less than 30 days. This notice is being waived and the regulation is being made effective in less than 30 days because the closure of NAS JRB Willow Grove left the Montgomery wage area without an activity having the capability to conduct a local wage survey and the remaining NAF FWS employees in Chester, Montgomery, and Philadelphia Counties must be transferred to a continuing wage area as soon as possible.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, the U.S. Office of Personnel Management is amending 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
Agricultural Marketing Service, USDA.
Final rule.
This final rule amends the U.S. Department of Agriculture's (USDA's) National List of Allowed and Prohibited Substances (National List) to enact two recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB) on June 20, 2008, and May 30, 2004. This final rule establishes exemptions (uses) for two substances, fenbendazole and moxidectin, along with any restrictive annotations, as parasiticides in organic livestock production.
Melissa Bailey, Ph.D., Director, Standards Division, National Organic Program, (202) 720–3252; Fax: (202) 205–7808.
On December 21, 2000, the Secretary established, within the National Organic Program (NOP) (7 CFR part 205), the National List regulations sections 205.600 through 205.607. This National List identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural and nonorganic agricultural substances that may be used in organic handling. The Organic Foods Production Act of 1990, as amended, (7 U.S.C. 6501–6522), (OFPA), and NOP regulations, in section 205.105, specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural and any nonsynthetic nonagricultural substance used in organic handling appear on the National List.
Under the authority of the OFPA, the National List can be amended by the Secretary based on proposed amendments developed by the NOSB. Since established, the NOP has published multiple amendments to the National List: October 31, 2003 (68 FR 61987); November 3, 2003 (68 FR 62215); October 21, 2005 (70 FR 61217); June 7, 2006 (71 FR 32803); September 11, 2006 (71 FR 53299); June 27, 2007 (72 FR 35137); October 16, 2007 (72 FR 58469); December 10, 2007 (72 FR 69569); December 12, 2007 (72 FR 70479); September 18, 2008 (73 FR 54057); October 9, 2008 (73 FR 59479); July 6, 2010 (75 FR 38693); August 24, 2010 (75 FR 51919); December 13, 2010 (75 FR 77521); March 14, 2011 (76 FR 13501); August 3, 2011 (76 FR 46595); and February 14, 2012 (77 FR 8089). Additionally, proposed amendments to the National List were published on November 8, 2011 (76 FR 69141); January 12, 2012 (77 FR 1980; 77 FR 1996); and February 6, 2012 (77 FR 5717).
This final rule amends the National List to enact two recommendations submitted to the Secretary by the NOSB on June 20, 2008, and May 30, 2004.
The following provides an overview of the amendments made to designated sections of the National List regulations:
This final rule amends § 205.603(a) of the National List regulations by revising paragraph (a)(18) to move ivermectin to a new section (ii), adding fenbendazole at new section (i), and adding moxidectin at new section (iii) as follows: (a)(18) Parasiticides. Prohibited in slaughter stock, allowed in emergency treatment for dairy and breeder stock when organic system plan-approved preventive management does not prevent infestation. Milk or milk products from a treated animal cannot be labeled as provided for in subpart D of this part for 90 days following treatment. In breeder stock, treatment cannot occur during the last third of gestation if the progeny will be sold as organic and must not be used during the lactation period for breeding stock.
(i) Fenbendazole (CAS #43210–67–9)—only for use by or on the lawful written order of a licensed veterinarian.
(ii) Ivermectin (CAS #70288–86–7).
(iii) Moxidectin (CAS #113507–06–5)—for control of internal parasites only.
Two notices were published regarding the meetings of the NOSB and deliberations on recommendations and substances petitioned for amending the National List. Substances and recommendations included in this final rule were announced for NOSB deliberation in the following
In a proposed rule published on July 17, 2006 (71 FR 40624), USDA announced its decision that moxidectin would not be proposed for inclusion on the National List because of its macrolide antibiotic classification, which was inconsistent with NOP policy prohibiting the use of antibiotics in organic livestock production. In a final rule published on December 12, 2007 (72 FR 70479), USDA responded to comments from the proposed rule and affirmed that the NOSB recommended use of moxidectin is as a parasiticide, not as an antibiotic.
The proposal to allow the emergency use of the two substances in this final rule was published as a proposed rule on May 5, 2011 (76 FR 25612).
The OFPA, as amended (7 U.S.C. 6501–6522), authorizes the Secretary to make amendments to the National List based on proposed amendments developed by the NOSB. Sections 6518(k) and 6518(n) of the OFPA authorize the NOSB to develop proposed amendments to the National List for submission to the Secretary and establish a petition process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. The National List petition process is implemented under section 205.607 of the NOP regulations. The current petition process (72 FR 2167, January 18, 2007) can be accessed through the NOP Web site at
This action has been determined not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This final rule is not intended to have a retroactive effect.
States and local jurisdictions are preempted under the OFPA from creating programs of accreditation for private persons or State officials who want to become certifying agents of organic farms or handling operations. A governing State official would have to apply to USDA to be accredited as a certifying agent, as described in the OFPA (7 U.S.C. 6514(b)). States are also preempted under the OFPA (7 U.S.C. 6503 through 6507) from creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA.
Pursuant to the OFPA (7 U.S.C. 6507(b)(2)), a State organic certification program may contain additional requirements for the production and handling of organically produced agricultural products that are produced in the State and for the certification of organic farm and handling operations located within the State under certain circumstances. Such additional requirements must: (a) Further the purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.
Pursuant to the OFPA (7 U.S.C. 6519(f)), this final rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601–624), the Poultry Products Inspection Act (21 U.S.C. 451–471), or the Egg Products Inspection Act (21 U.S.C. 1031–1056), concerning meat, poultry, and egg products, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301–399), nor the authority of the Administrator of the EPA under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136–136(y)).
The OFPA (7 U.S.C. 6520) provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under this title that adversely affects such person or is inconsistent with the organic certification program established under this title. The OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
Pursuant to the requirements set forth in the RFA, AMS performed an economic impact analysis on small entities in the final rule published in the
Small agricultural service firms, which include producers, handlers, and accredited certifying agents, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000.
According to USDA Economic Research Service (ERS) data based upon information from USDA-accredited certifying agents, the number of certified U.S. organic crop and livestock operations totaled nearly 13,000 and certified organic acreage exceeded 4.8 million acres in 2008.
The U.S. sales of organic food and beverages grew from $3.6 billion in 1997 to nearly $21.1 billion in 2008. Between 1990 and 2008, organic food sales demonstrated a growth rate between 15 to 24 percent each year. In 2010, organic food sales grew 7.7 percent.
In addition, USDA has accredited 93 certifying agents who provide certification services to producers and handlers under the NOP. A complete list of names and addresses of accredited certifying agents may be found on the AMS NOP web site, at
No additional collection or recordkeeping requirements are imposed on the public by this final rule. Accordingly, OMB clearance is not required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, chapter 35).
This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
AMS received 15 comments on the proposed rule AMS–NOP–10–0078; NOP–09–03. Comments were received from large animal veterinarians, organic dairy producers and handlers, a livestock parasitologist, agricultural consultants, a trade association, an accredited certifying agent, a nonorganic beef operation, and a private citizen. Some of the comments supported the additions of fenbendazole and moxidectin to the National List as proposed. Many comments stated that fenbendazole and moxidectin were preferable to ivermectin, which is the only parasiticide currently approved for internal use in organic dairy or breeder livestock. Several comments supporting the use of fenbendazole and moxidectin asserted that under the access to pasture requirements for organic ruminants, which were fully implemented in June 2010, these livestock face an increased risk of parasite infestations which warrants greater access to synthetic parasiticides. Some comments emphasized that the restrictive annotations as proposed would ensure that use of fenbendazole and moxidectin would be used infrequently as a last resort emergency treatment when preventive practices and veterinary biologics are not effective. Two comments which opposed the use of both fenbendazole and moxidectin either disputed their necessity in organic livestock production or broadly opposed the use of animal drugs in organic production.
A number of comments expressed support for fenbendazole by comparing that substance to the parasiticide ivermectin, with respect to ecological impacts, effectiveness and parasite resistance. Some comments characterized fenbendazole as more benign towards earthworms and dung beetles than ivermectin. Commenters described ivermectin as harmful to aquatic and soil plants, micro-organisms, earthworms, and dung beetles. Several comments indicated that ivermectin has limited effectiveness. One comment specifically noted that this parasiticide does not cover all life stages of all gastro-intestinal parasites. Another comment remarked that the development of resistance to ivermectin can be attributed to the frequency of treatment in organic production due to the lack of other approved treatments for internal parasites. Finally, one comment noted that there are no ivermectin products labeled for use in female cattle of breeding age, while fenbendazole is not subject to such restriction. Support for the use of moxidectin was also framed in comparison to ivermectin. Several comments stated that moxidectin is less toxic to important soil organisms and a more effective treatment for long-term control of certain fecal parasitic eggs.
The Food and Drug Administration (FDA) regulations permit the use of topical and injectable solutions of moxidetin for both internal and external parasites, however, only the topical form is permitted in dairy cattle. In the proposed rule, AMS specifically requested comments on the moxidectin annotation which limits use for internal parasites only. One comment stated that moxidectin could be useful to treat external parasiticides, but the availability of fenbendazole would make moxidectin unnecessary for internal parasites. Some comments, however, suggested that a producer's ability to alternate parasiticides would help prevent resistance. As comments did not substantively object to the proposed use of moxidectin, the listing of moxidectin for internal parasites only has not been altered. As of this final rule, three parasiticides will be permitted for internal parasites in organic livestock production: ivermectin, fenbendazole, and moxidectin.
Several commenters who supported the use of fenbendazole cited economic factors for opposing the 90-day withholding period for milk. They explained that recent amendments to the NOP regulations at section 205.239, which requires pasturing of ruminants during the grazing season, will increase livestock exposure to parasites.
A number of comments cited research to assert that fenbandazole is rapidly metabolized and does not leave residues in milk. The studies cited indicated that fenbendazole degrades quickly after 48 hours and residues were undetectable after 72 hours to six days.
Under the existing NOP regulations at § 205.238(b), a 90-day milk withholding period is required after use of any synthetic parasiticide treatment approved for organic dairy animals. This has been a requirement since the NOP regulations were established in 2000. Despite objections at that time, which asserted that the provision ignored animal welfare and farm economics, the 90-day withholding period was retained in the NOP final rule. The preamble to the NOP final rule explained that the 90-day timeframe was based on a NOSB recommendation and the NOSB has the authority to reconsider this requirement (65 FR 80573).
The NOSB has the authority to recommend a change to the 90-day milk withholding period. The OFPA restricts the Secretary from adding an exemption for the use of a synthetic substance unless this has been proposed by the NOSB. A reduction in the withholding period would relax the use restrictions on a synthetic substance and would, therefore, require NOSB consideration. Any NOSB recommendation to change a withholding period for parasiticides would need to address section 205.238(b) in the Livestock Health Care practice standards as well as the listing for parasiticides at section 205.603(a)(18). AMS understands that producers may occasionally need to withhold milk from the organic market when fenbendazole is administered to lactating dairy animals that are suffering from parasite infestation. However, the routine use of parasiticides is prohibited under the NOP regulations and therefore AMS does not expect that use of fenbendazole will be widespread or frequent. Furthermore, rotating pastures and maintaining suitable stocking rates are preventative practices that can interrupt the host-parasite cycle and reduce susceptibility of livestock to infection.
Expanding the use of parasiticides to organic slaughter stock is broader than the scope of proposed actions considered in this rulemaking. Lifting the prohibition on the use of parasiticides in slaughter stock would merit full consideration by the NOSB since such a change would establish new uses for synthetic substances in organic livestock production.
This final rule reflects recommendations submitted to the Secretary by the NOSB. The substances being added to the National List were based upon petitions from the industry and were evaluated by the NOSB using criteria in the Act and the regulations. One of these recommendations was first made by the NOSB in 2004, and the substance was discussed in two subsequent
Administrative practice and procedure, Agriculture, Animals, Archives and records, Imports, Labeling, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons set forth in the preamble, 7 CFR part 205, subpart G is amended as follows:
7 U.S.C. 6501–6522.
(a) * * *
(18) Parasiticides. Prohibited in slaughter stock, allowed in emergency treatment for dairy and breeder stock when organic system plan-approved preventive management does not prevent infestation. Milk or milk products from a treated animal cannot be labeled as provided for in subpart D of this part for 90 days following treatment. In breeder stock, treatment cannot occur during the last third of gestation if the progeny will be sold as organic and must not be used during the lactation period for breeding stock.
(i) Fenbendazole (CAS # 43210–67–9)—only for use by or on the lawful written order of a licensed veterinarian.
(ii) Ivermectin (CAS # 70288–86–7).
(iii) Moxidectin (CAS # 113507–06–5)—for control of internal parasites only.
Securities and Exchange Commission.
Final rule; technical amendment.
The Securities and Exchange Commission (“Commission”) is making a technical amendment to the definition of “covered associate” in rule 206(4)–5 under the Investment Advisers Act of 1940 (“Advisers Act”) to correct an inadvertent error in the rule as published in the
Vanessa M. Meeks, Attorney-Adviser, or Melissa A. Roverts, Branch Chief, at (202) 551–6787 or
The Commission adopted rule 206(4)–5 in July 2010 to prohibit an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees (“covered associates”) make a contribution to certain elected officials or candidates.
In June 2011, the Commission adopted many of the new rules and rule amendments set forth in the Implementing Proposing Release, including amendments to rule 206(4)–5.
Under the Administrative Procedure Act (“APA”), notice of proposed rulemaking is not required when an agency, for good cause, finds “that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
The APA also requires publication of a rule at least 30 days before its effective date unless the agency finds otherwise for good cause.
The amendment the Commission is adopting does not make substantive or material modifications to any collection of information requirements as defined by the Paperwork Reduction Act of 1995, as amended.
The Commission is sensitive to the costs and benefits of its rules. The rule amendment the Commission is adopting today is technical and is being made solely to correct a mistake and therefore will have minimal, if any, economic effect.
We are adopting this technical amendment to rule 206(4)–5 under the authority set forth in sections 206(4) and 211(a) of the Advisers Act.
Reporting and recordkeeping requirements; Securities.
For the reasons set out in the preamble, Title 17, Chapter II of the Code of the Federal Regulations is amended as follows:
15 U.S.C. 80b–2(a)(11)(H), 80b–2(a)(17), 80b–3, 80b–4, 80b–4a, 80b–6(4), 80b–6a, and 80b–11, unless otherwise noted.
(f) * * *
(2) * * *
(i) Any general partner, managing member or executive officer, or other individual with a similar status or function;
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in June 2012. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.
Effective June 1, 2012.
Catherine B. Klion (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions —including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (
PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for June 2012.
The June 2012 interest assumptions under the benefit payments regulation will be 1.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for May 2012, these interest assumptions represent an decrease of 0.25 percent in the immediate annuity rate and are otherwise unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during June 2012, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Office of the Secretary, Treasury.
Final rule; technical amendments.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Department of the Treasury is revising this part by amending Subpart C to reflect changes affecting the Department's organization since January 2003.
Dale Underwood, Privacy Act Officer, Department of the Treasury, at 202–622–0874, or by email at
The Department is amending this part to reflect the transition, in 2003, of the United States Customs Service, the Federal Law Enforcement Training Center, and United States Secret Service from the Department of the Treasury to the Department of Homeland Security. In addition, the amendments reflect the 2003 transfer of certain functions of the Bureau of Alcohol, Tobacco and Firearms (ATF) to the Department of Justice, and the remaining functions reorganized as the Alcohol and Tobacco Tax and Trade Bureau (TTB) within the Department of the Treasury. The amendment conforms 31 CFR 1.36 to the changes made to the organization of the Department as set out in Treasury Order 101–05 “Reporting Relationships and Supervision of Officials, Offices and Bureaus, and Delegation of Certain Authority in the Department of the Treasury,” dated January 10, 2011.
The Privacy Act authorizes the head of the agency to promulgate rules in accordance with the Administrative Procedure Act to exempt Privacy Act systems of records from certain provisions of the Privacy Act, if the system of records contains records that fall within 5 U.S.C. 552a(j) and/or (k).
No new systems of records are being exempted pursuant to this rule nor is any new exemption being added to any systems of records. The rule will update the regulations to reflect changes to the number or title of a system of records and by removing references to systems of records that have been deleted from the Department's inventory of systems of records.
For the reasons described above, this part is being amended to remove the headings, tables, and content pertaining to the following former Treasury bureaus: The U.S. Customs Service, the Federal Law Enforcement Training Center, and the U. S. Secret Service which are being deleted throughout Section 1.36.
The document also amends this part by removing sections (i) and (j) which identified the system of records and the reasons for exempting the system of records under 5 U.S.C. 552a(k)(3). The system of records was maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of Title 18. Any references to protective investigative records found in sections (c), (d) and (g) of this part have also been removed. These functions are performed by the U.S. Secret Service and were transferred to the Department of Homeland Security in 2003. The remaining sections have been re-designated.
Under provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, 124 Stat. 1376 (2010) (Dodd-Frank Act) certain powers and authorities of the Office of Thrift Supervision (OTS) were transferred on July 21, 2011, to other banking agencies, including the Office of the Comptroller of the Currency (OCC) and then abolished. The OCC published a notice on July 26, 2011, at 76 FR 44656 adopting the Privacy Act systems of records formerly maintained by the OTS. These systems of records will be revised, consolidated or deleted by the OCC at a later date. The headings “Office of Thrift Supervision,” the tables and content found at sections (c)(1)(xii), (g)(1)(xii) and (m)(1)(xii) are removed. The OTS systems of records for which an exemption has been previously claimed have been [and as] adopted by the OCC are moved to the tables under the heading “Comptroller of the Currency” any remaining headings and tables are re-designated
These regulations are being published as a final rule because the amendments do not impose any requirements on any member of the public. These amendments are the most efficient means for the Treasury Department to implement its internal requirements for complying with the Privacy Act.
Accordingly, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), the Department of the Treasury finds good cause that prior notice and other public procedures with respect to this rule are unnecessary, and good cause for making this final rule effective on the date of publication in the
Pursuant to Executive Order 12866, it has been determined that this final rule is not a significant regulatory action, and therefore, does not require a regulatory impact analysis.
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601–612, do not apply.
Privacy.
Part 1 of title 31 of the Code of Federal Regulations is amended as follows:
5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552 as amended. Subpart C also issued under 5 U.S.C. 552a.
(a)
(b)
(c)
(i) Treasury.
(ii) Departmental Offices:
(iii) Alcohol and Tobacco Tax and Trade Bureau.
(iv) Comptroller of the Currency:
(v) Bureau of Engraving and Printing.
(vi) Financial Management Service.
(vii) Internal Revenue Service:
(viii) U.S. Mint.
(ix) Bureau of the Public Debt.
(x) Financial Crimes Enforcement Network:
(2) The Department hereby exempts the systems of records listed in paragraphs (c)(1)(i) through (x) of this section from the following provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(j)(2): 5 U.S.C. 552a(c)(3) and (4), 5 U.S.C. 552a(d)(1), (2), (3), (4), 5 U.S.C. 552a(e)(1), (2) and (3), 5 U.S.C. 552a(e)(4)(G), (H), and (I), 5 U.S.C. 552a(e)(5) and (8), 5 U.S.C. 552a(f), and 5 U.S.C. 552a(g).
(d)
(i) Take steps to avoid detection;
(ii) Inform associates that an investigation is in progress;
(iii) Learn the nature of the investigation;
(iv) Learn whether they are only suspects or identified as law violators;
(v) Begin, continue, or resume illegal conduct upon learning that they are not identified in the system of records; or
(vi) Destroy evidence needed to prove the violation.
(2) 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (3) and (5) grant individuals access to records pertaining to them. The application of these provisions to the systems of records would compromise the Department's ability to provide useful tactical and strategic information to law enforcement agencies.
(i) Permitting access to records contained in the systems of records would provide individuals with information concerning the nature of any current investigations and would enable them to avoid detection or apprehension by:
(A) Discovering the facts that would form the basis for their arrest;
(B) Enabling them to destroy or alter evidence of criminal conduct that would form the basis for their arrest; and
(C) Using knowledge that criminal investigators had reason to believe that a crime was about to be committed, to delay the commission of the crime or commit it at a location that might not be under surveillance.
(ii) Permitting access to either on-going or closed investigative files would also reveal investigative techniques and procedures, the knowledge of which could enable individuals planning crimes to structure their operations so as to avoid detection or apprehension.
(iii) Permitting access to investigative files and records could, moreover, disclose the identity of confidential sources and informants and the nature of the information supplied and thereby endanger the physical safety of those sources by exposing them to possible reprisals for having provided the information. Confidential sources and informants might refuse to provide criminal investigators with valuable information unless they believe that their identities will not be revealed through disclosure of their names or the nature of the information they supplied. Loss of access to such sources would seriously impair the Department's ability to carry out its mandate.
(iv) Furthermore, providing access to records contained in the systems of records could reveal the identities of undercover law enforcement officers who compiled information regarding the individual's criminal activities and thereby endanger the physical safety of those undercover officers or their families by exposing them to possible reprisals.
(v) By compromising the law enforcement value of the systems of records for the reasons outlined in paragraphs (d)(2)(i) through (iv) of this section, permitting access in keeping with these provisions would discourage other law enforcement and regulatory agencies, foreign and domestic, from freely sharing information with the Department and thus would restrict the Department's access to information necessary to accomplish its mission most effectively.
(vi) Finally, the dissemination of certain information that the Department maintains in the systems of records is restricted by law.
(3) 5 U.S.C. 552a(d)(2), (3) and (4), (e)(4)(H), and (f)(4) permit an individual to request amendment of a record pertaining to him or her and require the agency either to amend the record, or to note the disputed portion of the record and to provide a copy of the individual's statement of disagreement with the agency's refusal to amend a record to persons or other agencies to whom the record is thereafter disclosed. Since these provisions depend on the individual having access to his or her records, and since these rules exempt the systems of records from the provisions of 5 U.S.C. 552a relating to access to records, for the reasons set out in paragraph (d)(2) of this section, these provisions should not apply to the systems of records.
(4) 5 U.S.C. 552a(c)(3) requires an agency to make accountings of disclosures of a record available to the individual named in the record upon his or her request. The accountings must state the date, nature, and purpose of each disclosure of the record and the name and address of the recipient.
(i) The application of this provision would impair the ability of law enforcement agencies outside the
(ii) Moreover, providing accountings to the subjects of investigations would alert them to the fact that the Department has information regarding their criminal activities and could inform them of the general nature of that information. Access to such information could reveal the operation of the Department's information-gathering and analysis systems and permit individuals to take steps to avoid detection or apprehension.
(5) 5 U.S.C. 552(c)(4) requires an agency to inform any person or other agency about any correction or notation of dispute that the agency made in accordance with 5 U.S.C. 552a(d) to any record that the agency disclosed to the person or agency if an accounting of the disclosure was made. Since this provision depends on an individual's having access to and an opportunity to request amendment of records pertaining to him or her, and since these rules exempt the systems of records from the provisions of 5 U.S.C. 552a relating to access to and amendment of records, for the reasons set out in paragraph (f)(3) of this section, this provision should not apply to the systems of records.
(6) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a general notice listing the categories of sources for information contained in a system of records. The application of this provision to the systems of records could compromise the Department's ability to provide useful information to law enforcement agencies, since revealing sources for the information could:
(i) Disclose investigative techniques and procedures;
(ii) Result in threats or reprisals against informants by the subjects of investigations; and
(iii) Cause informants to refuse to give full information to criminal investigators for fear of having their identities as sources disclosed.
(7) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order. The term “maintain,” as defined in 5 U.S.C. 552a(a)(3), includes “collect” and “disseminate.” The application of this provision to the systems of records could impair the Department's ability to collect and disseminate valuable law enforcement information.
(i) In many cases, especially in the early stages of investigation, it may be impossible to immediately determine whether information collected is relevant and necessary, and information that initially appears irrelevant and unnecessary often may, upon further evaluation or upon collation with information developed subsequently, prove particularly relevant to a law enforcement program.
(ii) Not all violations of law discovered by the Department fall within the investigative jurisdiction of the Department of the Treasury. To promote effective law enforcement, the Department will have to disclose such violations to other law enforcement agencies, including State, local and foreign agencies, that have jurisdiction over the offenses to which the information relates. Otherwise, the Department might be placed in the position of having to ignore information relating to violations of law not within the jurisdiction of the Department of the Treasury when that information comes to the Department's attention during the collation and analysis of information in its records.
(8) 5 U.S.C. 552a(e)(2) requires an agency to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs. The application of this provision to the systems of records would impair the Department's ability to collate, analyze, and disseminate investigative, intelligence, and enforcement information.
(i) Most information collected about an individual under criminal investigation is obtained from third parties, such as witnesses and informants. It is usually not feasible to rely upon the subject of the investigation as a source for information regarding his criminal activities.
(ii) An attempt to obtain information from the subject of a criminal investigation will often alert that individual to the existence of an investigation, thereby affording the individual an opportunity to attempt to conceal his criminal activities so as to avoid apprehension.
(iii) In certain instances, the subject of a criminal investigation may assert his/her constitutional right to remain silent and refuse to supply information to criminal investigators upon request.
(iv) During criminal investigations it is often a matter of sound investigative procedure to obtain information from a variety of sources to verify information already obtained from the subject of a criminal investigation or other sources.
(9) 5 U.S.C. 552a(e)(3) requires an agency to inform each individual whom it asks to supply information, on the form that it uses to collect the information or on a separate form that the individual can retain, of the agency's authority for soliciting the information; whether disclosure of information is voluntary or mandatory; the principal purposes for which the agency will use the information; the routine uses that may be made of the information; and the effects on the individual of not providing all or part of the information. The systems of records should be exempted from this provision to avoid impairing the Department's ability to collect and collate investigative, intelligence, and enforcement data.
(i) Confidential sources or undercover law enforcement officers often obtain information under circumstances in which it is necessary to keep the true purpose of their actions secret so as not to let the subject of the investigation or his or her associates know that a criminal investigation is in progress.
(ii) If it became known that the undercover officer was assisting in a criminal investigation, that officer's physical safety could be endangered through reprisal, and that officer may not be able to continue working on the investigation.
(iii) Individuals often feel inhibited in talking to a person representing a criminal law enforcement agency but are willing to talk to a confidential source or undercover officer whom they believe are not involved in law enforcement activities.
(iv) Providing a confidential source of information with written evidence that he or she was a source, as required by this provision, could increase the likelihood that the source of information
(v) Individuals may be contacted during preliminary information gathering, surveys, or compliance projects concerning the administration of the internal revenue laws before any individual is identified as the subject of an investigation. Informing the individual of the matters required by this provision would impede or compromise subsequent investigations.
(10) 5 U.S.C. 552a(e)(5) requires an agency to maintain all records it uses in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.
(i) Since 5 U.S.C. 552a(a)(3) defines “maintain” to include “collect” and “disseminate,” application of this provision to the systems of records would hinder the initial collection of any information that could not, at the moment of collection, be determined to be accurate, relevant, timely, and complete. Similarly, application of this provision would seriously restrict the Department's ability to disseminate information pertaining to a possible violation of law to law enforcement and regulatory agencies. In collecting information during a criminal investigation, it is often impossible or unfeasible to determine accuracy, relevance, timeliness, or completeness prior to collection of the information. In disseminating information to law enforcement and regulatory agencies, it is often impossible to determine accuracy, relevance, timeliness, or completeness prior to dissemination because the Department may not have the expertise with which to make such determinations.
(ii) Information that may initially appear inaccurate, irrelevant, untimely, or incomplete may, when collated and analyzed with other available information, become more pertinent as an investigation progresses. In addition, application of this provision could seriously impede criminal investigators and intelligence analysts in the exercise of their judgment in reporting results obtained during criminal investigations.
(11) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable efforts to serve notice on an individual when the agency makes any record on the individual available to any person under compulsory legal process, when such process becomes a matter of public record. The systems of records should be exempted from this provision to avoid revealing investigative techniques and procedures outlined in those records and to prevent revelation of the existence of an ongoing investigation where there is need to keep the existence of the investigation secret.
(12) 5 U.S.C. 552a(g) provides for civil remedies to an individual when an agency wrongfully refuses to amend a record or to review a request for amendment, when an agency wrongfully refuses to grant access to a record, when an agency fails to maintain accurate, relevant, timely, and complete records which are used to make a determination adverse to the individual, and when an agency fails to comply with any other provision of 5 U.S.C. 552a so as to adversely affect the individual. The systems of records should be exempted from this provision to the extent that the civil remedies may relate to provisions of 5 U.S.C. 552a from which these rules exempt the systems of records, since there should be no civil remedies for failure to comply with provisions from which the Department is exempted. Exemption from this provision will also protect the Department from baseless civil court actions that might hamper its ability to collate, analyze, and disseminate investigative, intelligence, and law enforcement data.
(e)
(i) Departmental Offices:
(ii) Financial Crimes Enforcement Network:
(2) The Department of the Treasury hereby exempts the systems of records listed in paragraph (e)(1)(i) and (ii) of this section from the following provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(1): 5 U.S.C. 552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C. 552a(e)(1), 5 U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
(f)
(g)
(i) Treasury:
(ii) Departmental Offices:
(iii) Alcohol and Tobacco Tax and Trade Bureau:
(iv) Comptroller of the Currency:
(v) Bureau of Engraving and Printing:
(vi) Financial Management Service.
(vii) Internal Revenue Service:
(viii) U.S. Mint:
(ix) Bureau of the Public Debt:
(x) Financial Crimes Enforcement Network:
(2) The Department hereby exempts the systems of records listed in paragraphs (g)(1)(i) through (x) of this section from the following provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), (4), 5 U.S.C. 552a(e)(1), 5 U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
(h)
(i) The application of this provision would impair the ability of the Department of the Treasury and of law enforcement agencies outside the Department to make effective use of information maintained by the Department. Making accountings of disclosures available to the subjects of an investigation would alert them to the fact that an agency is conducting an investigation into their illegal activities and could reveal the geographic location of the investigation, the nature and purpose of that investigation, and the dates on which that investigation was active. Individuals possessing such knowledge would be able to take measures to avoid detection or apprehension by altering their operations, by transferring their illegal activities to other geographical areas, or by destroying or concealing evidence that would form the basis for detection or apprehension. In the case of a delinquent account, such release might enable the subject of the investigation to dissipate assets before levy.
(ii) Providing accountings to the subjects of investigations would alert them to the fact that the Department has information regarding their illegal activities and could inform them of the general nature of that information.
(2) 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (3) and (5) grant individuals access to records pertaining to them. The application of these provisions to the systems of records would compromise the Department's ability to utilize and provide useful tactical and strategic information to law enforcement agencies.
(i) Permitting access to records contained in the systems of records would provide individuals with information concerning the nature of any current investigations and would enable them to avoid detection or apprehension by:
(A) Discovering the facts that would form the basis for their detection or apprehension;
(B) Enabling them to destroy or alter evidence of illegal conduct that would form the basis for their detection or apprehension, and
(C) Using knowledge that investigators had reason to believe that a violation of law was about to be
(ii) Permitting access to either on-going or closed investigative files would also reveal investigative techniques and procedures, the knowledge of which could enable individuals planning non-criminal acts to structure their operations so as to avoid detection or apprehension.
(iii) Permitting access to investigative files and records could, moreover, disclose the identity of confidential sources and informants and the nature of the information supplied and thereby endanger the physical safety of those sources by exposing them to possible reprisals for having provided the information. Confidential sources and informants might refuse to provide investigators with valuable information unless they believed that their identities would not be revealed through disclosure of their names or the nature of the information they supplied. Loss of access to such sources would seriously impair the Department's ability to carry out its mandate.
(iv) Furthermore, providing access to records contained in the systems of records could reveal the identities of undercover law enforcement officers or other persons who compiled information regarding the individual's illegal activities and thereby endanger the physical safety of those undercover officers, persons, or their families by exposing them to possible reprisals.
(v) By compromising the law enforcement value of the systems of records for the reasons outlined in paragraphs (h)(2)(i) through (iv) of this section, permitting access in keeping with these provisions would discourage other law enforcement and regulatory agencies, foreign and domestic, from freely sharing information with the Department and thus would restrict the Department's access to information necessary to accomplish its mission most effectively.
(vi) Finally, the dissemination of certain information that the Department may maintain in the systems of records is restricted by law.
(3) 5 U.S.C. 552a(d)(2), (3) and (4), (e)(4)(H), and (f)(4) permit an individual to request amendment of a record pertaining to him or her and require the agency either to amend the record, or to note the disputed portion of the record and to provide a copy of the individual's statement of disagreement with the agency's refusal to amend a record to persons or other agencies to whom the record is thereafter disclosed. Since these provisions depend on the individual having access to his or her records, and since these rules exempt the systems of records from the provisions of 5 U.S.C. 552a relating to access to records, these provisions should not apply to the systems of records for the reasons set out in paragraph (h)(2) of this section.
(4) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required by statute or executive order. The term “maintain,” as defined in 5 U.S.C. 552a(a)(3), includes “collect” and “disseminate.” The application of this provision to the system of records could impair the Department's ability to collect, utilize and disseminate valuable law enforcement information.
(i) In many cases, especially in the early stages of investigation, it may be impossible immediately to determine whether information collected is relevant and necessary, and information that initially appears irrelevant and unnecessary often may, upon further evaluation or upon collation with information developed subsequently, prove particularly relevant to a law enforcement program.
(ii) Not all violations of law discovered by the Department analysts fall within the investigative jurisdiction of the Department of the Treasury. To promote effective law enforcement, the Department will have to disclose such violations to other law enforcement agencies, including State, local and foreign agencies that have jurisdiction over the offenses to which the information relates. Otherwise, the Department might be placed in the position of having to ignore information relating to violations of law not within the jurisdiction of the Department of the Treasury when that information comes to the Department's attention during the collation and analysis of information in its records.
(5) 5 U.S.C. 552a(e)(4)(G) and (f)(1) enable individuals to inquire whether a system of records contains records pertaining to them. Application of these provisions to the systems of records would allow individuals to learn whether they have been identified as suspects or subjects of investigation. As further described in the following paragraph, access to such knowledge would impair the Department's ability to carry out its mission, since individuals could:
(i) Take steps to avoid detection;
(ii) Inform associates that an investigation is in progress;
(iii) Learn the nature of the investigation;
(iv) Learn whether they are only suspects or identified as law violators;
(v) Begin, continue, or resume illegal conduct upon learning that they are not identified in the system of records; or
(vi) Destroy evidence needed to prove the violation.
(6) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a general notice listing the categories of sources for information contained in a system of records. The application of this provision to the systems of records could compromise the Department's ability to complete or continue investigations or to provide useful information to law enforcement agencies, since revealing sources for the information could:
(i) Disclose investigative techniques and procedures;
(ii) Result in threats or reprisals against informants by the subjects of investigations; and
(iii) Cause informants to refuse to give full information to investigators for fear of having their identities as sources disclosed.
(i)
Internal Revenue Service:
(2) The Department hereby exempts the system of records listed in paragraph (i)(1) of this section from the following provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(4): 5 U.S.C. 552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), and (4), 5
(3) The system of records is maintained under section 6108 of the Internal Revenue Code, which provides that “the Secretary or his delegate shall prepare and publish annually statistics reasonably available with respect to the operation of the income tax laws, including classifications of taxpayers and of income, the amounts allowed as deductions, exemptions, and credits, and any other facts deemed pertinent and valuable.”
(j)
(k)
(i) Treasury:
(ii) Departmental Offices:
(iii) Alcohol and Tobacco Tax and Trade Bureau.
(iv) Comptroller of the Currency.
(v) Bureau of Engraving and Printing.
(vi) Financial Management Service.
(vii) Internal Revenue Service:
(viii) U.S. Mint.
(ix) Bureau of the Public Debt.
(x) Financial Crimes Enforcement Network.
(2) The Department hereby exempts the systems of records listed in paragraph (k)(1)(i) through (x) of this section from the following provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(5): 5 U.S.C. 552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C. 552a(e)(1), 5 U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
(l)
(2) If any investigatory material contained in the above-named systems becomes involved in criminal or civil matters, exemptions of such material under 5 U.S.C. 552a(j)(2) or (k)(2) is hereby claimed.
(m)
Departmental Officers:
(2) The Department hereby exempts the system of records listed in paragraphs (m)(1) of this section from the following provisions of 5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(6): 5 U.S.C. 552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C. 552a(e)(1), 5 U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
(n)
(o)
Department of the Navy, DoD.
Final rule.
The Department of the Navy (DoN) is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (DAJAG) (Admiralty and Maritime Law) has determined that USS LAKE CHAMPLAIN (CG 57) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with certain provisions of the 72 COLREGS without interfering with its special function as a naval ship. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply.
This rule is effective May 15, 2012 and is applicable beginning May 7, 2012.
Lieutenant Jocelyn Loftus-Williams, JAGC, U.S. Navy, Admiralty Attorney, (Admiralty and Maritime Law), Office of the Judge Advocate General, Department of the Navy, 1322 Patterson Ave. SE., Suite 3000, Washington Navy Yard, DC 20374–5066, telephone 202–685–5040.
Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.
This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS LAKE CHAMPLAIN (CG 57) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 3(a), pertaining to the horizontal distance between the forward and after masthead lights. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.
Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.
Marine safety, Navigation (water), and Vessels.
For the reasons set forth in the preamble, amend part 706 of title 32 of the CFR as follows:
33 U.S.C. 1605.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Hannibal Railroad Drawbridge across the Upper Mississippi River, mile 309.9, at Hannibal, Missouri. The deviation is necessary to allow the replacement of eight wire rope lifting cables that operate the lift span. This deviation allows the bridge to remain in the closed position while the lift cables are replaced.
This deviation is effective from 9 a.m. to 3 p.m. on or about June 5, June 7, June 12 and June 14, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0378 and are available online by going to
If you have questions on this rule, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard telephone 314–269–2378, email
The Norfolk Southern Corporation requested a temporary deviation for the Hannibal Railroad Drawbridge, across the Upper Mississippi River, mile 309.9, at Hannibal, Missouri to remain in the closed-to-navigation position for four 6-hour individual closures while the eight wire rope lifting cables that operate the lift span are replaced. The closure period will be from 9 a.m. to 3 p.m. on or about June 5, June 7, June 12 and June 14, 2012.
Once the wire rope lifting cables are removed, the lift span will not be able to open, even for emergencies, until the replacement wire rope lifting cables are installed.
The Hannibal Railroad Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that drawbridges shall open promptly and fully for the passage of vessels when a request to open is given in accordance with the subpart.
There are no alternate routes for vessels transiting this section of the Upper Mississippi River. The Hannibal Railroad Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 21.1 feet above normal pool. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This temporary deviation has been coordinated with the waterway users.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Postal Service
Final rule.
The Postal Service is revising the
Margaret Falwell at 202–268–2576.
The Postal Service is taking this action to bring its international mailing standards into compliance with international standards for the acceptance of dangerous goods in international mail.
International standards have recently been the subject of discussion by the International Civil Aviation Organization (ICAO) and the Universal Postal Union (UPU), and the Postal Service anticipates that on January 1, 2013, customers will be able to mail specific quantities of lithium batteries internationally, when the batteries are properly installed in the personal electronic devices they are intended to operate.
Until such time that a less restrictive policy can be implemented consistent with international standards, and in accordance with UPU Convention, lithium batteries are not permitted in international mail. The UPU Convention and regulations are consistent with the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air (Technical Instructions). The Technical Instructions concerning the Transport of Dangerous Goods by Post do not permit “dangerous goods” as defined by the ICAO Technical Instructions in international mail. Currently, the only exceptions to this general prohibition relate to certain medical materials, infectious substances and radioactive materials when they are treated in accordance with additional requirements listed in the Technical Instructions. Lithium-ion cells and lithium metal batteries are listed in the Technical Instructions as Class 9 Miscellaneous Dangerous Goods. The prohibition on mailing lithium batteries and cells internationally also applies to mail sent by commercial air transportation to and from an APO, FPO, or DPO location.
This final rule describes the prohibitions established for mailpieces containing lithium metal or lithium-ion cells or batteries and applies regardless of quantity, size, watt hours, and whether the cells or batteries are packed in equipment, with equipment, or without equipment.
The Postal Service will also make parallel changes to other USPS publications that make reference to the mailing lithium batteries such as Publication 52,
The Postal Service hereby adopts the following changes to
Foreign relations, International postal services.
Accordingly, 39 CFR part 20 is amended to read as follows:
5 U.S.C. 552(a); 13 U.S.C. 301–307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 401, 403, 404, 407, 414, 416, 3001–3011, 3201–3219, 3403–3406, 3621, 3622, 3626, 3632, 3633, and 5001.
i. Primary lithium metal or lithium alloy (non-rechargeable) cells and batteries, or secondary lithium-ion cells and batteries (rechargeable), regardless of quantity, size, watt hours, and regardless of whether the cells or batteries are packed in the equipment they are intended to operate, with the equipment they are intended to operate, or without equipment (individual batteries). This standard applies to all APO, FPO, or DPO locations.
We will publish an amendment to 39 CFR part 20 to reflect these changes.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Delaware. This revision amends Delaware's regulation that establishes controls for nitrogen oxides (NO
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2011–0642. All documents in the docket are listed in the
Asrah Khadr, (215) 814–2071, or by email at
On January 23, 2012 (77 FR 3211), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of amendments to Delaware's regulation which establishes controls for NO
This SIP revision consists of providing a facility-wide emissions cap compliance alternative limit for the fluid catalytic cracking unit CO boiler at the Delaware City Refinery. This NO
EPA is approving the Delaware SIP revision to amend the regulation that establishes controls for NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 16, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to amendments of Delaware's regulation regarding the control of NO
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Maryland State Implementation Plan (SIP). The revisions pertain to sources which are exempt from preconstruction permitting requirements under Maryland's New Source Review (NSR) program. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on July 16, 2012 without further notice, unless EPA receives adverse written comment by June 14, 2012. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2012–0292 by one of the following methods:
A.
B.
C.
D.
David Talley, (215) 814–2117, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On December 1, 2003, the Maryland Department of the Environment (MDE) submitted a formal revision (#03–11) to its State Implementation Plan (SIP). The SIP revision consists of two amendments: (A) the repeal of the exemption from permitting requirements for equipment burning solid fuel at a rate of 350,000 British thermal units per hour (Btu/hr) or less, and (B) the reduction of the cutoff level of the exemption for stationary internal combustion engines.
Regulation .10 under COMAR 26.11.02 (Permits, Approvals, and Registration) contains exemptions for certain sources that are not required to obtain approvals or permits to construct prior to the construction or modification of the affected source. Specifically, COMAR 26.11.02.10D (as it currently exists in the Maryland SIP) provides such an exemption for fuel burning equipment using solid fuel with a heat input rate of less than 350,000 Btu/hr. This exemption led to the mistaken belief on the part of some owners/operators of such sources that this equipment was not subject to any air quality related requirements. However, the exemption from permitting requirements does not provide an exemption from other applicable air pollution requirements. No such relief exists in MDE's regulations. Fuel burning equipment must meet all applicable requirements and emissions limitations, regardless of size. In order to remove any ambiguity, COMAR 26.11.02.10D was repealed.
COMAR 26.11.02.10E provides a similar exemption for stationary combustion engines under 1,000 brake horsepower (bhp) operating under 2,000 hours per year, as well as all stationary internal combustion engines under 500 bhp. Regulation .10E was revised to remove the exemption for the larger engines, and now only applies to engines with an output less than 500 bhp, and which are not used to generate electricity for sale or load shaving (
The revisions to COMAR 26.11.02.10D and .10E were effective in Maryland on November 24, 2003. The MDE submitted them to EPA for approval into the SIP on December 1, 2003. EPA's review of the SIP submittal finds the revisions consistent with CAA requirements.
EPA is approving MDE's December 1, 2003 SIP submittal. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules”
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 16, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is establishing the tree nut crop group tolerance and separate tolerances on pistachio and pine nuts for both the fumigant propylene oxide and the reaction product from the use of propylene oxide, known as propylene chlorohydrin, to cover all registered uses on raw and processed nuts. Also, in accordance with current Agency practice, EPA is making minor revisions to tolerance expressions for propylene oxide and propylene chlorohydrin.
This regulation is effective May 15, 2012. Objections and requests for hearings must be received on or before July 16, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2005–0253. All documents in the docket are listed in the docket index available at
Joseph Nevola, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–8037; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2005–0253 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 16, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2005–0253, by one of the following methods:
•
•
•
In the
In this final rule, in order to cover all registered uses on raw and processed nuts, EPA is establishing in 40 CFR 180.491(a)(1) tolerances for propylene oxide at 300 ppm on nut, pine; nut, tree, group 14; and pistachio; and in 40 CFR 180.491(a)(2) tolerances for propylene chlorohydrin at 10.0 ppm on nut, pine; nut, tree, group 14; and pistachio. Also, in accordance with current Agency practice, EPA is making minor revisions to tolerance expressions for propylene oxide and propylene chlorohydrin.
However, the proposed tolerance terminology changes in 40 CFR 180.491(a)(1) and (a)(2) for crop group 19 (each from dried to dried leaves) would have excluded a variety of herbs and spices in crop group 19 that are not leaves, such as pepper or poppy. Therefore, EPA has decided not to amend the current tolerance terminologies in 40 CFR 180.491(a)(1) for “herbs and spices, group 19, dried” and in 40 CFR 180.491(a)(2) for “herbs and spices, group 19, dried, except basil.”
EPA is finalizing these tolerance actions in order to implement the tolerance recommendations made in the Reregistration Eligibility Decision (RED) for propylene oxide to establish a tree nut crop group to address the lack of a tolerance for registered uses on raw nuts and conform the existing tolerance on “nutmeat, processed, except peanuts” with current Agency commodity terms. As part of the RED and tolerance reassessment processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the Federal Food, Drug, and Cosmetic Act (FFDCA). The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each RED. REDs recommend the implementation of certain tolerance actions, including modifications, to reflect current use patterns, to meet safety findings and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242–2419; telephone number: 1–800–490–9198; fax number: 1–513–489–8695; Internet at
In response to the proposed rule published in the
EPA may issue a regulation establishing, modifying, or revoking a tolerance under FFDCA section 408(e). In this final rule, EPA is establishing tolerances to implement the tolerance recommendations made in the RED for propylene oxide.
As stated in the
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for propylene oxide or propylene chlorohydrin.
In this final rule, EPA establishes tolerances under FFDCA section 408(e). The Office of Management and Budget (OMB) has exempted this type of action (i.e., establishment of a tolerance) from review under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(2) Tolerances are established for residues of the reaction product, propylene chlorohydrin, including its metabolites and degradates, in or on the commodities in the table in this paragraph. Compliance with the tolerance levels specified in this paragraph is to be determined by measuring only the sum of propylene chlorohydrin (1-chloro-2-propanol), and its isomer 2-chloro-1-propanol, calculated as the stoichiometric equivalent of propylene chlorohydrin (1-chloro-2-propanol), that results from the use of propylene oxide as a postharvest fumigant, in or on the commodity.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason General category retention limit adjustment.
NMFS is adjusting the Atlantic tunas General category daily Atlantic bluefin tuna (BFT) retention limit for the June through August 2012 time period, based on consideration of the regulatory determination criteria regarding inseason adjustments. This action applies to Atlantic tunas General category permitted vessels and to Highly Migratory Species Charter/Headboat category permitted vessels when fishing commercially for BFT.
Effective June 1, 2012, through August 31, 2012.
Sarah McLaughlin or Brad McHale, 978–281–9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
The 2012 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2012. The General category season, which was open January 1 through January 22, 2012, resumes on June 1, 2012, and continues through December 31, 2012. Unless changed, the General category daily retention limit would be the default retention limit of one large medium or giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or greater) per vessel per day/trip (§ 635.23(a)(2)). This default retention limit applies to General category permitted vessels and to HMS Charter/Headboat category permitted vessels when fishing commercially for BFT. Each of the General category time periods (January, June–August, September, October–November, and December) is allocated a portion of the annual General category quota.
For the 2011 fishing year, NMFS adjusted the General category limit from the default level of one large medium or giant BFT as follows: Two large medium or giant BFT for the January subquota period (75 FR 79309, December 20, 2010); three large medium or giant BFT for June through November 5 (76 FR 32086, June 3, 2011; and 76 FR 52886, August 24, 2011); and two large medium or giant BFT for November 6 through December 31, 2011 (76 FR 69137, November 8, 2011). The November 2011 adjustment was in conjunction with an inseason quota transfer of 50 mt from the Reserve category to the General category. NMFS adjusted the limit for the 2012 January subquota period from the default level of one large medium or giant BFT to two large medium or giant BFT (76 FR 76900, December 9, 2011). That retention limit was effective from January 1, 2012, until January 22, 2012, when NMFS closed the fishery because the January subquota had been met (77 FR 3637, January 25, 2012).
The 2010 ICCAT recommendation regarding western BFT management resulted in baseline U.S. quotas for 2011 and for 2012 of 923.7 mt (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). Consistent with the allocation scheme established in the Consolidated HMS FMP and implementing regulations, the baseline 2012 General category share is 435.1 mt, and the baseline June through August General category subquota is 217.6 mt. Although NMFS has published proposed quota specifications for 2012 (77 FR 15712, March 16, 2012), the baseline General category subquota as codified would not be changed. NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.
Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of five per vessel based on consideration of the relevant criteria provided under § 635.27(a)(8), which include: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal BFT distribution, abundance, or migration patterns; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; and review of dealer reports, daily landing trends, and the availability of the BFT on the fishing grounds.
NMFS has considered these criteria and their applicability to the General category BFT retention limit for the June–August 2012 General category fishery. These considerations include, but are not limited to, the following. Biological samples collected from BFT landed by General category fishermen and provided by BFT dealers, continues to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. As this action would be taken consistent with the quotas previously established and analyzed in the 2011 BFT quotas final rule (76 FR 39019, July 5, 2011), and consistent with objectives of the Consolidated HMS FMP, it is not expected to negatively impact stock health. A principal consideration is the objective of providing opportunities to harvest the full June-August subquota without exceeding it based upon the Consolidated HMS FMP goal: “Consistent with other objectives of this FMP, to manage Atlantic HMS fisheries for continuing optimum yield so as to provide the greatest overall benefit to the Nation, particularly with respect to food production, providing recreational opportunities, preserving traditional fisheries, and taking into account the protection of marine ecosystems”. Migration of commercial-size BFT to the fishing grounds off the northeast U.S. coast is anticipated by early June. Lastly, based on General category landings rates during the June through August time-period over the last several years, it is highly unlikely that the June through August subquota will be filled
A lower limit could result in unused quota being added to the later portion of the General category season (
Based on these considerations, NMFS has determined that a three-fish General category retention limit is warranted. It would provide a reasonable opportunity to harvest the U.S. quota of BFT without exceeding it, while maintaining an equitable distribution of fishing opportunities, to help achieve optimum yield in the General category BFT fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the Consolidated HMS FMP. Therefore, NMFS increases the General category retention limit from the default limit to three large medium or giant BFT per vessel per day/trip, effective June 1, 2012, through August 31, 2012.
Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the daily limit of three fish may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, and applies to those vessels permitted in the General category, as well as to those HMS Charter/Headboat permitted vessels fishing commercially for BFT.
NMFS will continue to monitor the BFT fishery closely through the mandatory dealer landing reports, which NMFS requires to be submitted within 24 hours of a dealer receiving BFT. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas.
Closures or subsequent adjustments to the daily retention limits, if any, will be published in the
The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
The regulations implementing the Consolidated HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement these retention limits is impracticable as NMFS needs to wait until it has necessary data and information about the fishery before it can select the appropriate retention limit for a time period prescribed by regulation. By the time NMFS has the needed data, implementing the retention limit following a public comment period would preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria. Analysis of available data shows that the General category BFT retention limits may be increased with minimal risks of exceeding the ICCAT-allocated quota.
Delays in increasing these retention limits would adversely affect those General and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one BFT per day/trip and may exacerbate the problem of low catch rates and quota rollovers. Limited opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen that depend upon catching the available quota within the time periods designated in the Consolidated HMS FMP. Adjustment of the retention limit needs to be effective June 1, 2012, or as soon as possible thereafter, to minimize any unnecessary disruption in fishing patterns, to allow the impacted sectors to benefit from the adjustment, and to not preclude fishing opportunities for fishermen who have access to the fishery only during this time period. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For these reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.
This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule for the 2012 Pacific whiting fishery under the authority of the Pacific Whiting Act of 2006, the Pacific Coast Groundfish Fishery Management Plan (PCGFMP), and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This final rule establishes: The tribal allocation of 48,556 metric tons of Pacific whiting for 2012; provisions associated with the reapportionment of unused tribal whiting to the non-tribal fishery in 2012; and final allocations of Pacific whiting to the non-tribal sector for 2012.
Effective May 11, 2012.
Kevin C. Duffy (Northwest Region, NMFS), phone: 206–526–4743, fax: 206–526–6736 and email:
This final rule is accessible via the Internet at the Office of the Federal Register's Web site at
Copies of the final environmental impact statement (FEIS) for the 2011–2012 Groundfish Specifications and Management Measures are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE. Ambassador Place, Portland, OR 97220, phone: 503–820–2280.
Copies of additional reports referred to in this document may also be obtained from the Council. Copies of the Record of Decision (ROD), final regulatory flexibility analysis (FRFA), and the Small Entity Compliance Guide are available from William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115–0070.
This rule announces the Total Allowable Catch (TAC) for whiting. This is the first year that the TAC for Pacific whiting is being determined under the terms of the Pacific Hake/Whiting Agreement with Canada (the Agreement) and the Pacific Whiting Act of 2006 (the Whiting Act), 16 U.S.C. 7001–7010. The Agreement and the Act establish bilateral bodies to implement the terms of the Agreement, each with various responsibilities, including: The Joint Management Committee (JMC), which is the decision-making body; the Joint Technical Committee (JTC), which conducts the stock assessment; the Scientific Review Group (SRG), which reviews the stock assessment; and the Advisory Panel (AP), which provides stakeholder input to the JMC (The Agreement, Art. II–IV; 16 U.S.C. 7001–7005). The Agreement establishes a default harvest policy (F–40 percent with a 40/10 adjustment) and allocates 73.88 percent of the TAC to the United States and 26.12 percent of the TAC to Canada. The bilateral JMC is primarily responsible for developing a TAC recommendation to the Parties (United States and Canada). The Secretary of Commerce, in consultation with the Secretary of State, has the authority to accept or reject this recommendation.
The JTC met three times over the last six months to prepare the stock assessment for 2012. Although the stock assessment and review was carried out with very little controversy, the 2011 acoustic survey was the topic of considerable discussion, particularly by the advisory panel members. The acoustic survey includes an index of abundance and age-compositions from 1995, 1998, 2001, 2003, 2005, 2007, 2009, and 2011. The 2011 index was the lowest of the time series, and had the second highest coefficient of variation. The stock assessment was updated in several ways this year (e.g. new version of the Stock Synthesis model, updating the historical data, updating of the 2010 and 2011 age compositions) but these did not result in a noticeable change from the prior assessment. However, adding the 2011 acoustic survey data resulted in a significant decrease in estimated current abundance from the prior assessment.
The SRG met in Seattle, Washington, from February 21–24, 2012, to review the draft stock assessment document prepared by the JTC. The SRG concluded that the current modeling approach, which implements a relatively simple base case in the Stock Synthesis model and sensitivity runs in another model, was pragmatic and conservative and resulted in a base-case assessment model whose sensitivities were thoroughly examined. The SRG concurred with the JTC perspective that the 2011 survey estimate of stock biomass is considerably lower than the 2009 survey estimate, which results in a lower estimate of terminal stock abundance from the 2012 assessment, along with correspondingly higher estimates of recent exploitation rates. The estimate of spawning stock abundance at the start of 2012 is at 33 percent of the unfished equilibrium level, which is near the long-term average expected when fishing at the default harvest rate but below the management target of 40 percent of the unfished equilibrium level. The SRG suggested precaution in setting the 2012 TAC for Pacific whiting.
The assessment from the JTC indicated that the default harvest rate could result in a stable or increasing biomass in the short term. Specifically, the assessment revealed that application of the default harvest rate for this year's fishery would result in a 50 percent probability that the median estimate of spawning stock abundance at the start of 2013 would be 34 percent of the unfished equilibrium level, a slight increase from 2012.
At its March 14–15, 2012 meeting, the JMC reviewed the advice of the JTC, SRG, and AP and agreed on a TAC recommendation for transmittal to the Parties. The JMC recommended reducing the TAC but allowing carryover such that the projected total mortality would be equal to the default harvest rate, which is inherently precautionary because of the 40–10 adjustment. This recommendation for an adjusted United States TAC of 186,037 metric tons (mt) for 2012 is consistent with the best available science, provisions of the Agreement, and the Whiting Act. The recommendation was transmitted via letter to the Parties on March 23, 2012. NMFS, under delegation of authority from the Secretary of Commerce, approved the TAC recommendation of 186,037 mt for U.S. fisheries on April 18, 2012.
This final rule establishes the tribal allocation of Pacific whiting for 2012. NMFS issued a proposed rule for the allocation and management of the 2012 tribal Pacific whiting fishery and reapportionment provisions on February 22, 2012 (77 FR 10466). This action finalizes the allocation and management measures.
Since 1996, NMFS has been allocating a portion of the U.S. OY (now TAC) of Pacific whiting to the tribal fishery using the process established in 50 CFR 660.50(d)(1). The tribal allocation is subtracted from the total U.S. Pacific whiting TAC and the remainder, less a deduction of 2,000 mt for research and bycatch in non-groundfish fisheries, is allocated to the non-tribal sectors. The tribal Pacific whiting fishery is managed separately from the non-tribal whiting fishery, and is not governed by the limited entry or open access regulations or allocations.
The proposed rule stated that at the time it was published, only the Makah Tribe had expressed an intent to participate in the 2012 fishery and requested 17.5% of the U.S. TAC. Thus, the proposed rule described the tribal allocation as 17.5% of the range within which the TAC would likely fall (16,970 to 50,908 mt, based on a range for the TAC of 96,969 mt to 290,903 mt). During the comment period on the proposed rule, the Quileute Tribe informed NMFS of its intent to participate in the 2012 fishery, and requested 16,000 mt to facilitate the participation of two Quileute boats in the fishery.
The tribal allocation in this final rule is 48,556 mt (17.5 percent of the U.S. TAC or 32,556 mt, plus 16,000 mt), which accounts for both tribal requests. While this amount constitutes a larger proportion of the U.S. TAC than was anticipated in the proposed rule (26% rather than 17.5%), it falls within the range of potential tribal allocations described in that rule. Accounting for both tribal requests in the tribal allocation is necessary to allow for the exercise of the treaty right. While the amount of the treaty right has not yet been determined, and new scientific
The Quileute Tribe submitted its letter to NMFS regarding the 2012 whiting fishery to the Council, which included the letter in the briefing book for its April 2012 meeting. This information was therefore available to the public, and there was some discussion of the letter during Council deliberations at the April meeting.
In order to ensure that this rule is published before the start of the whiting fishery, and to allow for full exercise of the treaty fishing right, NMFS is publishing the tribal allocation as a final rule.
As with prior tribal whiting allocations, this final rule is not intended to establish any precedent for future Pacific whiting seasons, or for the long-term tribal allocation of whiting. Rather, this rule adopts an interim allocation, pending the determination of the long-term treaty amount. That amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal tribes and States of Washington and Oregon. This process, begun in 2008, is continuing.
This final rule establishes regulatory provisions allowing NMFS to reapportion whiting from the tribal allocation to the non-tribal sectors if it appears that the tribal fishery will not use its full allocation. These basic provisions are not changed from the proposed rule, and are discussed in more detail in the preamble to that rule; as discussed below, this rule modifies the reapportionment procedures in consideration of comments received.
The 2012 fishery harvest guideline (HG) for Pacific whiting is 135,481 mt. This amount was determined by deducting from the total U.S. TAC of 186,037 mt, the 48,556 mt tribal allocation, along with 2,000 mt for research catch and bycatch in non-groundfish fisheries. Regulations at 50 CFR 660.55(i)(2) allocate the fishery HG among the non-tribal catcher/processor, mothership, and shorebased sectors of the Pacific whiting fishery. The catcher/processor sector is allocated 34 percent (46,064 mt for 2012), the mothership sector is allocated 24 percent (32,515 mt for 2012), and the shorebased sector is allocated 42 percent (56,902 mt for 2012). The fishery south of 42° N. lat. may not take more than 2,845 mt (5 percent of the shorebased allocation) prior to the start of the primary Pacific whiting season north of 42° N. lat.
The 2012 allocations of Pacific Ocean perch, canary rockfish, darkblotched rockfish, and widow rockfish to the whiting fishery were published in a final rule on December 13, 2011 (76 FR 77415). The allocations to the Pacific whiting fishery for these species are described in § 660.55(c)(1)(i) and in Table 1b, subpart C.
On February 22, 2012, NMFS issued a proposed rule for the allocation and management of the 2012 tribal Pacific whiting fishery and reapportionment of unused Pacific whiting from the tribal to the non-tribal fishery. The comment period on the proposed rule closed on March 23, 2012. During the comment period, NMFS received ten letters of comment. The U.S. Department of the Interior submitted a letter of “no comment” associated with their review of the proposed rule. Letters were received from the Quileute Tribe, three commercial fishing organizations, one association that represents Native Americans, and two individuals. Comments received on the proposed rule for the 2012 tribal Pacific whiting fishery are addressed below.
From the late 1990's through 2010, NMFS' regulatory authority to reapportion Pacific whiting from the tribal to the non-tribal fishery existed under 50 CFR 660.323(c), and NMFS exercised this authority in coordination with the coastal tribes to the extent practicable. During the development of Amendment 20 to the Pacific Coast Groundfish Management Plan for the trawl rationalization program, the Pacific Fishery Management Council (Council) selected an option that precluded any rollover or reapportionment of Pacific whiting between the non-tribal sectors as well as between the tribal and non-tribal fishery, so no mechanism was in place in 2011 for reapportionment of unused whiting. However, through further Council consideration and discussion with NMFS, the Council encouraged NMFS to reinstate regulatory provisions authorizing the reapportionment of whiting from the tribal to the non-tribal sector for 2012 and beyond. Through this rulemaking, NMFS is reinstating the
While whiting clearly have a different life history than salmon, the statement that whiting “live to swim another day,” suggesting that fish not caught in a given year are available to the fishery in subsequent years, is not fully supported by the available scientific information regarding whiting. The population of Pacific whiting in any year is made up of multiple year classes. However, by age-5, the loss of animals to natural mortality outweighs the effects of individual fish growth on the overall biomass because as a cohort ages the fish suffer the same natural mortality rate of 20 percent per year, but are growing at a slower rate per year. The harvestable amount of whiting fluctuates significantly from one year to the next, as the difference between the 2011 whiting OY and the 2012 whiting TAC demonstrates. Thus fish not caught in a given year do not necessarily contribute to the fishery in subsequent years.
In November 2011 the Council further discussed reapportionment of Pacific whiting allocated to the tribes under Agenda E.2. At that time the Council and its advisory bodies identified the importance of reinstating the reapportionment provision. At this same meeting NMFS indicated that the agency's independent authority under the Magnuson-Stevens Act would be used for the development of a rulemaking that would reinstate reapportionment provisions similar to those that were in place prior to the implementation of PCGFMP Amendments 20 and 21. The action by NMFS was in response to comments received on the Pacific whiting harvest specifications in 2011 (76 FR 28897; May 19, 2011) and input from the Council and its advisory body on this issue at the November 2011 meeting and earlier meetings. NMFS believes that the Council record supports this action (See April, 2011 Agenda item I.6.B; June, 2011 Agenda Item E.6.b; September, 2011 Agenda Item G.8.b; and, November, 2011 Agenda item E.2.f).
Without reapportionment provisions there is a high likelihood that whiting harvest will be foregone which is inconsistent with National Standard 1 of the Magnuson-Stevens Act. Having the ability to reapportion the Pacific whiting allocated to the tribes allows for attainment of the Pacific whiting OY.
NMFS manages groundfish fisheries under the guidance of the PCGMP and the Magnuson-Stevens Fishery Conservation and Management Act National Standards. Obtaining the optimum yield from the fishery is an important consideration in the development of fishing regulations as described in the Magnuson Stevens Act, National Standard Guidelines, and PCGFMP. National Standard 1 states that “Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. The PCGFMP Goals and objectives include Management Goal 2—Economics, which is to maximize the value of the groundfish resource as a whole; and, Goal 3—Utilization, which is to achieve the maximum biological yield of the overall groundfish fishery, promote year-round availability of quality seafood to the consumer, and promote recreational fishing opportunities. NMFS also recognizes that fishing regulations must be consistent with the tribes' treaty fishing rights. NMFS believes that this action allows for the full exercise of the treaty fishing right while also being consistent with the National Standards expressed in the Magnuson Act.
Ex-vessel value is generally defined as the payments that fishermen receive for the fish, shellfish, and other aquatic plants and animals when landed at the dock. For the analysis, various levels of whiting harvests were converted into ex-vessel values using the ex-vessel prices developed by Pacific States Marine Fisheries Commission's Pacific Fisheries Information Network (PacFIN) database. (See for example:
In consideration of the extent of description of Treaty Fisheries, Quileute were not consulted regarding the information included in this report. The processes and guidelines that underlie the development of analyses to support Executive Order 12866 and the RFA do not require NMFS to consult directly with each affected party. Information used for the analysis were based on Council documents or on data reported in the Pacific States Marine Fisheries Commission PacFIN database. One of the purposes of the notice and comment processes with federal rulemaking is to provide the public, including affected entities, an opportunity to review regulations and supporting analysis. Reviewers are welcome to submit additional information relevant to the analysis. To the extent the Quileute have provided additional information, this is discussed in these responses to comments.
NMFS is not extending the public comment period. NMFS provided a 30-day comment period and promptly provided a copy of the RIR/IRFA upon request. Extending the comment period would cause a delay in the start of the fishery (May 15, 2012) which would cause hardship on the non-tribal fishery and possibly affect the ability to harvest the allocations. In the future, NMFS will list the preparer and post the economic analyses on its Web sites along with the regulations.
Commenter is also referring to the following provision of the Pacific whiting treaty:
“If, in any year, a Party's catch is less than its individual TAC, an amount equal to the shortfall shall be added to its individual TAC in the following year, unless otherwise recommended by the JMC. Adjustments under this sub-paragraph shall in no case exceed 15 percent of a Party's unadjusted individual TAC for the year in which the shortfall occurred.”
Such an adjustment was made for the 2012 fishery under the Treaty:
“Consistent with Article II 3.(e) of the Agreement, and after reviewing the advice of the Joint Technical Committee (JTC), the Scientific Review Group (SRG), and the Advisory Panel (AP), the JMC recommends a coastwide TAC of 192,746 metric tons (mt). Based on Article III 2. of the Agreement, the Canadian share of the coastwide TAC is 26.12 percent, or 50,345 mt, and the U.S. share is 73.88 percent, or 142,401 mt. Consistent with Article II 5.(b) of the Agreement, an adjustment (carryover from 2011) of 15,427 mt is added to the Canadian share, for an adjusted Canadian TAC of 65,772. In the same manner, an adjustment of 43,636 mt is added to the United States share, for an adjusted United States TAC of 186,037 mt. This results in a coastwide adjusted TAC of 251,809 mt for 2012, which is consistent with the default harvest rate of F–40 percent with a 40/10 adjustment identified in Article III 1. of the Agreement” (
NMFS believes that the estimate of unfished tribal Pacific whiting is valid
Current regulations contain a provision that prohibits transfers of quota pounds of any IFQ species into or out of a vessel account beginning on December 15. If reapportioned whiting to the shorebased IFQ sector is credited to QS accounts on December 1, a transfer of whiting quota pounds would need to concluded no later than 11:59 p.m. PST on December 14, which includes any initiation of a whiting transfer by QS account holder and acceptance of such whiting transfer by the vessel account holder.
There are four changes in the final rule that NMFS is implementing, based on comments received during the public comment period on the proposed rule, internal evaluation of procedures associated with reapportionment of Pacific whiting, and regulation housekeeping errors that were identified after publication of the proposed rule.
The first change is the final allocation to the tribal whiting fishery. Although the TAC for whiting for 2012 was not known when the proposed rule was published, NMFS stated that the tribal request was for 17.5 percent of the U.S. TAC. During the public comment period, the Quileute Tribal Council notified NMFS of their plans to participate in the fishery in 2012, with a request of 16,000 mt. The final rule has been modified to reflect this request.
The second change is to establish a final date of December 1 for any reapportionment decision by the Regional Administrator. This change was made in consideration of public comment as well as NMFS' assessment of internal procedures associated with managing the shorebased IFQ program.
The third change is associated with the Quota Share accounts for the shorebased trawl IFQ program, and how they will be managed. Under current regulations, all Quota Pounds and Individual Bycatch Quota must be transferred to one or more vessel accounts by September 1 of each year. In the proposed rule, if a reapportionment decision was made, NMFS was going to open the Quota Share account for a period of 30 days to enable the transfer of Pacific whiting Quota Pounds from a Quota Share account to a vessel account. Given that there may be one or more reapportionments of Pacific whiting under this final rule, NMFS has decided, for purposes of reapportionment of Pacific whiting, to modify the regulations to open the Quota Share account for Pacific whiting only from the time a reapportionment decision is made until December 14 at 11:59 p.m., rather than opening the Quota Share account for 30 days, as stated in the proposed rule. This change should facilitate Pacific whiting transactions in the shorebased IFQ program more efficiently, and this change will facilitate more effective management of the associated database by NMFS.
The fourth and final change occurs in § 660.55 paragraph (i) pertaining to the allocation of Pacific whiting to the commercial sectors. This paragraph incorrectly indicated that the commercial harvest guideline would be allocated among the three sectors. However, beginning in 2011 the term “fishery harvest guideline” was added to the regulations and is the value after deductions are made for catch during research, incidental open access fishery catch, Exempted fishing permit catch and tribal catch. For the purposes of housekeeping the term “commercial harvest guideline” is revised to fishery harvest guideline.
The final Pacific whiting specifications and management measures for 2012 are issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), and the Pacific Whiting Act of 2006, and are in accordance with 50 CFR part 660, subparts C through G, the regulations implementing the PCGFMP. NMFS has determined that this rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making the final determination, took into account the data, views, and comments received during the comment period.
NMFS has determined that the tribal whiting fishery, conducted off the coast of the State of Washington, is consistent, to the maximum extent practicable, with the approved coastal zone management program of the State of Washington. NMFS has also determined that the Pacific whiting fishery, both tribal and non-tribal, is consistent, to the maximum extent practicable, with approved coastal zone management programs for the States of Washington, Oregon, and California.
Pursuant to 5 U.S.C. 553(b)(3)(B), the Assistant Administrator, NMFS, finds good cause to waive prior public notice and comment on the 2012 Pacific whiting specifications, as delaying this rule would be contrary to the public interest. The annual harvest specifications for Pacific whiting must be implemented by the start of the primary Pacific whiting season, which begins on May 15, 2012, or the primary whiting season will effectively remain closed. The PCGFMP requires that fishery specifications be evaluated periodically using the best scientific information available; however, Pacific whiting differs from other groundfish species in that it has a shorter life span and the population fluctuates more swiftly. As a result, NMFS must use the most recent stock assessment for Pacific whiting when determining TACs.
Every year, NMFS conducts a Pacific whiting stock assessment in which U.S. and Canadian scientists cooperate. The 2012 stock assessment for Pacific whiting was prepared in early 2012, as the new 2011 data—including updated total catch, length and age data from the U.S. and Canadian fisheries, and biomass indices from the Joint U.S.-Canadian acoustic/midwater trawl surveys—were not available until January, 2012. Because of the delay in obtaining the best available data for the assessment, it would not possible to allow for notice and comment before the start of the Pacific whiting season on May 15.
A delay in implementing the Pacific whiting harvest specifications to allow for notice and comment would be contrary to the public interest because it would shorten the primary whiting season. A shorter season could prevent the tribal and non-tribal fisheries from attaining their 2012 allocations, which would result in unnecessary short-term adverse economic effects for the Pacific whiting fishing vessels and the associated fishing communities. To prevent these adverse economic effects and to allow the Pacific whiting season to start on time, it is in the public interest to waive prior notice and comment.
The Assistant Administrator, NMFS, also finds good cause to waive the 30-day delay in effectiveness for the 2012 Pacific whiting tribal allocations, reapportionment provisions, and non-tribal allocations of Pacific whiting pursuant to 5 U.S.C. 553(d)(3). A 30-day delay in implementing the Pacific whiting harvest specifications would further shorten the primary whiting season and could prevent the tribal and non-tribal fisheries from attaining their 2012 allocations, resulting in unnecessary short-term adverse economic effects for the Pacific whiting fishing vessels and the associated fishing communities. Waiving the 30-day delay in effectiveness will not have a negative impact on any entities, as there are no new compliance requirements or other burdens placed on the fishing community with this rule. Waiving the 30-day delay in effectiveness serves the best interests of the public because it will allow for the longest possible Pacific whiting fishing
The preamble to the proposed rule and this final rule serve as the small entity compliance guide required by Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. This action does not require any additional compliance from small entities that is not described in the preamble. Copies of this final rule are available from NMFS at the following Web site:
Rulemaking must comply with Executive Order (E.O.) 12866 and the Regulatory Flexibility Act (RFA). The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866.
The NMFS Economic Guidelines that describe the RFA and E.O. 12866 can be found at: (
The RFA can be found at 5 U.S.C. 601
Executive Order 12866 can be found at (
When an agency proposes regulations, the RFA requires the agency to prepare and make available for public comment an IRFA that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities. After the public comment period, the agency prepares a Final Regulatory Flexibility Analysis (FRFA) that takes into consideration any new information and public comments. This FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments, NMFS' responses to those comments, and a summary of the analyses completed to support the action. NMFS published the proposed rule on February 22, 2012 (77 FR 10648), with a comment period through March 23, 2012. An IRFA was prepared and summarized in the “Classification” section of the preamble to the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here. The FRFA describes the impacts on small entities, which are defined in the IRFA for this action and not repeated here. Analytical requirements for the FRFA are described in Regulatory Flexibility Act, section 304(a)(1) through (5), and summarized below. The FRFA must contain: (1) A succinct statement of the need for, and objectives of, the rule; (2) A summary of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) A description and an estimate of the number of small entities to which the rule will apply, or an explanation of why no such estimate is available; (4) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (5) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
This rule establishes the 2012 harvest specifications for Pacific whiting and the allocation of Pacific whiting for the Tribal Whiting Fishery. This rule will establish the interim 2012 tribal allocation of Pacific whiting, reinstate reapportionment provisions for unused tribal whiting, and establish 2012 allocations for the non-tribal sectors: catcher-processor, mothership, and shoreside.
There were several comments on the IRFA. Comments 8 and 9 are described and addressed above. Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts not in excess of $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. For marinas and charter/party boats, a small business is one with annual receipts not in excess of $7.0 million. The RFA defines small organizations as any nonprofit enterprise that is independently owned and operated and is not dominant in its field. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.
NMFS has reviewed analyses of fish ticket data and limited entry permit data, available employment data provided by processors, information on tribal fleets, and industry responses to a 2010 survey on ownership and has developed the following estimates for the whiting fishery. There are four affected components of this fishery: Shorebased whiting, mothership whiting, catcher-processor, and tribal. In the shorebased whiting fishery, quota shares of whiting were allocated to 138 entities, including ten shoreside processing companies. These entities can fish the quota pounds associated with their quota shares, transfer their quota pounds to others to fish, or choose not to fish their quota pounds. Whiting is landed as bycatch in other fisheries or as a target catch in the whiting fishery. To analyze the number of participants primarily affected by this rulemaking, targeted whiting trips are defined as landings that contained 5,000 pounds or more of whiting. During 2011, 62 vessels landed a total of about 200 million pounds of whiting. Of these vessels, only 26 vessels had landings greater than 5,000 pounds. Thirteen of these 26 vessels are “small” entities. These 26 vessels delivered their catch to 10 processing companies. These 10 processing companies, either through ownership or affiliation, can be organized into 6 entities. Four of these
There are no recordkeeping requirements associated with this final rule.
There are two key features of this rulemaking: Establishing the 2012 interim tribal allocation, and reinstatement of regulatory authority to reapportion whiting from the tribal to the non-tribal fishery. The basic alternatives are “No-Action” vs. the “Proposed Action”. The proposed allocation, based on discussions with the tribes at the time, was for NMFS to allocate 17.5 percent of the U.S. total allowable catch for 2012. NMFS did not consider a broad range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Consideration of amounts lower than the tribal requests is not appropriate because it could prevent exercise of the treaty fishing right. Based on the information available to NMFS, the tribal request is within their tribal treaty rights. A higher allocation would be, arguably, within the scope of the treaty right. However, a higher allocation may unnecessarily limit the non-tribal fishery. A no action alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2012, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribal treaty rights. Given that there is a tribal request for allocation in 2012, this alternative received no further consideration.
In response to a request from the Quileute Tribe submitted as a public comment on the proposed rule, (See comment 1 above), the tribal allocation was revised by 16,000 metric tons. Based on a U.S. TAC of 186,037 mt, the total tribal allocation is 48,556 mt, the set-aside for research catch and whiting bycatch in the non-groundfish fisheries is 2000 mt, and the non-tribal allocation is 135,481 mt. Based on the percentage shares established in the PCGFMP, the non-tribal allocation to the shoreside sector is 56,902 mt (42.0 percent), to the catcher-processor sector 46,064 mt (34.0 percent), and to the mothership sector 32,515 mt (24 percent). The average annual ex-vessel price for whiting is $229 per ton, yielding a total ex-vessel value of the TAC at $42.6 million.
The RIR/IRFA also analyzed two alternatives associated with reinstating the authority to reapportion unused Pacific whiting from the tribal fishery to the non-tribal fishery. The “No-Action” alternative is the authority not reinstated. The “Proposed” Alternative would be to reinstate the authority. The basis for reinstating this authority is found in the NMFS responses to comments 2 and 3 above. NMFS will continue to work with small entities such as the tribes to improve upon the reapportionment process as well with all entities via the Council.
This final rule directly regulates what entities can harvest whiting. This rule allocates fish between tribal harvesters (harvest vessels are small entities, tribes are small jurisdictions) and to non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries are a mixture of activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests are delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries. After a review of public comments, NMFS believes this rule will not adversely affect small entities and is likely to be beneficial to both small and large entities as it allows unharvested tribal fish to be harvested by non-tribal sectors.
No Federal rules have been identified that duplicate, overlap, or conflict with this action.
NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the PCGFMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the PCGFMP was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.
NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.
NMFS has reinitiated consultation on the fishery to address newly listed species including Pacific eulachon and green sturgeon, and other non-salmonid listed species (marine mammals, sea birds, and turtles). On February 9, 2012, NMFS Protected Resources Division issued a Biological Opinion (BO) pursuant to section 7(a)(2) of the Endangered Species Act (ESA) on the effects of the operation of the Pacific
On August 25, 2011, NMFS Sustainable Fisheries Division initiated consultation with U.S. Fish and Wildlife Service (USFWS) pursuant to section 7(a)(2) of the Endangered Species Act (ESA) on the effects of the operation of the Pacific coast groundfish fishery. The Biological Assessment (BA) was revised and re-submitted to USFWS on January 17, 2012. The BA concludes that the continued operation of the Pacific Coast Groundfish Fishery is likely to adversely affect short-tailed albatross; however, the level of take is not expected to reduce appreciably the likelihood of survival or significantly affect recovery of the species. The BA preliminarily concludes that continued operation of the Pacific Coast Groundfish Fishery is not likely to adversely affect California least terns, marbled murrelets, bull trout, and Northern or Southern sea otters. USFWS formally responded with a letter dated March 29, 2012 and advised NMFS that formal consultation has been initiated.
Impacts resulting from fishing activities proposed in this final rule are discussed in the FEIS for the 2011–12 groundfish fishery specifications and management measures. As discussed above, NMFS issued a biological opinion addressing impacts to ESA listed marine mammals. NMFS is currently working on the process leading to any necessary authorization of incidental taking under MMPA section 101(a)(5)(E).
Pursuant to Executive Order 13175, this final rule was developed after meaningful discussion and collaboration with tribal officials from the area covered by the PCGFMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this rule.
Fisheries, Fishing, Indian fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(f) * * *
(4)
(i) * * *
(2) The fishery harvest guideline for Pacific whiting is allocated among three sectors, as follows: 34 percent for the C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent for the Shore based IFQ Program. No more than 5 percent of the Shore based IFQ Program allocation may be taken and retained south of 42° N. lat. before the start of the primary Pacific whiting season north of 42° N. lat. Specific sector allocations for a given calendar year are found in Tables 1a through c and 2a through c of this subpart. Set-asides for other species for the at-sea whiting fishery for a given calendar year are found in Tables 1D and 2D of this subpart.
(d) * * *
(1) * * *
(i) Close an at-sea sector of the fishery when that sector's Pacific whiting allocation is reached, or is projected to be reached.
(ii) Close all at-sea sectors or a single sector of the fishery when a non-whiting groundfish species with allocations is reached or projected to be reached.
(iii) Reapportion unused allocations of non-whiting groundfish species from one at-sea sector of the Pacific whiting fishery to another.
(iv) Reapportionment of the unused portion of the tribal allocation of Pacific whiting to the IFQ, mothership and catcher processor Pacific whiting fisheries.
(v) Implement the Ocean Salmon Conservation Zone, described at § 660.131(c)(3), when NMFS projects the Pacific whiting fishery may take in excess of 11,000 Chinook within a calendar year.
(vi) Implement Pacific Whiting Bycatch Reduction Areas, described at § 660.131(c)(4), when NMFS projects a sector-specific bycatch limit will be reached before the sector's whiting allocation.
(2) Automatic actions are effective when actual notice is sent by NMFS. Actual notice to fishers and processors will be by email, Internet (
(h)
(2) The reapportionment of surplus whiting will be made effective immediately by actual notice under the automatic action authority provided at § 660.60(d)(1).
(3) Estimates of the portion of the tribal allocation that will not be used by the end of the fishing year will be based on the best information available to the Regional Administrator.
(d) * * *
(1) * * *
(ii)
(D) For the 2012 trawl fishery, NMFS will issue QP based on the following shorebased trawl allocations:
(3) * * *
(ii) * * *
(B) * * *
(
(
(
(
Office of the General Counsel, Department of Energy.
Request for information.
As part of its implementation of Executive Order 13563, “Improving Regulation and Regulatory Review,” issued by the President on January 18, 2011, the Department of Energy (Department or DOE) is seeking comments and information from interested parties to assist DOE in reviewing its existing regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed. The purpose of DOE's review is to make the agency's regulatory program more effective and less burdensome in achieving its regulatory objectives.
Written comments and information are requested on or before May 29, 2012.
Interested persons are encouraged to submit comments, identified by “Regulatory Burden RFI,” by any of the following methods:
That Department's plan for retrospective review of its regulations can be accessed at
Daniel Cohen, Assistant General Counsel for Legislation, Regulation, and Energy Efficiency, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW., Washington, DC 20585. Email:
On January 18, 2011, the President issued Executive Order 13563, “Improving Regulation and Regulatory Review,” to ensure that Federal regulations seek more affordable, less intrusive means to achieve policy goals, and that agencies give careful consideration to the benefits and costs of those regulations. To that end, the Executive Order requires, among other things, that:
• Agencies propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; and that agencies tailor regulations to impose the least burden on society, consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; and that, consistent with applicable law, agencies select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity).
• The regulatory process encourages public participation and an open exchange of views, with an opportunity for the public to comment.
• Agencies coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for businesses and the public.
• Agencies consider low-cost approaches that reduce burdens and maintain flexibility.
• Regulations be guided by objective scientific evidence.
Additionally, the Executive Order directs agencies to consider how best to promote retrospective analyses of existing rules. Specifically, agencies were required to develop a plan under which the agency will periodically review existing regulations to determine which should be maintained, modified, strengthened, or repealed to increase the effectiveness and decrease the burdens of the agency's regulatory program. DOE's plan can be accessed at
The Department is committed to maintaining a consistent culture of retrospective review and analysis. DOE will continually engage in review of its rules to determine whether there are burdens on the public that can be avoided by amending or rescinding existing requirements. To that end, DOE is publishing today's RFI to again explicitly solicit public input. In addition, DOE is always open to receiving information about the impact of its regulations. To facilitate both this RFI and the ongoing submission of comments, DOE has created a link on the Web page of DOE's Office of the General Counsel to an email in-box at
While the Department promulgates rules in accordance with the law and to the best of its analytic capability, it is difficult to be certain of the consequences of a rule, including its costs and benefits, until it has been tested. Because knowledge about the full effects of a rule is widely dispersed in society, members of the public are likely to have useful information and perspectives on the benefits and burdens of existing requirements and how regulatory obligations may be updated, streamlined, revised, or repealed to better achieve regulatory objectives, while minimizing regulatory burdens. Interested parties may also be well-positioned to identify those rules that are most in need of review and, thus, assist the Department in prioritizing and properly tailoring its retrospective review process. In short, engaging the public in an open, transparent process is a crucial step in DOE's review of its existing regulations.
The following list of questions is intended to assist in the formulation of comments and not to restrict the issues that may be addressed. In addressing these questions or others, DOE requests that commenters identify with specificity the regulation or reporting requirement at issue, providing legal citation where available. The Department also requests that the
(1) How can the Department best promote meaningful periodic reviews of its existing rules and how can it best identify those rules that might be modified, streamlined, expanded, or repealed?
(2) What factors should the agency consider in selecting and prioritizing rules and reporting requirements for review?
(3) Are there regulations that are or have become unnecessary, ineffective, or ill advised and, if so, what are they? Are there rules that can simply be repealed without impairing the Department's regulatory programs and, if so, what are they?
(4) Are there rules or reporting requirements that have become outdated and, if so, how can they be modernized to accomplish their regulatory objectives better?
(5) Are there rules that are still necessary, but have not operated as well as expected such that a modified, stronger, or slightly different approach is justified?
(6) Does the Department currently collect information that it does not need or use effectively to achieve regulatory objectives?
(7) Are there regulations, reporting requirements, or regulatory processes that are unnecessarily complicated or could be streamlined to achieve regulatory objectives in more efficient ways?
(8) Are there rules or reporting requirements that have been overtaken by technological developments? Can new technologies be leveraged to modify, streamline, or do away with existing regulatory or reporting requirements?
(9) How can the Department best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of existing regulations? Are there existing sources of data the Department can use to evaluate the post-promulgation effects of regulations over time? We invite interested parties to provide data that may be in their possession that documents the costs, burdens, and benefits of existing requirements.
(10) Are there regulations that are working well that can be expanded or used as a model to fill gaps in other DOE regulatory programs?
The Department notes that this RFI is issued solely for information and program-planning purposes. Responses to this RFI do not bind DOE to any further actions related to the response. All submissions will be made publically available on.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public meeting.
The U.S. Department of Energy (DOE) is holding a public meeting to provide a forum for manufacturers and test laboratories to discuss their respective interpretations of existing DOE test procedures, where they believe that the test procedures lack clarity, and to provide information for DOE to consider prior to publishing any proposed guidance to clarify the current test procedures for room air conditioners, residential dishwashers, and residential clothes washers.
DOE will hold a public meeting on June 1, 2012, beginning at 9:00 a.m. in Washington, DC.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E–089, 1000 Independence Avenue SW., Washington, DC 20585–0121. To attend, please notify Ms. Brenda Edwards at (202) 586–2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the public meeting should advise DOE as soon as possible by contacting Ms. Brenda Edwards at (202) 586–2945 to initiate the necessary procedures.
Additionally, DOE plans to conduct the public meeting via webinar. To participate via webinar, participants must sign up by following the instructions at
Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE–2J, 1000 Independence Avenue SW., Washington, DC 20585–0121. Phone: (202) 586–6590. Email:
Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94–163 (42 U.S.C. 6291−6309, as codified), established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances, including the residential room air conditioners, residential dishwashers, and residential clothes washers that are the focus of this notice.
Under EPCA, the program consists of four activities: (1) Testing; (2) labeling; (3) Federal energy conservation standards, and (4) certification, compliance, and enforcement. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for certifying to DOE that their products comply with applicable energy conservation standards adopted pursuant to EPCA and for representing the efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s)) Similarly, DOE must use these test procedures in any enforcement action to determine whether covered products comply with these energy conservation standards. (42 U.S.C. 6295(s))
DOE's existing test procedures for residential room air conditioners, residential dishwashers, and residential
DOE has received inquiries regarding the appropriate interpretation of various provisions of the current DOE test procedures. DOE has issued guidance documents on certain aspects of testing room air conditioners, residential dishwashers, and residential clothes washers. See
The Department is holding this public meeting and webinar to gather information regarding the current practices of manufacturer-run and private testing facilities. The Department seeks to understand how interested parties have interpreted test procedures provisions that they believe to be ambiguous absent DOE guidance. DOE plans to issue guidance, as needed and appropriate, to provide better consistency in the application of the test procedures and better clarity regarding how DOE conducts testing.
Discussion at the public meeting should focus on current test procedures (Appendices C, F, J1 and J2). Furthermore, while DOE seeks the views of all interested parties, this public meeting is not an appropriate forum for consensus building. The Department will take the information provided in the course of the public meeting into consideration when drafting DOE interpretive guidance.
In 2011, DOE launched a new Web site dedicated to DOE guidance:
DOE will conduct the public meeting in an informal, conference style. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by U.S. antitrust laws. A court reporter will record the meeting, after which a transcript will be placed on the DOE Web site and made available for purchase from the court reporter.
Anyone who wishes to participate in the public meeting, receive meeting materials, or be added to the DOE mailing list to receive future notices and information about room air conditioners, residential dishwashers, or residential clothes washers should contact Ms. Brenda Edwards at (202) 586–2945.
Small Business Administration.
Proposed rule.
The U.S. Small Business Administration (SBA) proposes to amend its regulations governing size and eligibility for the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs. This proposed rule would implement provisions of the National Defense Authorization Act for Fiscal Year 2012. The proposed rule addresses ownership, control and affiliation for participants in the SBIR and STTR Programs. This includes participants that are majority owned by multiple venture capital operating companies, private equity firms or hedge funds.
You must submit your comments on or before July 16, 2012.
You may submit comments, identified by RIN: 3245–AG46, by any of the following methods:
•
•
SBA will post all comments to this proposed rule on
Carl Jordan, Office of Size Standards, at (202) 205–6618, or Edsel Brown, Assistant Director, Office of Technology, at (202) 401–6365. You may also email questions to
On July 22, 1982, Congress enacted and the President signed into law the Small Business Innovation Development Act of 1982, Public Law 97–219 (codified at 15 U.S.C. 638), which established the Small Business Innovation Research (SBIR) Program. The statutory purpose of the SBIR Program is to stimulate technological innovation by strengthening the role of innovative small business concerns in Federally-funded research and research and development (R/R&D).
In 1992, Congress enacted the Small Business Technology Transfer Act of 1992 (STTR Act), Public Law 102–564 (codified at 15 U.S.C. 638). The STTR Act initially established the Small Business Technology Transfer (STTR) program as a pilot program that requires Federal agencies with extramural budgets for R/R&D in excess of $1 billion per fiscal year to enter into funding agreements with small business concerns that engage in a collaborative relationship with a research institution. The purpose of the STTR program is to stimulate a partnership of ideas and technologies between innovative small business concerns and research institutions. Congress amended the Small Business Act (Act) in 2001 and
On December 31, 2011, the President signed into law the National Defense Authorization Act for Fiscal Year 2012 (Defense Reauthorization Act), Public Law 112–81. Section 5001, Division E of the Defense Reauthorization Act contains the SBIR/STTR Reauthorization Act of 2011 (SBIR/STTR Reauthorization Act), which extends both the SBIR and STTR programs through September 30, 2017, increases the percentage of each participating agency's extramural budget allocated for the programs, and increases the SBIR and STTR Phase I and Phase II award levels. In addition to the above, the SBIR/STTR Reauthorization Act contains several provisions relating to businesses majority-owned by venture capital operating companies (VCOCs), hedge funds or private equity firms. Specifically, the SBIR/STTR Reauthorization Act provides that businesses majority-owned by VCOCs, hedge funds or private equity firms may participate in the SBIR Program, under certain conditions.
At the present time, SBA's size regulations, which address ownership and affiliation of SBIR participants, do not permit business concerns majority-owned by multiple venture operating companies, hedge funds or private equity firms to participate in the program. Consequently, the SBIR/STTR Reauthorization Act requires that SBA issue a proposed rule, within 120 days of enactment of the Act, amending 13 CFR 121.103 (relating to determinations of affiliation applicable to the SBIR Program) and 13 CFR 121.702 (relating to ownership and control and size for the SBIR Program) to address ownership, control, and affiliation for businesses that are owned in majority part by VCOCs, private equity firms or hedge funds. According to the statute, the regulations must also address domestic ownership of program participants.
As a result of the abbreviated time frame set forth in the SBIR/STTR Reauthorization Act by which SBA must issue a proposed rule, the Agency was unable to conduct public outreach prior to drafting and issuing this proposed rule. However, in addition to soliciting public comments on the proposed rule, SBA plans to conduct public outreach sessions following publication of the rule, such as town hall meetings and webinars, to gather additional input on these statutory provisions and SBA's proposed implementation. SBA will release more information about these public sessions later. The information will be available at
SBA is proposing to amend its regulations to address affiliation, ownership, and control of participants in the SBIR and STTR programs. Because these issues affect various parts of SBA's size regulations, SBA must propose amendments to several sections. In drafting these regulations, the SBA took into consideration recent Executive Orders issued by the President, including Executive Order 13563, issued on January 18, 2011. Executive Order 13563 explains that when drafting regulations, agencies must consider approaches that reduce burdens, maximize benefits and maintain flexibility; promote coordination, simplification, and harmonization; identify and assess available alternatives; and consider the costs of the regulations on the public.
SBA believes this proposed rule simplifies and streamlines the current ownership and affiliation criteria for the SBIR and STTR programs, while also ensuring that only domestic small businesses receive the benefits of these programs. Specifically, SBA's proposed rules provide a clear set of guidelines for small businesses to understand and a bright-line test by which small businesses can easily determine whether they meet the ownership, size and affiliation requirements of the programs.
When drafting the regulations, SBA considered the fact that the statutory provisions relating to majority ownership by VCOCs, hedge funds or private equity firms specifically apply to the SBIR Program. However, § 5104 of the SBIR/STTR Reauthorization Act permits a small business concern that received a Phase I award under the SBIR or STTR program to receive a Phase II award in either the SBIR or STTR program. Therefore, an SBIR Phase I awardee may be able to receive an STTR Phase II award. If that is the case, the eligibility rules of both programs should be the same and consistent. As a result, SBA's proposed amendments apply to both the SBIR and STTR programs.
The proposed amendments are set forth in a section-by-section analysis below. In each section, SBA has requested comments on specific issues. However, SBA welcomes comments on all issues arising from this proposed rule, including whether there are additional ways to simplify the current requirements, maximize benefits and increase flexibility for small businesses.
SBA is proposing to amend § 121.701, which states that the SBIR Programs of the agencies are subject to SBA's size determinations, to make it clear that the regulations apply to both the SBIR and STTR programs. In addition, SBA has added definitions applicable to the programs and set forth in statute to this section.
Section 5107(c)(3)(A) of the SBIR/STTR Reauthorization Act states that SBA's regulations addressing the participation of applicants majority-owned by multiple VCOCs, hedge funds, or private equity firms in the SBIR Program should address whether the applicant is owned by domestic business concerns. SBA therefore has proposed to define the term “domestic business concern.” In defining the term, SBA looked first at its regulations, which define the term “business concern or concern.” A “business concern or concern” eligible for SBA's programs is one that is for profit, has a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor. SBA proposes that a domestic business concern meet this definition.
However, SBA has proposed additional criteria that a “domestic business concern” must meet. SBA has proposed that for purposes of the SBIR and STTR programs, the domestic business concern must also be created or organized in the United States, or under the law of the United States or of any State. SBA believes that this proposed definition not only meets statutory requirements set forth in the Act but is straightforward and easy to understand.
When drafting the proposed definition of domestic business concern, SBA reviewed other regulations, such as those implementing the Buy American Act and Berry Amendment, to determine whether they define the term. We note that the Department of Defense Federal Acquisition Regulations Supplement (DFARS) defines the term “domestic concern” to mean a concern incorporated in the United States (including a subsidiary that is incorporated in the United States, even if the parent corporation is a foreign concern) or an unincorporated concern having its principal place of business in the United States.
In addition, SBA also considered whether it should include a requirement that to be considered a domestic business concern, more than 50% of the business must either directly or indirectly be owned by U.S. citizens, permanent resident aliens, or domestic corporations, partnerships or limited liability companies (LLCs). SBA did not propose this requirement in the definition of domestic business concern because we believe it adds an extra burden on the small business and an added complexity that is not necessary.
The definition proposed for the term “domestic business concern” has generally been utilized for SBA's programs for many years, and has ensured that domestic small business concerns receive the benefits of SBA's programs. However, SBA welcomes comments on whether the proposed definition of domestic business concern should include additional criteria to ensure that the business is truly a domestic concern. SBA also welcomes comments on whether it should adopt the more simplified definition of domestic concern used in the DFARS, which is discussed above.
In addition, the SBIR/STTR Reauthorization Act defines the terms VCOC, hedge fund and private equity firm. SBA has proposed incorporating those statutory definitions into the regulations.
SBA has also proposed to define the term “portfolio company” because the SBIR/STTR Reauthorization Act uses that term when referring to VCOCs, hedge funds and private equity firms, but does not define it. SBA is proposing to define the term “portfolio company” to mean any company owned by the VCOC, hedge fund or private equity fund. SBA reviewed the U.S. Department of Labor's definition for venture capital investment set forth in 29 CFR 2510.3–101(d)(3)(i), which defines the term as an investment in an operating company as to which the investor has or obtains management rights. However, SBA believes that the definition it has proposed is a simpler and easier definition to understand.
SBA welcomes comments on these proposed amendments.
SBA is proposing to amend 13 CFR 121.702 to address many of the amendments to the Small Business Act set forth in the SBIR/STTR Reauthorization Act of 2011. Specifically, SBA is proposing amendments to address ownership and control of SBIR and STTR participants.
The SBIR/STTR Reauthorization Act specifically permits, in certain instances, SBIR and STTR applicants that are majority-owned by multiple VCOCs, hedge funds or private equity firms to participate in the SBIR Program. Therefore, SBA has proposed amending its regulations to address this new statutory requirement.
In addition, when drafting the proposed rule, SBA reviewed its current regulations regarding eligibility for the programs. The current regulations state that an SBIR awardee must be a business concern that is at least 51% owned and controlled by U.S. citizens or permanent resident aliens or at least 51% owned and controlled by another business that is at least 51% owned and controlled by U.S. citizens or permanent resident aliens. SBA considered retaining this ownership and eligibility criterion since it clearly ensures that there is domestic ownership and control of SBIR and STTR participants. However, SBA believes this eligibility criterion may be too restrictive and fails to provide sufficient flexibility to small businesses when creating their ownership structure.
As a result, SBA has proposed that an SBIR and STTR applicant must be:
• More than 50% owned and controlled by U.S. citizens, permanent resident aliens, or domestic business concerns (the proposed definition of domestic business concern is explained above); or
• Majority-owned by multiple domestic VCOCs, hedge funds or private equity firms.
As set forth in the SBIR/STTR Reauthorization Act, no one domestic business concern that is a VCOC, hedge fund or private equity firm may own more than 50% of the SBIR or STTR participant. Further, if the SBIR or STTR participant is majority-owned by multiple VCOCs, hedge funds or private equity firms, then it would trigger certain statutory requirements.
The SBIR/STTR Reauthorization Act also requires SBA to consider whether an applicant should be a domestic entity itself as well as a direct or indirect subsidiary of a domestic entity. In other words, this statutory provision requires SBA to consider that while an applicant could be organized and located in the United States and therefore be domestic, it might be necessary to ensure that the applicant is also owned by U.S. citizens or domestic companies.
SBA believes that the ownership requirements proposed in this rule—that the SBIR and STTR participant must be more than 50% owned by U.S. citizens, permanent resident aliens or domestic business concerns—addresses the statutory recommendation concerning domestic-owned applicants. SBA also believes that its proposed definition of domestic business concern, discussed in the section above, addresses these statutory recommendations.
In sum, when determining eligibility for the program, the proposed rule would require the applicant to consider the following (in addition to the requirements relating to size and affiliation, etc.):
1. Is the concern more than 50% owned by a single domestic business concern that is a VCOC, hedge fund or private equity firm? If yes, then it is not eligible for the SBIR or STTR program.
SBIR Applicant is owned 80% by VCOC A, 10% by VCOC B and 10% by an individual. SBIR Applicant would
2. Is the concern more than 50% owned by one or more U.S. citizens, permanent resident aliens, or domestic business concerns? If yes, then it may be eligible for the SBIR or STTR program, unless it answered yes to Question No. 1.
SBIR Applicant is owned 40% by U.S citizens, 30% by domestic corporations, and 30% by a non-domestic corporation. The SBIR applicant would be more than 50% owned by U.S. citizens and domestic business concerns. SBIR Applicant meets the ownership criteria for the program.
STTR Applicant is owned 49% by a domestic VCOC, 2% by an individual who is a U.S. citizen and 49% by a non-domestic corporation. STTR Applicant would be more than 50% owned by U.S. citizens and a domestic business concern that is a VCOC. The domestic business concern that is a VCOC does not own more than 50% of the applicant. STTR Applicant meets the ownership criteria for the program.
3. Is the concern more than 50% owned by multiple domestic business concerns that are VCOCs, hedge funds, or private equity firms? If yes, then it may be eligible for the SBIR or STTR program unless answered yes to Question No. 1.
SBA believes that this proposed rule satisfies the requirements for ownership set forth in statute and, at the same time, provides a straight-forward and simplified method for determining eligibility. It also provides small business with the flexibility needed in structuring their business and obtaining capital and will ensure that innovation in the United States continues to grow and flourish.
However, SBA understands that there may be alternatives to the proposal and
Moreover, § 5107(c)(3)(B) of SBIR/STTR Reauthorization Act requires that under the already existing authority for SBA to establish size standards, 15 U.S.C. 632(a), SBA shall establish size standards for applicants that are majority-owned by VCOCs, hedge funds or private equity firms. The current size standard for SBIR and STTR applicants is 500 employees. This means that an applicant, including its affiliates, cannot have more than 500 individual employees on a full-time, part-time or other basis, and includes employees obtained from a temporary employee agency, professional employer organization and leasing concern. SBA uses the average number of the business concern's employees based upon the number of employees for each of the pay periods for the preceding completed 12 calendar months (
SBA has reviewed the 500-employee size standard and is not proposing any changes. The 500 employee size standard is the current size standard for all R&D North American Industry Classification System (NAICS) codes, including SBIR and STTR. For example, both NAICS 541711, Research and Development in Biotechnology, and NAICS 541712, Research and Development in the Physical, Engineering and Life Sciences (except Biotechnology) have 500 employee size standards.
SBA welcomes comments on these proposed amendments to the ownership and control regulations in § 121.701.
SBA's regulations, at § 121.103, address the principles of affiliation. Generally, affiliation exists when one business controls or has the power to control another or when a third party (or parties) controls or has the power to control both businesses. Control may arise through ownership, management, or other relationships or interactions between the parties. Affiliation is an important issue when determining size because SBA counts the receipts, employees, or other measure of the business, and includes those of all its domestic and foreign affiliates, regardless of whether the affiliates are organized for profit (13 CFR 121.103(a)(6)).
SBA's affiliation rules generally apply to all Federal programs for which a business must qualify as small, including SBA's Government Contracting or Business Development programs, small business loan programs and grant programs. Therefore, for purposes of the SBIR and STTR programs, an applicant for a Phase I and Phase II award must meet the 500 employee size standard, taking into consideration the employees of the applicant and all of the applicant's affiliates.
Section 5107(c)(3)(D) of the SBIR/STTR Reauthorization Act sets forth an outline for affiliation with respect to those applicants that are majority owned by VCOCs, hedge funds, or private equity firms, as well as any other business that the VCOC, hedge fund, or private equity firm has financed. After reviewing these statutory provisions, the purpose of the amendments to the SBIR and STTR programs, the purpose of the SBIR and STTR programs, and the overall goal of simplification and maximization of benefits for small businesses, SBA has proposed certain amendments to the current affiliation rules, solely with respect to these programs. As a result, SBA has proposed to address size and affiliation for the SBIR and STTR programs in § 121.702, and not in § 121.103, to avoid any confusion.
SBA believes that, in general, the principles of affiliation set forth in § 121.103 apply to the SBIR and STTR program. However, SBA believes that certain affiliation principles—such as those concerning minority stock holdings—are not necessarily applicable to SBIR or STTR applicants as a result of the general business structure and purpose of such business concerns. In addition, SBA sought to create a simple, bright-line test for SBIR and STTR applicants to apply when determining eligibility with respect to size and affiliation.
SBA's current principles of affiliation explain that if a business concern's stock is widely held and no single block of stock is large as compared to others, then the board of directors and President or Chief Executive Officer are deemed to control the business concern, unless they can present evidence showing otherwise. In addition, SBA's general principles of affiliation explain that if two or more persons own, control or have the power to control less than 50% of the concern's voting stock, but the blocks of stock are equal or approximately equal in size, then SBA presumes each person to control the business concern.
In this proposed rule, SBA has amended those principles solely for purposes of the SBIR and STTR program. Consequently, SBA's proposed rule explains that where an SBIR or STTR applicant's voting stock is widely held or two or more persons hold large blocks of voting stock but no one person owns more than 50% of the stock, then the board of directors controls the applicant. SBA believes that in these two instances (minority holdings are equal in size and voting stock is widely held), the investments are diffused. As a result, we believe that for purposes of the SBIR and STTR programs, control would rest with the board of directors since it is that body that is truly running the business.
SBA welcomes comments on this proposed rule as it relates to SBIR and STTR applicants where no one stockholder owns a majority of the applicant. For example, SBA welcomes comments on whether it should: (1) Retain the current affiliation rule with respect to minority stock holdings and if so, whether it should set forth a specific threshold by which it will find control and therefore affiliation (
SBA has also proposed to amend the current affiliation rules relating to identity of interest, for purposes of the SBIR and STTR programs only. Specifically, the proposed rule explains that SBA will presume affiliation based on an identity of interest between family members with identical or substantially identical business or economic interests.
SBA may also presume affiliation based on an identity of interest between business concerns that are economically dependent through contractual or other arrangements. For example, affiliation based on an identity of interest may arise if a business earns 70% of its revenues as a result of doing business with one other business concern. Affiliation based on an identity of interest may also arise where one business concern is dependent on loans supplied by another business, and the loans are made outside of arm's length transactions. Because it is not clear how often these types of situations arise for SBIR and STTR applicants, SBA requests comments on whether the
We note that § 5107(c)(3)(D) of the SBIR/STTR Reauthorization Act states that SBA may not determine that a portfolio company of the VCOC, hedge fund, or private equity firm is affiliated with an SBIR or STTR applicant based solely on one or more shared investors. Therefore, SBA has proposed that it will not find affiliation for an SBIR or STTR applicant with a portfolio company solely because of shared investors.
Consequently, SBA's proposed rule explains that it may find affiliation for SBIR or STTR applicants in one or more of the following situations:
1.
Individual A is the majority owner of SBIR Applicant B, Company C and Company D (54.5%, 81%, and 60%, respectively). Individual A has the power to control SBIR Applicant B, Company C and Company D. The companies are all affiliated. The number of employees of all will be aggregated in determining the size of the SBIR applicant.
2.
Domestic Business Concern A owns 20%, domestic VCOC B owns 20% and domestic VCOC C owns 20% of SBIR Application, Inc. The rest of the stock is widely held. The Board of Directors of the company controls the company for affiliation purposes.
3.
If VCOC A holds an option to purchase a controlling interest in Company B at the time it submits an offer for the SBIR Program, the situation is treated as though VCOC A had exercised its rights and had become owner of the controlling interests in Company B when it obtained the option.
4.
The managing member of SBIR Applicant LLC is the managing member of Company B. The two concerns are affiliated based on common management.
5.
SBIR Applicant A performs subcontracts for Company B, and Company B accounts for 90% of SBIR Applicant A's revenues. SBA may presume there is an identity of interest as a result of the economic dependence of the SBIR applicant on Company B and find affiliation between the two.
SBIR Applicant A is dependent on loans provided by Company B for survival. The loans were not supplied from Company B to Applicant through arm's length transactions. Instead, the loans were poorly documented and did not follow normal business practices. SBA may presume an identity of interest between Applicant A and Company B.
6.
7.
8.
9.
If SBA does find affiliation based upon one of the above with a VCOC, hedge fund, or private equity firm that owns a minority interest in the SBIR or STTR applicant, then § 5107(c) of the SBIR/STTR Reauthorization Act provides that the portfolio companies of the VCOC, hedge fund, or private equity firm will not be affiliated with the SBIR or STTR applicant unless: (1) the VCOC, hedge fund, or private equity firm owns a majority of the portfolio company; or (2) the VCOC, hedge fund, or private equity firm holds a majority of the seats on the board of directors of the portfolio company. SBA's proposed regulations set forth this statutory exception to affiliation for portfolio companies.
SBA specifically requests comments on these proposals for determining affiliation, including whether the proposed rules sufficiently prevent other-than-small businesses from controlling SBIR and STTR applicants and any other issues relating to affiliation not addressed by the proposed rule.
SBA's current regulations for the SBIR Program state that size and eligibility are determined at the time of award for both Phase I and Phase II awards. In drafting the proposed rule, SBA considered whether it should retain this current requirement or require the SBIR or STTR applicant to meet the size and eligibility requirements at the time of submission of the application, or at both time of application and award. SBA notes that for its government contracting programs, size is determined at the time of submission of an offer (which is equivalent to the time of application for the SBIR and STTR programs). SBA uses that date because it is a date certain—the small business knows when it will submit an offer and can therefore determine with some accuracy whether it will be small at that time.
SBA has proposed that for its SBIR and STTR programs it will determine size and eligibility of the concern at the time it submits an application in response to the SBIR or STTR solicitation or announcement and at the time of award. SBA believes that this would ensure that only eligible small businesses are considered for award and actually receive the award and it will help prevent fraud, waste and abuse of the program. SBA welcomes comments on the timing of size and eligibility determinations, and specifically on the requirement that SBA determine size and eligibility of a small business concern at the time it submits an application in response to the SBIR or STTR solicitation or announcement and at the time of award.
SBA welcomes comments on any impact the proposed change may have on the SBIR and STTR programs.
Section 5107 of the SBIR/STTR Reauthorization Act requires that all small business concerns that are majority-owned by multiple VCOCs, hedge funds, or private equity firms and qualified for participation must register with SBA prior to or on the date that it submits an application in response to an SBIR solicitation or announcement. In addition, the new statutory provisions require that such small businesses indicate in any SBIR proposal that they have completed this registration. SBA has proposed to amend this section of the regulations to address these new requirements.
SBA notes that, at this time, it is considering at least two options with respect to the registration requirement. SBA will need to either maintain a separate registration for purposes of the SBIR and STTR programs only, or it will amend its current Dynamic Small Business Search (DSBS) system to see whether it can use DSBS as its registry. SBA is studying the anticipated costs and timelines for completion of this registry, but welcomes comments on these and other possible options.
Section 5107 (a) of the SBIR/STTR Reauthorization Act states that certain “covered small business concerns” are eligible to receive SBIR awards, without regard to whether the covered small business concern meets the requirements for receiving an award under the SBIR Program at the time of award if an agency took longer than 9 months from the date applications were due to issue an award. A covered small business concern is one that was not majority-owned by a VCOC, hedge fund, or private equity firm at the time of submission of a Phase I or Phase II application (and therefore did not register), but that was majority-owned on the date of award.
The proposed regulations address covered small business concerns and explain that if a small business concern did not register as majority-owned by VCOCs, hedge funds or private equity firms at the time of application, it must notify the funding agreement officer if, on the date of award, the concern is more than 50% owned by multiple VCOCs, hedge funds, or private equity firms.
The SBA notes that the funding agency needs this information because the statute states that if the agency made its award on or after the date that is 9 months from the end of the period for submitting applications under the SBIR or STTR solicitation, that small business concern would be eligible to receive the award without regard to the fact that it is more than 50% owned by multiple VCOCs, hedge funds, or private equity firms at the time of award.
In addition to registration requirements, § 5143 of the SBIR/STTR Reauthorization Act requires each applicant that receives SBIR or STTR funding to certify that it is in compliance with the laws relating to the program. SBA's Administrator is required to develop, in consultation with the Council of Inspectors General on Integrity and Efficiency, the procedures and requirements for this certification after providing notice of and an opportunity for public comment on such procedures and requirements. SBA is therefore requesting public input on whether the current self-certification requirement set forth in § 121.705 is sufficient,
Further, as discussed above, SBA has proposed that the certification on eligibility (size and ownership) will occur at the time of submission of the offer or application and at the time of award. However, some have argued that these representations are necessary throughout the life of the SBIR or STTR award. As a result, SBA requests specific comment on whether the small business should also be required to represent its status at certain points in time after award, including at the time of final payment or final award allotment.
For example, with respect to small business status for government contracting (other than the SBIR Program), a small business represents its status at the time of offer only and size is determined at that time. The small business is permitted to grow to be other than small during the life of the contract and there is no need for it to re-represent its status on a particular contract. There are two exceptions to this general rule: (1) A small business must recertify its status if it has been acquired by or merged with another business concern; or (2) the contract is greater than five years. At those times, the small business must recertify its status and if it is no longer small, the contracting officer cannot count any options exercised or orders issued against the contract as an award to a small business. SBA requests comments on whether this policy and the procedures should be extended to the SBIR Program.
Section 121.1001(a)(4) sets forth who may initiate a size protest or request a formal size determination. For purposes of the SBIR Program and STTR Program, the regulations state that a prospective offeror, the funding agreement officer, the responsible SBA Government Contracting Area Director or the Division Chief, Office of Innovation may file a protest. SBA has proposed amending this section to state that a current offeror and the Associate Administrator, Investment Division may file a protest. These proposed changes correspond to the proposed change for when an applicant must be eligible for an award (at the time of submission of offer or application and at time of award) and the move of SBA's Office of Innovation to its Investment Division. SBA welcomes comments on these proposed changes.
SBA is proposing to amend this section to address when a protest may be filed by the contracting officer/funding agreement officer or SBA with respect to an SBIR or STTR award. The current regulations state that the contracting officer or SBA may file a protest in anticipation of an award. SBA proposes to amend this regulation to state that SBA or the contracting officer/funding agreement officer may file a protest at any time, as long as it is not premature. This means that SBA will not accept a size protest until the awardee has been selected and notified of the award, which is consistent with current practice for its contracting programs. SBA welcomes comments on this proposed change.
The SBIR/STTR Reauthorization Act has set forth specific provisions relating to affiliation, ownership and control of SBIR and STTR participants. These provisions open the door for more small businesses by providing them access to these programs. SBA has proposed amendments to its current regulations to implement these provisions (some amendments will have to be made to the policy directive, and not necessarily SBA's regulations). As such, SBA requests comments on each proposed amendment to the rule. We have noted above specific issues on which the agency would like to receive comments. However, SBA seeks comments on all aspects of this proposed rule.
OMB has determined that this rule is a significant regulatory action under Executive Order 12866; however this is not a major rule under the Congressional Review Act (CRA). The Regulatory Impact Analysis is set forth below.
This regulatory action implements the SBIR/STTR Reauthorization Act. Specifically, it implements § 5107 of the SBIR/STTR Reauthorization Act of 2011, which requires SBA to issue proposed regulations to amend 13 CFR 121.103 (relating to determinations of affiliation applicable to the SBIR Program) and 13 CFR 121.702 (relating to ownership and control and size for the SBIR Program) within 120 days of passage of the Reauthorization Act.
SBA's current regulations address affiliation, ownership and control for participants in the SBIR Program. However, the regulations do not provide specific guidance for the STTR program. In addition, the regulations must be amended to address the new statutory provisions relating to majority ownership by VCOCs, hedge funds or private equity firms; otherwise, the regulations and statute would conflict. Moreover, the SBIR/STTR Reauthorization Act requires that SBA issue a proposed, and then a final or interim final rule.
SBA considered numerous alternatives when drafting this regulation. SBA considered an alternative approach with respect to ownership by U.S. citizens. For example, SBA's current regulations state that to be eligible for the SBIR Program, the business must be 51% owned and controlled by U.S. citizens or permanent resident aliens, or 51% owned and controlled by another business that is 51% owned and controlled by U.S. citizens. The SBIR/STTR Reauthorization Act requires that SBA consider whether participants to the program are at least 51% owned and controlled by U.S. citizens, domestic VCOCs, hedge funds or private equity firms. SBA considered retaining its current regulation but believes the current regulation may be too restrictive. SBA's proposed regulation permits ownership and control by U.S. citizens, permanent resident aliens
In addition, SBA considered whether the statutory provisions relating to majority ownership by VCOCs, hedge funds, or private equity firms should also apply to STTR participants and not just SBIR participants. The SBIR/STTR Reauthorization Act is not clear on this point. However, the SBIR/STTR Reauthorization Act does permit participants in the STTR program to receive SBIR awards, and vice versa. As a result, it would seem necessary to apply the same rules for the SBIR Program to the STTR program.
Other examples of alternatives considered are discussed in the preamble above (
One potential benefit of the rule is to increase participation in the SBIR and STTR program by providing more businesses access to these programs. SBA believes this will increase competition, which will ultimately increase the quality of proposals and spur innovation. For example, in Fiscal Year (FY) 2010, agencies awarded 6,931 SBIR and STTR Phase I and Phase II awards for a total of over $2 billion. In FY 2003, however, agencies funded 7,419 awards for a total of over $1.8 billion. If you adjust the dollar figures for inflation, it would seem that there has been a decrease in SBIR and STTR Phase I and Phase II awards and funding. Likewise, in FY 2010, agencies awarded 4,777 Phase I SBIR and STTR awards for a total of over $596 million. In FY 2003, however, agencies funded 5,561 awards for a total of over $508 million. If you adjust the dollar figures for inflation, it would seem that there has been a decrease in Phase I SBIR and STTR awards and funding. Again, SBA anticipates that increasing competition will increase the number of awards and funding, as a result of higher quality proposals submitted.
There are a few anticipated costs with this proposed rule. The statute requires SBA to maintain a registry of businesses that are majority-owned by VCOCs, hedge funds or private equity firms. SBA will need to either maintain a separate system or will amend its current DSBS system and use it as its registry. This will result in a cost to SBA. Further, as a result of the anticipated increase in proposals for the SBIR/STTR program, we believe the agencies will have a need for additional staff. In addition, we anticipate there may be an increase in size protests, which will increase SBA's size specialists' current workload.
The SBIR/STTR Reauthorization Act of 2011 imposes a specific statutory deadline by which SBA must issue a proposed and a final regulation. Specifically, SBA is required to issue a proposed rule by April 29, 2012. Given the time needed to comply with various administrative rulemaking requirements, it was not practicable for SBA to hold public forums prior to issuing a proposed rule, as the executive order recommends, and still be able to meet the April 29th statutory deadline. However, SBA is considering holding such public forums (
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, eliminates ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
For the purposes of Executive Order 13132, SBA has determined that this proposed 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, SBA has determined that this proposed rule has no federalism implications warranting preparation of a federal assessment.
For purposes of the Paperwork Reduction Act (PRA), 44 U.S.C. Chapter 35, SBA has determined that this proposed rule will impose new reporting or recordkeeping requirements. Specifically, business concerns that are majority-owned by VCOCs, hedge funds or private equity firms must register their status in a database, as required by statute. However, because the detailed procedures for meeting this requirement will be outlined in the SBIR Policy Directive, and not the rule, SBA believes it would be more meaningful and less confusing for the small business community if SBA submits the information collection to OMB when the Policy Directives are submitted for review.
SBA has determined that this proposed rule may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601,
This regulatory action implements several sections of the SBIR/STTR Reauthorization Act. These sections of the SBIR/STTR Reauthorization Act address affiliation, ownership and control of SBIR and STTR program participants.
The objective of the rule is to implement these statutory changes by further defining terms and expanding on the concepts set forth in the SBIR/STTR Reauthorization Act.
The legal basis for this rule is the National Defense Authorization Act for Fiscal Year 2012, Section 5001, Division E (cited as the SBIR/STTR Reauthorization Act of 2011 or Reauthorization Act), Public Law 112–81.
In FY 2009, for the SBIR Program, agencies received 22,444 Phase I proposals and 3,352 Phase II proposals. In FY 2009, for the STTR program, agencies received 2,804 Phase I proposals and 467 Phase II proposals. Some of the proposals submitted were by the same small business. However, using these numbers, SBA estimates that approximately 24,000 businesses could be impacted by this proposed rule. This includes those businesses that are currently not eligible under SBA's existing regulations and will become eligible as a result of implementation of the SBIR/STTR Reauthorization Act, if this rule is adopted as proposed.
The proposed rule does provide that businesses will need to represent their size status at the time of initial offer and award. If there is a size protest, the small business will need to ensure it has business records that verify their small business status. These are the same documents that a business would keep in the normal course of its activities (stock certificates, by-laws etc.). The SBA has explained that there is a new reporting requirement for those businesses that are majority-owned by VCOCs, hedge funds or private equity firms. However, the SBA intends to address this reporting requirement and the database used for the reporting, when it amends the SBIR policy directive.
This proposed rule will conflict with current provisions in SBA's SBIR and STTR Policy Directives. As a result, those directives will need to be amended.
SBA discussed several alternatives in the preamble as well as the Regulatory Impact Analysis.
Administrative practice and procedure, Government procurement, Government property, Loan programs—business, Small businesses.
For the reasons stated in the preamble, SBA proposes to amend 13 CFR part 121 as follows:
1. The authority citation for 13 CFR part 121 is revised to read as follows:
15 U.S.C. 632, 634(b)(6), 638, 662, and 694a(9).
2. Amend § 121.103 as follows:
a. Add a new paragraph (a)(7); and
b. Add a new paragraph (b)(8).
(a) * * *
(7) For SBA's Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs, the bases for affiliation are set forth in § 121.702.
(b) * * *
(8) These exceptions to affiliation and any others set forth in § 121.702 apply for purposes of SBA's Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs.
3. Amend § 121.201 by revising paragraph (b) of footnote 11 at the end of the table “Small Business Size Standards by NAICS Industry,” to read as follows:
11. * * *
(a) * * *
(b) For purposes of the Small Business Innovation Research (SBIR) and the
4. Revise the undesignated center heading immediately preceding § 121.701 to read as follows:
5. Amend § 121.701 as follows:
a. Revise the section heading;
b. Revise paragraphs (a) and (b); and
c. Remove paragraph (c).
(a) These sections apply to SBA's SBIR and STTR programs, 15 U.S.C. § 638.
(b) Definitions.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
6. Revise § 121.702 to read as follows:
To be eligible for award of funding agreements in SBA's SBIR and STTR programs, a business concern must meet the requirements below at the time of submission of its initial proposal (or other formal response) to a Phase I or Phase II SBIR or STTR announcement or solicitation and at the time of award:
(a)
(1) An SBIR or STTR applicant must:
(i) Be a concern which is more than 50% directly owned and controlled by one or more individuals who are citizens of the United States or permanent resident aliens in the United States, or by domestic business concerns; or
(ii) Be a concern which is more than 50% owned by multiple domestic business concerns that are venture capital operating companies, hedge funds, private equity firms, or any combination of these domestic business concerns.
(2) No single venture capital operating company, hedge fund, or private equity firm may own more than 50% of the SBIR or STTR applicant.
(3) If an Employee Stock Ownership Plan owns all or part of the concern, SBA considers each stock trustee and plan member to be an owner.
(4) If a trust owns all or part of the concern, SBA considers each trustee and trust beneficiary to be an owner.
(b)
(c)
(1)
(2)
(i) Agreements to open or continue negotiations towards the possibility of a merger or a sale of stock at some later date are not considered “agreements in principle” and are thus not given present effect.
(ii) Options, convertible securities, and agreements that are subject to conditions precedent which are incapable of fulfillment, speculative, conjectural, or unenforceable under state or Federal law, or where the probability of the transaction (or exercise of the rights) occurring is shown to be extremely remote, are not given present effect.
(iii) An individual, concern or other entity that controls one or more other concerns cannot use options, convertible securities, or agreements to appear to terminate such control before actually doing so. SBA will not give present effect to individuals', concerns' or other entities' ability to divest all or part of their ownership interest in order to avoid a finding of affiliation.
(3)
(4)
(i) SBA may presume an identity of interest between family members with identical or substantially identical business or economic interests (such as
(ii) An SBIR or STTR applicant is not affiliated with a portfolio company of a venture capital operating company, hedge fund, or private equity firm, solely on the basis of one or more shared investors, though affiliation may be found for other reasons.
(5)
(6)
(7)
(8)
(9)
(i) The venture capital operating company, hedge fund, or private equity firm owns a majority of the portfolio company; or
(ii) The venture capital operating company, hedge fund, or private equity firms holds a majority of the seats of the board of directors of the portfolio company.
7. Revise § 121.704 to read as follows:
The size and eligibility status of a concern for the purpose of a funding agreement under the SBIR and STTR programs is determined as of the date the concern submits a written self-certification that it is small and meets the eligibility requirements of the program to the Federal agency as part of its initial proposal (or other formal response) to a Phase I or Phase II SBIR or STTR announcement or solicitation and at the time of award.
8. Revise § 121.705 to read as follows:
(a) In its initial proposal (or other formal response) to a Phase I or Phase II SBIR or STTR announcement or solicitation, and at the time of award, a business concern must self-certify that it currently meets the eligibility requirements set forth in § 121.702 of this title.
(b) In addition, a small business concern that is more than 50% owned by multiple venture capital operating companies, hedge funds, or private equity firms must be registered with SBA as of the date it submits its initial proposal (or other formal response) to a Phase I or Phase II SBIR or STTR announcement or solicitation. The concern must indicate in any SBIR or STTR proposal or application that it is registered with SBA as majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms.
(c) A small business concern that was not subject to the requirements of paragraph (b) at the time of its SBIR proposal or application must notify the funding agreement officer if, on the date of award, the concern is more than 50% owned by multiple venture capital operating companies, hedge funds, or private equity firms. If the agency made award on or after the date that is 9 months from the end of the period for submitting applications under the SBIR solicitation, the concern is eligible to receive the award without regard to whether it meets the requirements for receiving an award as a small business concern that is more than 50% owned by multiple venture capital operating companies, hedge funds, or private equity firms at the time of award, if the concern meets all other requirements for the award.
(d) A funding agreement officer may accept a concern's self-certification as true for the particular funding agreement involved in the absence of a written protest by other offerors or other credible information which would cause the funding agreement officer or SBA to question the size or eligibility of the concern.
(e) Procedures for protesting an offeror's self-certification are set forth in §§ 121.1001 through 121.1009. In adjudicating a protest, SBA may address both the size status and eligibility of the SBIR or STTR applicant.
9. Amend § 121.1001 by revising paragraph (a)(4) as follows:
(a) * * *
(4) For SBA's Small Business Innovation Research (SBIR) Program and Small Business Technology Transfer (STTR) Program, the following entities may protest:
(i) An offeror or applicant;
(ii) The funding agreement officer;
(iii) The responsible SBA Government Contracting Area Director; the Director, Office of Government Contracting; or the Associate Administrator, Investment Division; and
(iv) Any other offeror or applicant for that solicitation.
10. Amend § 121.1004 by revising paragraph (b) as follows:
(b)
11. Amend § 121.1008 by revising the fourth sentence of paragraph (a) to read as follows:
(a) * * * If the protest pertains to a requirement involving SBA's SBIR Program or STTR Program, the Area Director will also notify the Associate Administrator, Investment Division. * * *
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Tamarack Aerospace Group's modification to the Cirrus Model SR22 airplane. This airplane as modified by Tamarack will have a novel or unusual design feature(s) associated with Tamarack Aerospace Group's modification. The design change will install winglets and an Active Technology Load Alleviation System (ATLAS). The addition of the ATLAS mitigates the negative effects of the winglets by effectively aerodynamically turning off the winglet under limit gust and maneuver loads. This is accomplished by measuring the aircraft loading and moving a small aileron-like device called a Tamarack Active Control Surface (TACS). The TACS movement reduces lift at the tip of the wing, resulting in the wing center of pressure moving inboard, thus reducing bending stresses along the wing span. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before June 14, 2012.
Send comments identified by docket number FAA–2012–0485 using any of the following methods:
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•
•
•
For sections 23.301 through 23.629 (structural requirements), contact Mr. Mike Reyer; telephone (816) 329–4131. For sections 23.672 through 23.701 (control system requirements), contact Mr. Ross Schaller; telephone (816) 329–4162. The address and facsimile for both Mr. Reyer and Mr. Schaller is: Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Kansas City, Missouri 64106; facsimile (816) 329–4090.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
On February 15, 2011, Tamarack Aerospace Group applied for a supplemental type certificate for installation of winglets and an Active Technology Load Alleviation System (ATLAS) on the Cirrus Model SR 22 (serial numbers 0002–2333, 2335–2419, and 2421–2437). The Cirrus model SR22 is a certified, single reciprocating engine, four-passenger, composite airplane.
The installation of winglets, as proposed by Tamarack, increases aerodynamic efficiency. However, the winglets by themselves also increase wing static loads and the wing fatigue stress ratio, which under limit gust and maneuver loads factors may exceed the certificated wing design limits. The addition of ATLAS mitigates the negative effects of the winglets by effectively aerodynamically turning off the winglet at elevated gust and maneuver loads factors.
The ATLAS functions as a load-relief system. This is accomplished by measuring aircraft loading via an accelerometer, and by moving a small aileron-like device called a Tamarack Active Control Surface (TACS) that reduces lift at the tip of the wing. Because the ATLAS compensates for the increased wing root bending at elevated load factors, the overall effect of this modification is that the winglet can be
Under the provisions of § 21.101, Tamarack Aerospace Group must show that the Cirrus Model SR22, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet A00009CH or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate Data Sheet A00009CH (Serial Numbers (S/Ns) 0002 through 2333, 2335 through 2419, and 2421 through 2437) are as follows:
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the SR22 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the SR22 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.
The SR22 will incorporate the following novel or unusual design features:
Winglets with an Active Technology Load Alleviation System (ATLAS) that incorporates a small aileron-like device called a Tamarack Active Control Surface (TACS).
Tamarack has applied for a Supplemental Type Certificate to install a winglet and ATLAS. The ATLAS is not a primary flight control system, a trim device, or a wing flap. However, there is definite applicability to ATLAS for several regulations under part 23, Subpart D—Control Systems, which might otherwise be considered “Not Applicable” under a strict interpretation of the regulations. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer.
Special conditions are also necessary for the effect of ATLAS on structural performance. These special conditions are intended to provide an equivalent level of safety for ATLAS as intended by part 23, Subpart C—Structure, and portions of part 23, Subpart D—Design and Construction.
As discussed above, these special conditions are applicable to the SR22 (S/Ns 0002 thru 2333, 2335 thru 2419, and 2421 thru 2437). Should Tamarack Aerospace Group apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate Data Sheet A00009CH to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Signs and symbols.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701–44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Cirrus Model SR22 airplanes (S/Ns 0002 through 2333, 2335 through 2419, and 2421 through 2437) modified by Tamarack Aerospace Group.
(A) The following special conditions apply to airplanes equipped with load alleviation systems that either directly, or as a result of failure or malfunction, affect structural performance. These special conditions address the direct structural consequences of the system responses and performances and cannot be considered in isolation but should be included in the overall safety evaluation of the airplane. Any statistical or probability terms used in the following special conditions apply to the structural requirements only and do not replace, remove, or supersede other requirements, including those in part 23, subpart E. These criteria are only
(B) In addition to the requirements in 14 CFR part 23, § 23.301 Loads, comply with the following:
(a) Failures of the load alleviation system, including the annunciation system, must be immediately annunciated to the pilot or annunciated prior to the next flight. Failure of the load alleviation system, including the annunciation system, must be no greater than 1 × 10
(b) If failure of the load alleviation system, including the annunciation system, is greater than 1 × 10
(c) Failures of the load alleviation system, including the annunciation system, must be reported to the FAA in a manner acceptable to the Administrator.
(C) In place of the requirements in 14 CFR part 23, 23.303 Factor of Safety, comply with the following:
The airplane must be able to withstand the limit and ultimate loads resulting from the following scenarios:
(a) The loads resulting from 14 CFR 23, 23.321 through 23.537, as applicable, corresponding to a fully operative load alleviation system. A factor of safety of 1.5 must be applied to determine ultimate loads.
(b) If an independent system functional test is required by SC 23.301(b), the loads resulting from 14 CFR 23, 23.321 through 23.537, as applicable, corresponding to the system in the failed state without additional flight limitations or reconfiguration of the airplane. A factor of safety of 1.0 must be applied to determine ultimate loads.
(c) The loads corresponding to the time of occurrence of load alleviation system failure and immediately after the failure. These loads must be determined at any speed up to V
(d) For airplanes equipped with “before the next flight” failure annunciation systems, the loads resulting from 14 CFR 23, 23.321 through 23.537, as applicable, corresponding to the system in the failed state without additional flight limitations or reconfiguration of the airplane. A factor of safety of 1.25 must be applied to determine ultimate loads.
(e) For airplanes equipped with “immediate” failure annunciation systems, the loads resulting from 14 CFR 23, 23.321 through 23.537, as applicable, corresponding to the system in the failed state with additional flight limitations or reconfiguration of the airplane. A factor of safety of 1.0 must be applied to determine ultimate loads.
(D) In addition to the requirements in 14 CFR 23, 23.571 through 23.574, comply with the following:
If any system failure would have a significant effect on the fatigue or damage evaluations required in §§ 23.571 through 23.574, then these effects must be taken into account. If an independent system functional test is required by SC 23.301(b), the effect on fatigue and damage evaluations resulting from the selected inspection interval must be taken into account.
(E) In addition to the requirements in 14 CFR 23, 23.629 Flutter, comply with the following:
(a) With the load alleviation system fully operative, compliance to 14 CFR 23, 23.629 must be shown. Compliance with § 23.629(f) must include the ATLAS control system and control surface.
(b) At the time of occurrence of load alleviation system failure and immediately after the failure, compliance with 14 CFR 23, 23.629 (a) and (e) must be shown up to V
(c) For airplanes equipped with “before the next flight” failure annunciation systems and the load alleviation system in the failed state, compliance to 14 CFR 23, 23.629 Flutter, paragraphs (a) and (e), must be shown up to V
(d) For airplanes equipped with “immediate” failure annunciation systems and the load alleviation system in the failed state, compliance to 14 CFR 23, 23.629 Flutter, paragraphs (a) and (e), must be shown with consideration of additional operating limitations or reconfiguration of the airplane at speeds up to V
(A) In place of 14 CFR part 23, § 23.672 Stability augmentation and automatic and power-operated systems requirement, comply with the following:
The load alleviation system must comply with the following:
(a) A warning, which is clearly distinguishable to the pilot under expected flight conditions without requiring the pilot's attention, must be provided for any failure in the load alleviation system or in any other automatic system that could result in an unsafe condition if the pilot was not aware of the failure. Warning systems must not activate the control system.
(b) The design of the load alleviation system or of any other automatic system must permit initial counteraction of failures without requiring exceptional pilot skill or strength, by either the deactivation of the system or a failed portion thereof, or by overriding the failure by movement of the flight controls in the normal sense.
(c) It must be shown that, while the system is active or after any single failure of the load alleviation system—
(1) The airplane is safely controllable when the failure or malfunction occurs at any speed or altitude within the approved operating limitations that is critical for the type of failure being considered;
(2) The controllability and maneuverability requirements of this part are met within a practical operational flight envelope (for example, speed, altitude, normal acceleration, and airplane configuration) that is described in the Airplane Flight Manual (AFM); and
(3) The trim, stability, and stall characteristics are not impaired below a level needed to permit continued safe flight and landing.
(B) In place of 14 CFR part 23, 23.677 Trim systems requirement, comply with the following:
(a) Proper precautions must be taken to prevent inadvertent, improper, or abrupt Tamarack Active Control Surface (TACS) operation.
(b) The load alleviation system must be designed so that, when any one connecting or transmitting element in the primary flight control system fails, adequate longitudinal control for safe flight and landing is available.
(c) The load alleviation system must be irreversible unless the TACS is properly balanced and has no unsafe flutter characteristics. The system must have adequate rigidity and reliability in the portion of the system from the tab to the attachment of the irreversible unit to the airplane structure.
(d) It must be demonstrated that the airplane is safely controllable and that the pilot can perform all maneuvers and operations necessary to effect a safe landing following any probable powered system runaway that reasonably might be expected in service, allowing for appropriate time delay after pilot recognition of the system runaway. The demonstration must be conducted at critical airplane weights and center of gravity positions.
(C) In place of 14 CFR part 23, 23.683 Operation tests requirement, comply with the following:
(a) It must be shown by operation tests that, when the load alleviation system is active and operational and loaded as prescribed in paragraph (b) of this section, the system is free from—
(1) Jamming;
(2) Excessive friction; and
(3) Excessive deflection.
(b) The prescribed test loads are, for the entire system, loads corresponding to the limit airloads on the appropriate surface.
(D) In place of 14 CFR part 23, 23.685 Control system details requirement, comply with the following:
(a) Each detail of the Tamarack Active Control Surface (TACS) must be designed and installed to prevent jamming, chafing, and interference from cargo, passengers, loose objects, or the freezing of moisture.
(b) There must be means in the cockpit to prevent the entry of foreign objects into places where they would jam any one connecting or transmitting element of the system.
(c) Each element of the load alleviation system must have design features, or must be distinctively and permanently marked, to minimize the possibility of incorrect assembly that could result in malfunctioning of the control system.
(E) In place of 14 CFR part 23, 23.697 Wing flap controls requirement, comply with the following:
(a) The Tamarack Active Control Surface (TACS) must be designed so that, when the surface has been placed in any position, it will not move from that position unless the control is adjusted or is moved by the automatic operation of a load alleviation system.
(b) The rate of movement of the TACS in response to the automatic device must give satisfactory flight and performance characteristics under steady or changing conditions of airspeed, engine power, and attitude.
(F) In place of 14 CFR part 23, 23.701 Flap interconnection requirement, comply with the following:
(a) The load alleviation system and related movable surfaces as a system must—
(1) Be synchronized by a mechanical interconnection between the movable surfaces; or by an approved equivalent means; or
(2) Be designed so that the occurrence of any failure of the system that would result in an unsafe flight characteristic of the airplane is extremely improbable; or
(b) The airplane must be shown to have safe flight characteristics with any combination of extreme positions of individual movable surfaces.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Boeing Model 737–800 airplane. This airplane as modified by Lufthansa Technik will have a novel or unusual design feature associated with the installation of large non-structural glass items in the cabin area of an executive interior occupied by passengers and crew. The installation of these items in a passenger compartment, which can be occupied during taxi, takeoff, and landing, is a novel or unusual design feature with respect to the material used. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before June 4, 2012.
Send comments identified by docket number FAA–2012–0499 using any of the following methods:
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John Shelden, FAA, Cabin Safety Branch, ANM–115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone 425–227–2785; facsimile 425–227–1232.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.
On December 16, 2010, Lufthansa Technik AG, Weg Beim Jaeger 193, 22335 Hamburg Germany applied for a supplemental type certificate for the installation of large non-structural glass items in the cabin area of the executive interior occupied by passengers and crew in a Boeing Model 737–800. The Boeing Model 737–800, approved under Type Certificate No. A16WE, is a large transport category airplane that is limited to 189 passengers or less, depending on the interior configuration. This specific Boeing Model 737–800 configuration includes seating provisions for 34 passengers.
Under the provisions of Title 14, Code of the Federal Regulations (14 CFR) 21.101, Lufthansa Technik must show that the Boeing Model 737–800, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A16WE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A16WE are as follows: 14 CFR part 25 as amended by Amendments 25–1 through 25–77 with exceptions for the Boeing Model 737–800. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these proposed special conditions.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 737–800 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 737–800 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.
The Boeing Model 737–800 will incorporate the following novel or unusual design features: The installation of large non-structural glass items, typically in the form of glass sheets in the cabin area of an executive interior occupied by passengers and crew.
These installations would be for aesthetic purposes, not for safety, in components other than windshields or windows. For these special conditions, a large glass item is 4 kg (approximately 10 pounds) and greater in mass. This limit was established as the mass at which a glass component could be expected to potentially cause widespread injury if it were to shatter or break free from its retention system.
The proposed special conditions address the novel and unusual design features for the use of large non-structural glass in the passenger cabin. These large glass items would be installed in occupied rooms or areas during taxi, take off, and landing, or rooms or areas that occupants do have to enter or pass through to get to any emergency exit. The installations of large non-structural glass items may include, but are not limited to, the following items:
• Glass partitions.
• Glass attached to the ceiling.
• Wall/door mounted mirrors/glass panels.
The existing part 25 regulations only address the use of glass in windshields, instrument or display transparencies, or window applications. The regulations treat glass as unique for special applications where no other material will serve and address the adverse properties of glass.
Section 25.775, “Window and windshields,” provides for the use of glass in airplanes but limits glass to windshields and instrument or display transparencies. Furthermore, except for bolted-in windshields, there is limited experience with either adhesive or mechanical retention methods for large glass objects installed in an airplane subject to high loads supported by flexible restraints.
The FAA has accepted the following uses of glass in the passenger cabin under the current regulations:
1. Glass items installed in rooms or areas in the cabin that are not occupied during taxi, take off, and landing, and occupants do not have to enter or pass through the room or area to get to any emergency exit.
2. Glass items integrated into a functional device whose operation is dependent upon the characteristics of glass, such as instrument or indicator protective transparencies, or monitor screens such as liquid crystal display (LCD) or plasma displays. These glass items may be installed in any area in the cabin regardless of occupancy during taxi, take-off, and landing. Acceptable means for these items may depend on the size and specific location of the device.
3. Small glass items installed in occupied rooms or areas during taxi, take off, and landing, or rooms or areas that occupants do have to enter or pass through to get to any emergency exit. For the purposes of these special conditions, a small glass item is less than 4 kg in mass or a group of glass items weighing less than 4 kg in mass.
The glass items in numbers one, two, and three (above) have been restricted to applications where the potential for injury is either highly localized (such as instrument faces) or the location is such that injury due to failure of the glass is unlikely (e.g., mirrors in lavatories). These glass items are subject to the inertia loads contained in § 25.561 and maximum positive differential pressure for items like monitors, but are not subject to these special conditions. They have been found acceptable through project specific means of compliance requiring testing to meet the requirement in § 25.785(d) and by adding a protective polycarbonate layer
The use of glass in airplanes utilizes the one unique characteristic of glass—its capability for undistorted or controlled light transmittance, or transparency. Glass, in its basic form as annealed, untreated sheet, plate, or float glass, when compared to metals, is extremely notch-sensitive, has a low fracture resistance, has a low modulus of elasticity, and can be highly variable in its properties. While reasonably strong, it is not a desirable material for traditional aircraft applications because, as a solo component, it is heavy (about the same density as aluminum). In addition, when glass fails, it can break into extremely sharp fragments that have the potential for injury above and beyond simple impact and have been known to be lethal.
The proposed special conditions address installing glass in much larger sizes than previously accepted and in a multitude of locations and applications, instead of using more traditional aircraft materials. In most, if not all cases, the glass will not be covered with a polycarbonate layer. Additionally, the retention of glass of this size and weight is not amenable to conventional techniques currently utilized in airplane cabins.
The proposed special conditions consider the unusual material properties of glass as an interior material that have limited or prevented its use in the past, and address the performance standards needed to ensure that those properties do not reduce the level of safety intended by the regulations. They address the use of large glass items installed in occupied rooms or areas during taxi, take off, and landing, or rooms or areas that occupants do have to enter or pass through to get to any emergency exit.
The proposed special conditions define a large glass component threshold of 4 kg, which is based on an assessment of the mass dislodged during a high “g” level (as defined in § 25.562) event. Groupings of glass components that total more than 4 kg would also need to be included. The applicable performance standards in the regulations for the installation of these components also apply and should not adversely affect the standards provided below. For example, heat release and smoke density testing should not result in fragmentation of the component.
For large glass components mounted in a cabin occupied by passengers or crew that are not otherwise protected from the injurious effects of failure of the glass component, the following apply:
Analysis may be used in lieu of testing if the applicant has validated the strength models and dynamic simulation models used against static tests to failure and dynamic testing to the above requirements and can predict structural failure and dynamic response and inertial load. The glass material properties must meet § 25.613, “Material strength properties and material design values.” The effect of design details, such as geometric discontinuities or surface finish, must be accounted for in the test/analysis.
As discussed above, these special conditions are applicable to the Boeing Model 737–800. Should Lufthansa Technik apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A16WE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.
Certification of the Boeing Model 737–800 is currently scheduled for June 2012. The substance of these special conditions has been previously subject to the notice and public-comment procedure. Therefore, because a delay would significantly affect both the applicant's installation of the system and certification of the airplane, we are shortening the public-comment period to 20 days.
This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Boeing Model 737–800 airplanes modified by Lufthansa Technik AG. For these special conditions, a large glass component is 4 kg (approximately 10 pounds) and greater in mass, or a grouping of glass components that total more than 4 kg.
1. Boeing Model 737–800 Airplane; Large Non-Structural Glass in the Passenger Compartment. The airplane is not operated for hire or offered for common carriage. This provision does not preclude the operator from receiving remuneration to the extent consistent with 14 CFR parts 125 and 91, subpart F, as applicable.
2.
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5.
National Mediation Board.
Proposed rule with request for comments.
This proposal amends the National Mediation Board's (NMB or Board) existing rules for handling representation disputes to incorporate statutory language added to or amending the Railway Labor Act (RLA) by the Federal Aviation Administration Modernization and Reform Act of 2012. This document proposes changes to the existing regulations pertaining to run-off elections, showing of interest for representation elections, and the NMB's rulemaking proceedings.
The NMB will accept written comments that are received on or before July 16, 2012.
You may submit comments identified by Docket Number C–7034 by any of the following methods:
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Mary Johnson, General Counsel, National Mediation Board, 202–692–5050,
On February 14, 2012, the President signed the Federal Aviation Administration Modernization and Reform Act of 2012, Public Law 112–095 (FAA Reauthorization) into law. The FAA Reauthorization contained, inter alia, several amendments to the RLA. The changes contained in these amendments impact the Board's current Rules relating to run-off elections, showing of interest requirements, and rulemaking. These Rules are being revised to comply with the statutory language. As discussed below, the Board invites commenters to address specific questions below, along with any other matters they consider relevant to the changes wrought by the amended statutory language. The Board is particularly interested in receiving comments regarding the effect of the amendments on the Board's policies and practices with respect to representation disputes in mergers. The NMB may incorporate any comments in a Final Rule in this proceeding. The NMB will hold an open public hearing during the comment period. A notice will be published containing the dates of the open public hearing and related information.
Prior to the enactment of the FAA Reauthorization, under its previous practice in representation elections, the Board aggregated all votes cast for representation, including write-in votes.
The Board's Rules also required that a participant initiate a run-off election with a written request. 29 CFR 1206.1. The amended language now requires the Board to “arrange for” a second election when no ballot option receives a majority of the ballots cast.
Prior to these amendments, the showing of interest requirements needed to support an application under Section 2, Ninth of the RLA invoking the Board's services to investigate a representation dispute among a carrier's
The amended language is silent with regard to mergers. Courts have long recognized that the NMB, under Section 2, Ninth, has the authority to resolve representation disputes arising from a merger involving a carrier or carriers covered by the RLA.
The FAA Reauthorization also amends the RLA to specifically provide rulemaking under the Administrative Procedure Act (APA) with the added requirement of a hearing in addition to the notice and comment provisions of Section 553 of the APA.
This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507
The NMB certifies that this rule will not have a significant impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This proposal will not have any significant impact on the quality of the human environment under the National Environmental Policy Act (42 U.S.C. 4321
Air carriers, Labor management relations, Labor unions, Railroads.
Accordingly, as set forth in the preamble, the NMB proposes to amend 29 CFR part 1206 as follows:
1. The authority citation for part 1206 continues to read as follows:
44 Stat. 577, as amended; 45 U.S.C. 151–163.
2. Section 1206.1 is revised to read as follows:
(a) If in an election among any craft or class no option receives a majority of the legal votes cast, or in the event of a tie vote, the Board shall authorize a run-off election.
(b) In the event a run-off election is authorized by the Board, the names of the two options which received the highest number of votes cast in the first election shall be placed on the run-off ballot, and no blank line on which voters may write in the name of any organization or individual will be provided on the run-off ballot.
(c) Employees who were eligible to vote at the conclusion of the first election shall be eligible to vote in the run-off election except:
(1) Those employees whose employment relationship has terminated; and
(2) Those employees who are no longer employed in the craft or class.
3. Section 1206.2 is revised to read as follows:
Upon receipt of an application requesting that an organization or individual be certified as the representative of any craft or class of employees, a showing of proved authorizations (checked and verified as to date, signature, and employment status) from at least fifty (50) percent of the craft or class must be made before the National Mediation Board will authorize an election or otherwise determine the representation desires of the employees under the provisions of section 2, Ninth, of the Railway Labor Act.
4. Section 1206.5 is revised to read as follows:
In any representation dispute under the provisions of section 2, Ninth of the Railway Labor Act, an intervening individual or organization must produce proved authorizations (checked and verified as to date, signature, and employment status) from at least fifty (50) percent of the craft or class of employees involved to warrant placing the name of the intervenor on the ballot.
5. Section 1206.8 is revised to read as follows:
(a) The Board may at any time amend or rescind any rule or regulation in this part by following the public rulemaking procedures under the Administrative Procedure Act (5 U.S.C. 553) and after providing the opportunity for a public hearing.
(b) The requirements of paragraph (a) of this section shall not apply to any rule or proposed rule to which the third sentence of section 553(b) of the Administrative Procedure Act applies.
(c) Any interested person may petition the Board, in writing, for the issuance, amendment, or repeal of a rule or regulation in this part. An original and three copies of such petition shall be filed with the Board in Washington, DC, and shall state the rule or regulation proposed to be issued, amended, or repealed, together with a statement of grounds in support of such petition.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish permanent Special Local Regulations to provide for the safe control of vessel movement during the start of the Annual Bayview Mackinac Race, commonly known as the Port Huron to Mackinac Sail Race. This action is necessary to provide for the safety of the general boating public and commercial shipping during the start of the race.
Comments and related materials must be received by the Coast Guard no later than June 14, 2012.
You may submit comments identified by docket number USCG–2012–0403 using any one of the following methods:
(1)
(2)
To avoid duplication, please use only one of these methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, email or call Frank Jennings, Jr., Auxiliary and Boating Safety Branch, Ninth Coast Guard District, 1240 East 9th Street, Cleveland, OH, via email at:
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
The Port Huron to Mackinac sail race (currently titled the “Bell's Beer Bayview Mackinac Race”) is an annual regatta that has taken place since 1925. The race occurs in July of each year with a starting point in Port Huron, MI. It is typical for more than 200 sailboats
In light of the extra and unusual hazards likely to occur at the starting point of the Port Huron to Mackinac sail race, the Coast Guard proposes to establish permanent Special Local Regulations. These Special Local Regulations will be enforced in July of each year, and the exact times and dates of enforcement will be published in the
In order to ensure the safety of spectators and those vessels participating in the race, the Coast Guard will patrol the regulated area under the direction of a designated Coast Guard Patrol Commander (PATCOM). Vessels desiring to transit the regulated area may do so but only with prior approval of the PATCOM and only when so directed by that individual. The PATCOM may be contacted on Channel 16 (156.8 MHZ) by the call sign “Coast Guard Patrol Commander.” Vessels allowed within the regulated area will be operated at a no wake speed and in a manner that will not endanger participants in the event or any other craft. These proposed Special Local Regulations shall not apply to vessels participating in the event or government vessels patrolling the regulated area.
In the event these proposed Special Local Regulations affect shipping, commercial vessels may request permission from the PATCOM to transit the area of the event by hailing call sign “Coast Guard Patrol Commander” on Channel 16 (156.8 MHZ).
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
This proposed rule is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS) because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.
This proposed rule will be enforced for only seven hours on a single day in July. Also, the regulated area will be a relatively small and only in effect at the race's starting point. Additionally, it is expected that during the annual enforcement of these proposed Special Local Regulations the majority of vessel traffic in the vicinity of the regulated area will be recreational in nature. Furthermore, some vessel traffic will be allowed to pass, albeit with caution and at a reduced speed, through the regulated area with the permission of the Coast Guard Patrol Commander. Finally, the Coast Guard expects that public awareness of this event, along with the Coast Guard's regulation of it, is particularly high. As mentioned above, this race has recurred regularly since 1925, and the Coast Guard has regulated it for many years with both permanent and temporary regulations. Despite the race's long history, the Coast Guard still intends to issue maritime advisories to current users of the affected waterways. On the whole, local maritime interests are already well familiar with the effects of this event and this proposed rulemaking.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Black River, St. Clair River and lower Lake Huron during the month of July each year.
These proposed Special Local Regulations will not have a significant economic impact on a substantial number of small entities for the same reasons discussed in above
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please email or call Frank Jennings, Jr., Auxiliary and Boating Safety Branch, Ninth Coast Guard District, 1240 East 9th Street, Cleveland, OH, via email at:
This proposed rule calls for no new collection of information under the
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
This proposed rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule will meet applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f). We have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of Special Local Regulations and is therefore categorically excluded under figure 2–1, paragraph (34)(h), of the Instruction. During the annual permitting process for this event an environmental analysis will be conducted to include the effects of these proposed Special Local Regulations. Thus, no preliminary environmental analysis checklist or Categorical Exclusion Determination (CED) are required for this proposed rulemaking action. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. Add § 100.902 to read as follows:
(a)
(b)
(c)
(1) No vessel may enter the regulated area established in paragraph (a) without prior approval from the Coast Guard's designated Patrol Commander (PATCOM). The PATCOM may restrict vessel operation within the regulated area to vessels having particular operating characteristics.
(2) Vessels permitted to enter this regulated area must operate at a no wake speed and in a manner that will not endanger race participants or any other craft.
(3) The PATCOM may direct the anchoring, mooring, or movement of any vessel within this regulated area. A succession of sharp, short signals by whistle or horn from vessels patrolling the area under the direction of the PATCOM shall serve as a signal to stop. Vessels so signaled shall stop and shall comply with the orders of the PATCOM. Failure to do so may result in expulsion
(4) If it is deemed necessary for the protection of life and property, the PATCOM may terminate at any time the marine event or the operation of any vessel within the regulated area.
(5) In accordance with the general regulations in section 100.35 of this part, the Coast Guard will patrol the regatta area under the direction of a designated Coast Guard Patrol Commander (PATCOM). The PATCOM may be contacted on Channel 16 (156.8 MHz) by the call sign “Coast Guard Patrol Commander.”
(6) The rules in this section shall not apply to vessels participating in the event or to government vessels patrolling the regulated area in the performance of their assigned duties.
United States Patent and Trademark Office, Commerce.
Request for comments.
The United States Patent and Trademark Office (Office) is seeking comments to obtain views of the public on the international effort to revise the standard for the presentation of nucleotide and/or amino acid sequences and the consequent changes to the United States rules of practice. The standard is being revised to require the use of extensible mark-up language (XML) format, to update the standard, and to more closely align requirements of the standard with those of public sequence database providers. Comments may be offered on any aspect of this effort.
Written comments must be received on or before July 16, 2012 to ensure consideration. No public hearing will be held.
Comments concerning this notice should be sent by electronic mail message over the Internet addressed to
The comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available via the Internet (
Susan C. Wolski, Office of Patent Cooperation Treaty Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy, by telephone at (571) 272–3304, or by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313–1450, marked to the attention of Susan C. Wolski.
Patent applicants are currently required to submit biological sequence data in a standardized electronic format in accordance with World Intellectual Property Organization (WIPO) Standard ST.25, both within the framework of the Patent Cooperation Treaty (PCT) (Annex C of the Administrative Instructions) and under most national and regional provisions. The Rules of Patent Practice in the United States (37 CFR 1.821–1.825) are substantively consistent with WIPO ST.25.
WIPO ST.25, which became effective in 1998 and has not been revised since that time, requires a flat file structure of numeric identifiers using a limited set of character codes. In October 2010, the Committee on WIPO Standards (CWS) established a Task Force, designating the European Patent Organization (EPO) as the lead, to propose a revised standard for the filing of nucleotide and/or amino acid sequence listings in XML format (hereinafter referred to as “the XML standard”). The work of the Task Force is accomplished through online collaboration, restricted to Task Force members only, via the WIPO Web site. The XML standard (tentatively designated WIPO ST.26) is composed of three documents, namely, the main body of the standard, a first annex setting forth the controlled vocabularies for use with the sequence part of the standard, and a second annex setting forth the Document Type Definition (DTD) for the standard. Five rounds of comment/revision have taken place since March 2011, and discussion of the documents is ongoing.
It is expected that the XML standard will be adopted at a meeting of the CWS in early 2013. However, no decision has been made as to when it will enter into force for PCT purposes, and consequently, for national and regional offices. The work of the Task Force and issues pertaining to transitioning to the XML standard were discussed at the Nineteenth Session of the Meeting of International Authorities (MIA)(February 8–10, 2012). The Meeting agreed that the Task Force will look at the feasibility of developing a tool that would allow for the easy and complete conversion of sequence listings filed in one format (ST.25 or XML) into the other. Thereafter, the appropriate PCT bodies should commence a discussion on the most appropriate mechanism for transition from ST.25 to the XML standard. See the Meeting Summary available at
The Office, leading the negotiations for the United States, is seeking public comment on the current version of the main body of the standard and its two annexes. The text of the current draft of the proposed main body of the sequence listing standard, with its associated Annexes, is available via the Office's Web site at
In light of the likely adoption of this standard in early 2013, the Office desires to ensure that the XML standard is disseminated as widely as possible and the opportunity to provide comments is correspondingly comprehensive. Written comments may be offered on any aspect of the proposed standard or Annexes, transition issues, or expected implementation in the United States. Comments are specifically requested on the following issues:
(1)
The Office invites comments on whether the main body of the standard is sufficiently comprehensive and clear to achieve this goal, and in particular welcomes suggestions to add details or clarify the language as appropriate.
(2)
The Office invites comments as to whether the XML standard includes any unnecessary procedural requirements or excludes any procedural requirements that should be retained.
(3)
The INSDC revises feature keys and qualifiers on an occasional basis (i.e., there is no set schedule). While the goal of requiring INSDC feature keys and qualifiers is to improve compatibility with the public sequence database providers, it is not clear how often the international, national, and regional offices will be able to update submission software and procedures or rules to accommodate such changes.
Public comment is invited with regard to any feature keys or qualifiers that are not clear, or that are optional and should be mandatory (or vice versa). Comments are also welcome regarding how frequently WIPO should consider updating these feature keys and qualifiers, recognizing the impact this will have on the Office rules.
(4)
(a)
(b)
(c)
(d)
58. A variant sequence disclosed by enumeration of its residues and encompassed by paragraph 4 must be assigned its own sequence identification number and be presented in the sequence listing. A specific variant, i.e., deletion, addition, or substitution, disclosed only by reference to a disclosed primary sequence in the sequence listing, must be presented in the sequence listing either as a separate sequence assigned its own sequence identification number or by annotation of the primary sequence with appropriate feature keys and qualifiers. A specific variant containing multiple variations from the primary sequence at distinct locations, where the variations at each location only occur together, must be presented in the sequence listing as a separate sequence assigned its own sequence identification number.
The Office requests comments on whether these changes as set forth in paragraphs (a) through (d) above are desirable, and what difficulties, if any, are likely to be faced in complying with the definition in the XML standard.
(5)
The Office invites comments as to whether there is any perceived detriment due to the non-inclusion of such publications or references in the sequence listing.
(6)
(a) The Office invites comments regarding how much time is likely to be needed for applicants to transition to the XML standard (with the assumption that sequence listing authoring software will be publicly available).
(b) Given the divergent requirements of the proposed XML standard and ST.25 as described above, the Office invites comments on what difficulties an applicant should anticipate if national or regional offices required compliance with different standards (
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the State of Maryland pertaining to sources which are exempt from preconstruction permitting requirements under Maryland's New Source Review (NSR) program. In the Final Rules section of this
Comments must be received in writing by June 14, 2012.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2012–0292 by one of the following methods:
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B.
C.
D.
Mr. David Talley, (215) 814–2117, or by email at
For further information, please see the information provided in the direct final action, also entitled “Approval and Promulgation of Air Quality Implementation Plans; Maryland; Permit to Construct Exemptions,” that is located in the “Rules and Regulations” section of this
Office of the National Coordinator for Health Information Technology (ONC), Department of Health and Human Services.
Request for information.
The nationwide health information network is defined as the set of standards, services, and policies that enable secure health information exchange over the Internet. Enacted in February 2009, the Health Information Technology for Economic and Clinical Health (HITECH) Act requires the
To be assured consideration, written or electronic comments must be received at one of the addresses provided below, no later than 5 p.m. on June 14, 2012.
You may submit comments identified by any of the following methods below (please do not submit duplicate comments). Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
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Steven Posnack, Director, Federal Policy Division, Office of Policy and Planning, Office of the National Coordinator for Health Information Technology, 202–690–7151.
Electronic health information exchange (referred to as “electronic exchange” in the text that follows) addresses a critical need in our healthcare system and provides the foundation for improved care coordination and quality improvement. However, absent a common set of rules to guide its development and nationwide expansion, electronic exchange has been governed by a patchwork of contractual relationships, procurement requirements, State and Federal laws, and industry self-regulation through accreditation and certification. Consequently, this ad-hoc governance approach has led to asymmetries in the policies and technical standards, which are evident in the various local, regional and State electronic exchange activities. Because of the expected increase in demand for electronic exchange capacity to support innovative care and payment models now underway as well as proposed meaningful use Stage 2 objectives and measures, stakeholders have communicated to the Office of the National Coordinator for Health Information Technology (ONC) that a consistent, baseline set of “rules of the road” for electronic exchange is desirable, and perhaps necessary.
We believe that this is an opportune time to solicit input on how the governance mechanism for the nationwide health information network should be shaped and how we could effectively use our statutory authority to complement existing Federal regulations to support and enable nationwide electronic exchange. We also believe that a properly crafted governance mechanism could yield substantial public benefits, including: reduced burden and costs to engage in electronic exchange; added protections for consumers and health care providers; and, in the long-run, a more innovative, and efficient electronic exchange marketplace that would ultimately create an environment where electronic exchange is commonplace and “worry-free.”
For individual consumers, one of the governance mechanism's potential benefits could be the establishment of additional safeguards specific to electronic exchange that are not addressed by other Federal laws, such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules, or State laws. For example, the governance mechanism could include more prescriptive and/or more stringent policies for entities that facilitate electronic exchange than are included in the HIPAA Privacy and Security Rules. From a health care provider's perspective, we anticipate that the governance mechanism could provide assurances to all electronic exchange parties that a specified set of requirements have been met. In turn, we believe these assurances could help spur greater trust and confidence in electronic exchange among providers and ease concerns associated with sharing patient information. Finally, for the entities that facilitate electronic exchange, we believe that the governance mechanism could enable a more competitive and open electronic exchange market and make it more efficient for these entities to exchange electronic health information.
This request for information (RFI) reflects ONC's current thinking regarding the approach ONC should take to establish a governance mechanism for the nationwide health information network. It frames many of the draft proposals and concepts ONC is considering, and depending on comments ONC receives, many of these concepts could be included in a future notice of proposed rulemaking. We seek public comment on whether it is timely for ONC to act to establish a governance mechanism; the advantages, disadvantages, and anticipated market impact of the potential proposals we discuss; and whether we should consider any alternatives in place of, or in combination with, the proposals discussed in this RFI.
Overall, we believe that it would be impracticable and imprudent to establish through regulation a “one-size fits all” approach to governance. Given the constantly evolving technical and policy landscape applicable to electronic exchange, it would be onerous and perhaps unachievable to specify up front all forms of electronic exchange to which the governance mechanism could apply. Rather, we view the nationwide health information network as a continually expanding ecosystem of electronic exchange activities for which stakeholders would be able to select the appropriate set of standards, services, and policies to meet their electronic exchange needs. This ecosystem would encompass many forms of electronic exchange, ranging from simple forms (such as when the electronic exchange of health information is planned and sent to a known destination) to more sophisticated forms (such as when the electronic exchange is unplanned meaning the data source is unknown beforehand and query and response techniques are utilized). It would also accommodate emerging exchange activities as they gain policy and technical maturity, such as the use cases being proven by the participants in the nationwide health information network Exchange initiative.
In rulemaking, we would seek to launch the structures, processes, and initial requirements that would be necessary for the governance mechanism to operate. In subsequent rulemakings, we anticipate addressing evolving electronic exchange requirements and the standards and policies necessary to effectively govern new and perhaps more complex forms of electronic exchange. Below, we briefly summarize the proposals this RFI covers and provide more detailed explanations for each proposal in the sections that follow.
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We have intentionally presented many details of our considerations in this RFI. We hope that this level of detail will generate more specific and insightful comments and a more comprehensive dialogue. In establishing a governance mechanism, ONC is committed to obtaining ongoing public input, and we are consequently also relying heavily on the HIT Policy Committee
The Health Information Technology for Economic and Clinical Health (HITECH) Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA) (Pub. L. 111–5), was enacted on February 17, 2009. The HITECH Act amended the Public Health Service Act (PHSA) and established “Title XXX—Health Information Technology and Quality” to improve health care quality, safety, and efficiency through the promotion of HIT and the electronic exchange of health information. More specifically, section 3001(c)(8) of the PHSA, requires the National Coordinator for Health Information Technology (National Coordinator) to “establish a governance mechanism for the nationwide health information network.” Thus we interpret section 3001(c)(8) of the PHSA with sufficient breadth to enable the National Coordinator to establish a mechanism for governing the nationwide health information network, which we define as the set of standards, services, and policies that enable secure health information exchange over the Internet.
We note that Congress in section 3001(b) of the PHSA directed the National Coordinator to perform his duties under section 3001(c) in a manner “consistent with the development of a nationwide health information technology infrastructure that allows for the electronic use and exchange of information” and that accomplishes the eleven outcomes specified in PHSA section 3001(b) for which the National Coordinator is responsible. Moreover, we believe the authority granted to the National Coordinator at section 3001(c)(1)(A) to “review and determine whether to endorse each standard, implementation specification, and certification criterion for the electronic exchange and use of health information that is recommended by the HIT Standards Committee under section 3003 for purposes of adoption [by the Secretary] under section 3004” as well as the National Coordinator's authority to consider policy recommendations from the HIT Policy Committee as described in section 3002(b) of the PHSA would support the approach we are considering to establish for the nationwide health information network governance mechanism.
Section 3002(b)(2)(A) of the PHSA authorizes the HIT Policy Committee to “recommend the areas in which standards, implementation specifications and certification criteria are needed for the electronic exchange and use of health information for purposes of adoption under section 3004 and [to] recommend an order of priority for the development, harmonization, and recognition of standards, specifications, and certification criteria * * *.” Section 3002(b)(3) states “[t]he HIT Policy Committee shall serve as a forum for broad stakeholder input with specific expertise in policies relating to the matters described in paragraphs (1) and (2).”
Section 3003(b)(1)(A) of the PHSA states that “[t]he HIT Standards Committee shall recommend to the National Coordinator standards, implementation specifications, and certification criteria described in subsection (a) that have been developed, harmonized, or recognized by the HIT Standards Committee * * *.” Section 3003(b)(2) directs the HIT Standards Committee to “serve as a forum for the participation of a broad range of stakeholders to provide input on the development, harmonization, and recognition of standards, implementation specifications, and certification criteria necessary for the development and adoption of a nationwide health information technology infrastructure that allows for the electronic use and exchange of health information.”
Lastly, section 3004 of the PHSA in turn identifies a process for the adoption of HIT standards, implementation specifications, and certification criteria and authorizes the Secretary to adopt such standards, implementation specifications, and certification criteria.
The success of electronic exchange under the auspices of the nationwide health information network depends, in large part, on assurances that personally identifiable health information will remain confidential and secure. Existing Federal standards governing the privacy and security of health information establish an essential baseline of protection on which we anticipate building through nationwide health information network governance.
The Privacy and Security Rules issued under HIPAA established the first generally applicable Federal protections for health information maintained by certain key segments of the health care industry: health care providers who transmit health information electronically in connection with a transaction for which the Secretary has adopted a standard, health plans, and health care clearinghouses (collectively called “covered entities”). The HIPAA Privacy Rule sets the standards and implementation specifications for the use and disclosure of individually identifiable health information (IIHI) held by these covered entities (called protected health information or PHI). It is notable that the HIPAA Privacy Rule was not intended to establish best practices with which covered entities could voluntarily comply; rather, it establishes a baseline of enforceable Federal regulatory protections upon which the States or covered entities (as a matter of organizational policy) are free to expand.
The HIPAA Security Rule requires covered entities to establish specific administrative, physical, and technical safeguards
Subtitle D of the HITECH Act (sections 13400–13424) expanded the protections afforded by HIPAA by requiring, among other things, business associates (generally, persons or entities that create, receive, maintain, or transmit PHI on behalf of, or in the provision of certain services to, a covered entity) to comply with certain HIPAA Privacy Rule provisions and the standards and implementation specifications of the Security Rule.
Over the past decade the nationwide health information network has been conceptualized in several different ways. The following provides a brief history of the major activities, events, and milestones that have shaped our understanding and conceptualization of the nationwide health information network.
In 2001, the National Committee on Vital and Health Statistics (NCVHS) issued recommendations on nationwide electronic health information exchange within a report titled “Information for Health, A Strategy for Building the National Health Information Infrastructure.” In this report, NCVHS outlined three dimensions of health information infrastructure (Personal Health; Healthcare Provider; and Population Health) that would be important for “conceptualizing the capture, storage, communication, processing, and presentation of information.” NCVHS also recognized that ensuring the confidentiality and security of personal health information was paramount in developing the infrastructure to enable nationwide electronic health information exchange. Noting that the HIPAA Privacy Rule provided strong protections for individually identifiable health information, the NCVHS also forecasted that additional protections would be needed to extend across all the users, technologies, and functions envisioned by the nationwide health information network.
Since 2004, when the Office of the National Coordinator for Health Information Technology (ONC) was created under Executive Order 13335, ONC has supported the development of standards, services, and policies to support nationwide electronic exchange. ONC's first formal step was the publication of a request for information in November 2004 which sought public input on the development of the nationwide health information network which was originally characterized as a “network of networks.” ONC received 512 comments in response to the RFI and published a report summarizing the comments the following year.
In June 2005, ONC took another step forward toward the development of the nationwide health information network when it issued a request for proposals (RFP) for the development of nationwide health information network prototype architectures. The prototypes sought to test a range of services including the capabilities to query and
In October 2006, NCVHS issued recommendations to ONC on a minimum, but critical, set of functional requirements for nationwide electronic health information exchange to take place. These recommendations sought to accommodate diverse architectures across networks and systems
In fall 2007 and spring 2008, building on the experiences gained and lessons learned in the prototype phase, ONC awarded contracts and grants to organizations to conduct nationwide health information network trial implementations.
Also during this time, NCVHS published informative reports with recommendations related to how entities engaged in electronic exchange activities but who are not covered by HIPAA should be treated and the policy issues associated with consent and secondary uses of IIHI.
The prototype and trial implementation phases produced important insights. Most significantly, they identified areas where further technical and policy work would be needed to enable query and retrieve-based electronic health information exchange and they highlighted the potential limitations of a single, multi-party data use agreement. As a result of these insights, ONC shifted its approach from a singular vision focused on the establishment of a network of networks to one in which the Federal government could serve as the facilitator of diverse approaches to electronic exchange through the specification of nationally-accepted standards, services, and policies. This transition was based in part on the recognition that there could be multiple types of electronic exchange networks all built on the same foundational building blocks of standards, services, and policies.
Beginning in 2009, Federal and non-Federal entities participating in the trial implementations began securely exchanging health information bound by the parameters established in a “production DURSA.” This confederation of entities is referred to as the “Nationwide Health Information Network Exchange” or “the Exchange,” and relies on the DURSA to help structure a governance framework. To become a participant in the Exchange, an organization must sign the DURSA and also must pass an “onboarding”
Presently, a growing number of organizations are exchanging health information as part of the Exchange. Participants in the Exchange are engaged in production activities that include: The exchange of summary patient records for care coordination, including health information that is part of the Virtual Lifetime Electronic Record and which is jointly sponsored by the Departments of Defense and Veterans Affairs; the exchange of summary patient records for Social Security Administration disability determination purposes; and biosurveillance and case reporting to the Centers for Disease Control and Prevention. These use cases have helped to define and evolve a set of specific standards, services, and policies included in the nationwide health information network's growing electronic exchange portfolio.
Many lessons can be learned from the Exchange's production activities. For instance, the Exchange identified one type of governance model for nationwide electronic health information exchange with the DURSA, which relies upon a “Coordinating Committee” and “Technical Committee,” to develop exchange policies and technical interoperability requirements for the participants. Another important lesson learned was that the member organizations identified a need for more specific policies and greater consistency in implementing the HIPAA Privacy and Security Rules in order to engender sufficient trust among parties with which data would be shared. The Exchange's efforts have aided in the early identification and resolution of policy and technical challenges and helped tee up issues that require broad stakeholder dialogue, such as the policy and technical requirements related to matching patients to their health information.
Payment and delivery reforms—from accountable care organizations (ACOs)
Stage 1 of the Medicare and Medicaid EHR Incentive Programs included several objectives and measures that required or encouraged electronic exchange as an efficient means for an eligible professional, eligible hospital, or critical access hospital to satisfy the objective and measure (e.g., “exchange key clinical information;” “incorporate clinical lab test results;” and “submission to immunization registries”). As we reviewed our standards portfolio in terms of its ability to support meaningful use Stage 1, we determined that we were missing a simple and easily adoptable approach to enable electronic exchange to occur. While many HIT vendors supported some kind of planned electronic exchange capability prior to meaningful use Stage 1, many did not follow a common set of standards or included a proprietary mechanism that would make it difficult for providers using different systems to easily exchange clinical information to support patient care.
In March 2010, after public meetings held by the HIT Policy Committee, ONC coordinated the launch of the “Direct Project” to identify the standards, services, and policies necessary to enable a simple, secure, scalable, standards-based way for participants to send authenticated, encrypted health information directly to known, trusted recipients over the Internet. The Direct Project focused on what would be necessary to transport health information regardless of the clinical content of the information to be exchanged. A primary goal of the Direct Project was to support secure, efficient, and low cost exchange of health information and to make it possible for eligible health care providers to satisfy some of the meaningful use Stage 1 objectives and associated measures that require electronic exchange.
Unlike the Exchange, the Direct Project cannot rely on a governance framework provided by the DURSA and “onboarding” procedures. While both initiatives are considered part of ONC's nationwide health information network activities, each was established to address different electronic exchange requirements and contribute different standards, services, and policies to the nationwide health information network's portfolio. A basic analogy that may help explain the relationship between the nationwide health information network, the Exchange, and the Direct Project is as follows: The nationwide health information network is akin to the “Internet”—an electronic environment in which the use of a common set of standards, services, and policies will allow a group of entities to exchange information. The nationwide health information network comprises multiple approaches that one could use to electronically exchange electronic health information among a variety of stakeholders. The Exchange could be compared to a consortium using a secure “Intranet,” in which only approved members can gain access after receiving the appropriate security credentials and agreeing to the Intranet's terms of use. Continuing this analogy, the Direct Project is like secure email or even secure instant messaging, whereby two entities that already share a trust relationship with each other can use relatively simple technical means to electronically exchange health information.
f. The Health Information Technology Policy and Standards Committees' Work on the Nationwide Health Information Network.
In September 2010, the HIT Policy Committee, which is one of two statutorily established Federal Advisory Committees that provide advice to the National Coordinator, formed the nationwide health information network Governance Workgroup (Governance Workgroup) and charged it with “draft[ing] a set of recommendations on the scope and process of governance for nationwide health information exchange, including measures to ensure accountability and oversight.”
• Identified nine core principles according to which the nationwide health information network should be governed. These principles included: transparency and openness; inclusive participation and adequate representation; effectiveness and efficiency; accountability; federated governance and devolution; clarity of mission and consistency of actions; fairness and due process; promote and support innovation; and finally, evaluation, learning and continuous improvement.
• Emphasized that the nationwide health information network should be considered a preferred approach for nationwide health information exchange.
• Identified the responsibilities for the Federal government in governance of the nationwide health information network. These should include: (1) Leading the development of fundamental “conditions” to facilitate greater trust and interoperability in an electronic health information exchange environment and promote the adoption of those conditions through various policy levers; (2) Recognizing existing state authorities across all relevant domains and facilitating coordination and harmonization with states and other entities as needed; (3) Requiring exchange with Federal agencies to be conditioned on compliance with the conditions; and (4) Sharing the responsibility of governance with other entities to reflect a “governance of governances.”
• Optimize broad stakeholder input, including consumers, to facilitate the conditions needed for greater trust and interoperability in electronic exchange.
• Establish an initial set of conditions and a process to incrementally add to or modify the conditions over time. Establish a process to validate
• Ensure accountability through oversight.
Most recently, the HIT Standards Committee established a subcommittee, the nationwide health information network Power Team, in June 2011.
As we consider how best to implement our statutory authority to establish a governance mechanism for the nationwide health information network, we believe it would be critical to adopt a suite of conditions for trusted exchange (CTEs) to serve as the “rules of the road” for trusted, secure, and interoperable electronic exchange, nationwide. We believe that the CTEs could serve as a foundational set of requirements that could be used in one or more combinations to support many different forms of electronic exchange. CTEs appear to best be grouped into three categories: safeguards, interoperability, and business practices.
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Question 1:
An important component of the governance mechanism we are considering would be the establishment of a voluntary framework for entities that facilitate electronic exchange to be validated to CTEs adopted for the exchange services or activities they are capable of supporting. Upon successful validation to the CTEs, an entity would be recognized as a NVE and thus would be recognized as an entity that would be accountable for the electronic exchange services or activities it performs in accordance with the CTEs. Given the incremental CTE adoption approach we expect to take, we also anticipate that the recognition of NVEs would incrementally expand along with the diversity of the electronic exchange services or activities they are able to perform. Thus, we could see providing NVEs or new entities with other categorical recognition(s) for the electronic exchange services or activities they are capable of supporting in accordance with subsequently adopted CTEs. Additionally, this validation process would support an evolution, in the U.S. and internationally, towards engaging accountability agents as a supplemental means for ensuring that organizations and providers involved in the management, storage, and transport of IIHI adhere to policies and practices that protect the privacy and security of information.
It is also our expectation that validation would be voluntary. In other words, the validation process established as part of the governance mechanism would not be mandatory and would only apply in so far as an entity deciding that there would be value (e.g., prestige, competitive advantage) in seeking validation. That said, once the validation process is established, much like other government programs on which subsequent policy objectives could be leveraged, it would be possible for other public and private organizations to specify NVE recognition as a condition in awarding contracts, procurements and/or in other situations where validation would be beneficial.
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Question 7:
We intend to use notice and comment rulemaking to establish the structures, processes, and initial requirements that would be necessary for the governance mechanism to operate. Under the governance mechanism we are considering, ONC would retain certain responsibilities to ensure the governance mechanism's proper implementation, but would also seek to delegate, where possible and appropriate, certain other responsibilities that we believe can best be performed by the private sector.
Generally speaking, we anticipate that the National Coordinator's and ONC's responsibilities as part of the governance mechanism would include:
• Endorsing and adopting CTEs, in accordance with the National Coordinator's authority at section 3001(c)(1)(A) and processes identified at section 3004 under the PHSA, and publishing interpretative guidance on the means to comply with adopted CTEs;
• Facilitating the receipt of input from the HIT Policy and Standards Committees and other interested parties
• The selection and oversight processes for an accreditation body that would be responsible for accrediting organizations interested in becoming validation bodies;
• Authorizing and overseeing validation bodies which would be responsible for validating that eligible entities have met adopted CTEs;
• Administering a process to classify the readiness for nationwide adoption and use of technical standards and implementation specifications to support interoperability related CTEs; and
• Overall oversight of all entities and processes established as part of the governance mechanism.
Question 8:
Similar to the roles and responsibilities we established under the permanent certification program for HIT (76 FR 1262), we could see establishing a process by which the National Coordinator would approve a single body to accredit and oversee “validation bodies.” The process considered in this RFI, however, would differ from the HIT certification programs in that validation would evaluate an entity's conformance to adopted CTEs as opposed to a particular product's (
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Question 12:
We anticipate that potential NVEs could include, but would not be limited to, the following types of entities that provide services to facilitate electronic health information exchange: EHR developers; regional, state, local or specialty-based health information exchanges; health information service providers; State agencies; Federal agencies, and integrated delivery networks.
In order to provide a baseline level of trust in NVEs, we think that it could be helpful to establish upfront eligibility criteria such as the ones discussed below. We are considering that entities interested in becoming NVEs would need to:
• Meet all solvency and financial responsibility requirements imposed by the statutes and regulatory authorities of the State or States in which it, or any subcontractor performing some or all of its functions, would serve. We are considering requiring a prospective NVE make some type of financial disclosure filing as well as provide evidence that it has a surety bond or some other form of financial security.
• Have the overall resources and experience to fulfill its responsibilities in accordance with the CTEs when performing health information exchange services. We are considering whether an entity would need to have at least one year of experience.
• Serve a sufficient number of providers to permit a finding of effective and efficient administration. Under this criterion, however, no prospective NVE would be deemed ineligible if it only served providers located in a single State.
• Have to be a valid business or governmental entity operating in the United States.
• Have not had civil monetary penalties, criminal penalties, or damages imposed, or have been enjoined for a HIPAA violation (by HHS, the Department of Justice, or State Attorneys General) within two years prior to seeking validation.
• Not be listed on the Excluded Parties List System maintained by the General Services Administration which includes information regarding entities debarred, suspended, proposed for debarment, excluded or disqualified under the non-procurement common rule, or otherwise declared ineligible from receiving Federal contracts, certain subcontracts, and certain Federal assistance and benefits.
• Not be listed on the List of Excluded Individuals and Entities maintained by the Office of Inspector General (OIG). The OIG has the authority to exclude individuals and entities from Federally funded health care programs pursuant to sections 1128 and 1156 of the Social Security Act and maintains a list of all currently excluded individuals and entities called the List of Excluded Individuals and Entities.
We include the HIPAA civil money penalty criterion as we expect that most entities that would qualify as NVEs would be business associates of covered entities as defined in the HIPAA Rules, or in some cases covered entities themselves, and therefore, would be directly subject to the requirements and standards of the HIPAA Privacy,
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Question 16:
Throughout the history of the nationwide health information network, a strong emphasis has been placed on ensuring broad stakeholder participation in the network's development and governance.
Question 17:
As the HIT Policy Committee and stakeholder feedback over time have indicated, any governance mechanism established for the nationwide health information network would need to include some method for monitoring and transparent oversight. To mitigate confusion in the marketplace, protect consumer rights, and help ensure health care provider satisfaction, we believe a process to receive and address complaints as well as a process to revoke an NVE's status would need to exist. While the revocation of an NVE's status may be the most severe “penalty” ONC could impose, we also realize that when a penalty is so substantial there can be a tendency to pursue other measures to correct an identified issue except in the case of severe violations.
We also anticipate that monitoring and transparent oversight could be conducted by different stakeholders as part of nationwide health information network governance. While ONC could retain overall authority for monitoring and oversight, we also believe that the accreditation body and validation bodies involved in determining compliance with the adopted CTEs could also play oversight roles. For example, validation bodies would be responsible for monitoring and overseeing the NVEs they have validated. Furthermore, other modes of monitoring and enforcement could also play a role, such as: voluntary industry self-policing, a complaint/ombudsman role for a non-governmental entity, civil lawsuits. That said, we do not believe that some of these enforcement or monitoring methods would necessarily be effective, particularly in light of the voluntary validation framework we are considering. Moreover, Federal agencies including the Federal Trade Commission (FTC) and the HHS Office for Civil Rights (OCR) have enforcement authority within their regulatory jurisdictions and can already act on complaints of certain improper conduct. For instance, the FTC could investigate alleged misconduct related to validation status through the Federal Trade Commission Act (15 U.S.C. 45(a) and 52). A negative determination could lead to revoking an NVE's public representation of conformance to the adopted CTEs. Similarly, OCR, which enforces the HIPAA Privacy and Security Rules, could investigate alleged violations of the HIPAA Rules, the outcome of which could impact an NVE's validation of conformance to certain CTEs.
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Question 19:
If we were to pursue a validation approach, we believe that entities that have been successfully validated in accordance with the CTEs should be able to publicly represent themselves in some manner as complying with the adopted CTEs. We think this public representation could stimulate market demand for NVE services in the health information exchange marketplace.
We assume that NVEs would need to conform to some CTEs regardless of the specific electronic health information exchange service(s) or activities provided. We believe this approach could create a core trust baseline for all NVEs and that such commonality could strengthen the public's trust of NVEs and NVEs' trust of other NVEs. Finally, we assume that some NVEs could perform services or activities unrelated to adopted CTEs. In such cases, we believe it would be necessary for there to be a clear distinction between the recognition an NVE receives under the governance mechanism and the other services or activities it supports but for which validation has not been provided.
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Question 21:
We recognize and expect that electronic health information exchange capacity will continue to accelerate over the coming years. With this additional capacity, new ways for individuals to fully participate in their health care, and activities to harness this capacity to improve population health and develop a “learning health care system” will be available. As we closely watch other activities in the public and private sectors, we anticipate that the CTEs we are considering in this first rulemaking will need to be revised, that other CTEs will need to be retired to reflect the changing electronic health information exchange landscape, and that new CTEs will be needed. Our goal in discussing this initial set of CTEs is to identify a starting point, and then eventually support as broad a range of electronic exchange activities as practicable given the maturity of technical standards and policies for electronic exchange. The following discussion reflects ONC's current thinking regarding a first set of CTEs that could be adopted to support a variety of electronic exchange activities, nationwide.
A Code of Fair Information Practice was first articulated by an Advisory Committee to the Secretary of the US Department of Health, Education, and Welfare in a 1973 report,
We assume that most NVEs will perform services involving the use or disclosure of IIHI on behalf of health plans and health care providers. Accordingly, we believe that nearly all NVEs would be HIPAA business associates of health plans and health care providers and, pursuant to the HITECH Act, subject to the use and disclosure standards and implementation specifications of the HIPAA Privacy Rule as well as the security standards and implementation specifications in the HIPAA Security Rule. We expect these NVEs would comply with these rules.
Although the HIPAA Privacy and Security Rules would apply to nearly all NVEs in some way, the governance mechanism and specifically the CTEs would, in part, serve to address limited instances of electronic exchange not covered under the privacy and security protections afforded by the HIPAA Privacy and Security Rules. First, the CTEs would extend privacy and security requirements to non-HIPAA-covered entities and non-HIPAA-business associates that engage in nationwide electronic exchange. Second, the CTEs would establish additional requirements not currently addressed by the HIPAA Privacy and Security Rules. Finally, the HIPAA Privacy Rule sets required baseline protections and was not necessarily intended to reflect best practices
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For most health care organizations in the United States, the HIPAA Security Rule is the preeminent framework for securing electronic health information. Published in February 2003, the HIPAA Security Rule sets forth a flexible and scalable approach to apply to a broad range of HIPAA covered entities, including covered provider practices (large and small), payers, and health care clearinghouses, all of which have different needs and resources with respect to securing electronic health information in their environments. In providing this flexibility, the HIPAA Security Rule provides both “required” and “addressable” implementation specifications. Covered entities must meet the “required” implementation specifications, but are permitted to take equivalent, alternative approaches to “addressable” implementation specifications if the covered entity has determined that such implementation specifications would not be reasonable or appropriate for the entity's particular environment. In 2009, with the enactment of the HITECH Act, Congress specified that sections 164.308, 164.310, 164.312, and 164.316 of title 45 of the Code of Federal Regulations shall apply to business associates in the same manner as they apply to covered entities. Accordingly, and because we believe that nearly all NVEs will be business associates of covered entities (or covered entities themselves), we believe that mirroring this statutory requirement is the best starting point for NVEs' overall security practices. That being said, one of our main goals in establishing a governance mechanism for the nationwide health information network is to establish a consistent trust baseline for electronic exchange. Thus, we believe that in order to strengthen the public's trust of NVEs and NVEs' trust of other NVEs that all of the HIPAA Security Rule's “addressable” implementation specifications should be required for all NVEs. We believe that this approach provides greater certainty and more uniformity with respect to the security practices NVEs would need to follow.
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Question 23:
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We believe that it is important for an NVE to offer the parties for which it facilitates exchange a high degree of certainty that only authorized parties are able to use its exchange services. The requirement to authenticate and authorize the parties for which the NVE facilitates exchange could be accomplished either directly or indirectly by the NVE. In the case of the latter, the NVE would need to require the party for which it facilitates electronic exchange to perform authentication and authorization in order to be in compliance with this CTE. We believe that if an NVE cannot directly authenticate and authorize the parties for which it facilitates exchange (which could be at an organizational level), that it would be critical for the NVE to “flow down” these responsibilities and obtain reasonable assurance from the party(ies) for which it facilitates exchange that only authenticated and authorized personnel are able to access electronic exchange services it facilitates. For example, if the NVE were to facilitate an electronic exchange for a hospital, it would be able to satisfy this CTE (indirectly) by ensuring that the hospital had a process in place to authenticate and authorize its own personnel's use of the exchange services provided by the NVE. In proposing the adoption of this CTE, we would also look to NIST SP800–63(v1.02) “Electronic Authentication Guideline” and any other best practices
Question 24:
Question 25:
Question 26:
•
In considering the recommendations that we received from the HIT Policy Committee,
In terms of providing meaningful choice, we believe that an NVE should be required to do the following to satisfy this CTE, either: directly provide the patient with meaningful choice regarding the exchange of their IIHI; or ensure (with some means of verification) that the health care provider for which it facilitates electronic exchange has provided individuals with meaningful choice regarding the exchange of their IIHI.
Mindful that the HIT Policy Committee's recommendations are premised on the belief that different means of exchange may invoke different privacy and security concerns, we are considering, within the context of Interoperability CTE I–1,
Question 27:
Question 28:
Question 29:
Question 30:
•
Encryption is often regarded as a best practice for maintaining the confidentiality of IIHI transmitted across networks. To satisfy this condition, we believe that an NVE would need to be able to either (1) exchange already encrypted IIHI, (2) encrypt IIHI before exchanging it, or (3) establish and make available encrypted channels through which electronic exchange could take place (or do any combination of the above). We would expect NVEs to implement industry best practices for doing so. In order to provide some degree of flexibility, we would establish a general CTE for encryption of data in motion and publish more specific guidance on best practices. These requirements and guidelines would be consistent with the guidance provided by HHS' OCR related to breach notification and standards for rendering unsecured protected health information unusable, unreadable, or indecipherable to unauthorized individuals.
Question 31:
•
Under the HIPAA Privacy Rule (45 CFR 164.520), individuals have the right
The type of notice contemplated by this CTE would differ in certain aspects from a HIPAA Privacy Rule NPP. First, rather than a notice directed only to consumers whose health information is being used or disclosed, we believe that NVEs should clearly give advance notice to those who use their services, as well as to the general public, why they collect IIHI, how it is used, and to whom and for what reason it is disclosed. Second, with the goal of increasing public trust and enabling electronic exchange, we believe that an NVE should give notice about what it actually does do, rather than what it is legally permitted to do, with the IIHI for which it is responsible for exchanging. Third, we believe a NVE should give explicit and specific notice about certain uses and disclosures of health information, such as the specific circumstances when it will de-identify health information and provide it to third parties. For example, if the NVE de-identifies IIHI and then provides such de-identified information to pharmaceutical or research companies, it would need to include a description of this action in its notice to satisfy the CTE described above. This would address the concerns of some stakeholders, including certain members of the HIT Policy Committee, that certain persons and organizations may not be fully aware that an entity transmitting data on their behalf may de-identify their data and then share such de-identified data with third parties. We also believe this CTE is consistent with the privacy and security “core values” recommended by the HIT Policy Committee on September 1, 2010.
Question 32:
Question 33:
Question 34:
Question 35:
Question 36:
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As noted above, some stakeholders, as well as the HIT Policy Committee, have expressed concern that certain persons may not be fully aware that someone transmitting data on their behalf may use de-identified data for profit seeking opportunities. This scenario appears to have raised two concerns: the potential that certain recipients of de-identified data possess their own established databanks and may be able to re-identify the data by comparing it to existing data; and providers' losing trust in a system in which the data for which they are responsible, although de-identified, is monetized. We recognize that under the HIPAA Privacy Rule, a provider could prohibit a business associate in its business associate agreement from de-identifying data and then subsequently using the de-identified data. However, we are aware of circumstances where certain business associates have drafted business associate agreements that allow for such de-identification of data for the business associates' purposes. Additionally, smaller covered entities may lack the economic resources and expertise necessary to effectively negotiate business associate agreements, in particular with respect to preventing the commercialization of health information. We believe that having a CTE prohibiting NVEs from using or disclosing de-identified health information for economic gain would alleviate the concerns that have been raised about potential re-identification of the data.
Question 37:
Question 38:
•
We are considering requiring NVEs to demonstrate that the systems and processes they have in place can assure users that its services will be available when needed. We consider high availability to mean near 24 hours a day, 7 days a week availability. In other words, to demonstrate compliance with this CTE, an NVE would need to ensure its services would be available at all times, except for very limited, scheduled periods of time. We believe such a requirement is necessary because the need to engage in electronic exchange may occur at any time. In cases where two or more NVEs are necessary to route health information from the source to its ultimate destination, NVEs should have reasonable assurances that the other parties on which they depend to route health information will be available for electronic exchange.
Question 39:
•
The HIPAA Privacy regulations at 45 CFR 164.524 provide individuals with a right to access information maintained in a Designated Record Set (as defined at 45 CFR 164.501). However, this right may not extend to all IIHI that is used or assembled by NVEs to facilitate electronic exchange. Consistent with the “Access” principle expressed in the Privacy and Security Framework, we are considering adopting a CTE that would require an NVE to provide individuals with access to any information the NVE creates that results in a unique set of IIHI. In this context, and for the purpose of this CTE, we consider the IIHI that an NVE assembles or aggregates itself and retains on an individual to constitute a “unique set of IIHI” because the NVE would be the only party through which this information could be accessed (i.e., the individual would not be able to readily recreate the NVE's unique set of IIHI by requesting access to the information held by each of his or her providers that have a relationship with the NVE). For example, if multiple health care providers seek to electronically exchange health information for a given patient, then the NVE facilitating these exchanges would be in a position to aggregate the patient data it receives thus generating a unique
Question 40:
•
Building on the Safeguard CTE [S–8] above and consistent with the “Correction” principle in the Privacy and Security Framework, we believe that any NVE that must provide an individual with the right to access the unique set(s) of IIHI it maintains, should also be required to provide individuals with the right to request a correction and/or annotation to this unique set of IIHI.
Question 41:
Question 42:
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The HIPAA Privacy Rule does not set specific requirements for when a health care provider may request information maintained by other providers for treatment purposes. The duty to protect health information is placed almost exclusively on the discloser, and the requester bears little responsibility.
In theory, a query and response model would allow a provider to seek records of unknown individuals by querying on a particular diagnosis or demographic information and retrieve all records responsive to the query.
Question 43:
Question 44:
As previously described, Interoperability CTEs would focus on the technical conditions for electronic exchange. This would include the standards and implementation specifications needed to ensure that electronic health information can be exchanged in a manner that allows for consistent and meaningful interpretation across systems. While this initial set of Interoperability CTEs primarily focuses on transport standards and conditions needed to support planned electronic exchange, we believe that they could also include, where appropriate or necessary for electronic exchange to take place, additional specificity in the form of content exchange standards and vocabulary/code set standards.
This Interoperability CTE would address “planned” electronic exchange scenarios when the sender and receiver are known (
To satisfy this CTE, we are considering requiring an NVE to implement and use one of two types of transport specifications. The first type includes the transport specifications developed under the Direct Project, which are the Applicability Statement for Secure Health Transport, and the Cross-Enterprise Document Reliable Interchange (XDR) and Cross-Enterprise Document Media Interchange (XDM) for Direct Messaging. The second type includes the transport specification developed under the Exchange, SOAP–Based Secure Transport RTM version 1.0.
The Applicability Statement for Secure Health Transport specification describes how electronic health information can be securely transported using simple mail transport protocol (SMTP), Secure/Multipurpose Internet Mail Extensions (S/MIME), and X.509 certificates. The XDR and XDM for Direct Messaging specification describes the use of XDR and XDM as a means to transport electronic health information and would serve as a bridge between entities using/following web services and SMTP transport methods. We believe these two options would make it possible for a majority, if not all,
Question 45:
Question 46:
•
Digital certificates are used to create a high-level assurance that an organization exchanging electronic health information is the entity it claims to be. Therefore, having common baseline expectations for establishing digital certificates and making the public keys discoverable are foundational elements for rapid, scalable electronic exchange. In this regard, in April 2011, the HIT Standards Committee approved and transmitted a set of recommendations on digital certificates for the National Coordinator to consider. Digital certificates are used both as part of the transport specifications developed under the Direct Project as well as the Exchange to authenticate entities involved in electronic exchange. For the purposes of this CTE, we are considering adopting as requirements the recommendations expressed by the HIT Standards Committee, specifically its recommendations on the requirements and evaluation criteria for digital certificates. We are also considering its second recommendation with respect to cross-certifying with the Federal Bridge Certificate Authority (the Federal Bridge).
Question 47:
Question 48:
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The intent of this CTE is to provide guidance for NVEs to verify and match message subjects (
Before exploring the specifications for patient matching, the Power Team first developed a set of baseline assumptions around the appropriate levels of specificity and sensitivity. For this use case, the Power Team assumed that specificity was more critical than sensitivity and that specificity of at least 99.9% and sensitivity of 95% would be an appropriate range for ensuring a high level of matching accuracy and accountability. These levels were used because sensitivities lower than 95% could result in incomplete views of the patient's record and specificities lower than 99.9% could result in incorrect matching, putting both the patient and the inappropriately matched individual at risk.
In August 2011, the Patient Matching Power Team presented several recommendations relating to patient matching to the HIT Standards Committee, which were considered, adopted and submitted to the National Coordinator. Its recommendations included a general principle regarding matching sensitivity and specificity and suggested that a base set of patient attributes should be selected based on demonstrated achievement of those levels. The HIT Standards Committee also recommended that health care providers give patients more of a role in verifying attributes used for matching and that HIT developers should provide a method for identifying missing or unavailable data to be identified and further, that basic validity checks be performed on patient attributes (such as only accepting dates in the past for dates of birth, no more than six 9s or six 0s in a row in the Social Security Number). Finally, the HIT Standards Committee recommended that patient query patterns should follow the “Exchange patient query implementation guide” and that the CDA R2 header formats should be used to represent patient attributes. It was also noted that responses to patient queries should not return any patient attributes that were not included in the original query, but that it may be appropriate for the response to indicate other data that could be useful in matching this patient.
Question 49:
Question 50:
Question 51:
The third category of CTEs we are considering would focus on an NVE's business practices, including the operational and financial practices to which an NVE would need to adhere. We believe this category of CTEs would be necessary in order to ensure electronic exchange among NVEs takes place unimpeded.
•
Generally speaking, this CTE expresses our belief that any health care provider using an NVE should be able to engage in unimpeded, planned electronic health information exchange with another health care provider using a different NVE. We believe that requiring NVEs to meet this CTE would instill greater confidence in planned electronic health information exchange and among health care providers who would rely on NVEs. In satisfying this CTE, an NVE could not impose business requirements on other NVEs, such as fees that would otherwise prevent another NVE from exchanging electronic
Question 52:
Question 53:
Question 54:
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In order for planned electronic exchange to take place, and to satisfy this CTE, NVEs would need to make openly available to other NVEs or NVE customers certain services they offer. For example, for electronic exchange to take place following the Direct Project specifications, it would be necessary for an NVE to make openly available a directory of addresses of potential recipients and locatable public keys. While we recognize that the industry is still building its capacity to address this CTE, we believe that it is achievable.
•
In order to assess our progress towards nationwide availability and use of health information exchange, it would be useful to have data about the use of NVE services, the types of users, and transaction volume for their validated services. The data should be collected and made available at the aggregate level so as not to expose information about specific customers or patients.
Question 55:
Stakeholders are encouraged to provide feedback on this initial set of CTEs and in submitting comments suggest other CTEs that we should also consider. The following table summarizes the CTEs as presented in this RFI.
One approach for implementing nationwide electronic exchange can be observed through the Nationwide Health Information Network Exchange. As we described in the background section of this RFI, the Exchange is a confederation of trusted entities that have passed certain requirements for participation. One such requirement includes signing the DURSA, which serves as a legal framework for sharing electronic health information among participants in the Exchange. The DURSA includes “performance and service specifications” which the participating members agree to use in implementing secure electronic exchange. The most recent specifications used by participants in the Exchange can be found on ONC's Web site.
Question 56:
Question 57:
Question 58:
Question 59:
Assuming we were to pursue an approach that includes the adoption of CTEs as part of a governance mechanism for the nationwide health information network, we expect that additional CTEs and revisions to CTEs would be necessary to accommodate policy maturity and technical changes over time. We believe that an inclusive and transparent process to identify, modify, and retire CTEs would be needed to engage stakeholders and would result in more refined and widely accepted CTEs. The purpose of this process would be to identify and assess current electronic exchange needs and to provide a path for determining how best to address them through the CTEs. We envision that rulemaking could be necessary every two years, most likely on years that would alternate with regulations published for EHR Incentive Programs, to keep the CTEs up-to-date and to permit entities to seek validation to new CTEs for other more complex forms of electronic exchange.
We believe that an approach to a CTE maturity life cycle could start with the identification of “emerging” CTEs, followed by the identification of “pilot” CTEs, followed by “national” candidate CTEs which we would consider sufficiently mature to propose for adoption. We believe that the “pilot” stage could empower greater stakeholder participation in governance and could permit the direct submission of best practices to ONC or through one of our advisory committees. It could also potentially enable validation bodies to provide for validation to pilot CTEs which would provide further input in terms of the CTEs' readiness to be identified as national candidate CTEs. We could see using the HIT Policy Committee and HIT Standards Committee to provide a forum to solicit public input on identifying best practices and piloting CTEs in a manner consistent with their statutory authority. We would further envision that this process would follow the procedures and comport with the requirements of section 3004 and other relevant sections of the PHSA, for the development and adoption of standards, implementation specifications, and certification criteria.
Question 60:
Question 61:
Question 62:
We believe that it would benefit the industry to include as part of the governance mechanism, a formal and transparent process to classify technical standards and implementation specifications that could ultimately be adopted within the Interoperability category of CTEs.
Through this process, technical standards and implementation specifications could be assigned to one of three classifications:
• “
• “
• “
We believe the governance mechanism can and should be used to promote innovation in the health information exchange market. Therefore, we believe with the identification of the Emerging and Pilot standards and implementation specifications, the governance mechanism could encourage groups of HIT stakeholders to test, learn about, and provide feedback on those standards and implementation specifications and their readiness to be promoted to the next classification.
Question 63:
The following figure generally illustrates the classifications discussed above. The upper right hand corner of the figure denotes standards classified as “National,” indicating readiness for national adoption. We highlight the fact that a technical standard could be considered highly mature, albeit, not very adoptable (upper left portion of the figure), or conversely, a standard could also be determined to be highly adoptable, but not very technically mature (lower right portion of the figure). In such instances we would task the HIT Policy and Standards Committees with providing advice on policy and technical justifications for whether a standard with these
Coupled with the annual process to identify, review, and assess standards and implementation specifications, we assume that a discrete set of objective criteria would be necessary to assess whether and when a technical standard or implementation specification should be classified differently. We believe the HIT Policy Committee would have a key role in prioritizing technical standards and implementation specifications needs and the HIT Standards Committee could have an integral role in advising ONC about how to classify such technical standards and implementation specifications. The HIT Standards Committee has had initial discussions on what classification criteria could look like, such as: maturity; market adoption, need; deployment complexity; and the maturity of the underlying technology for a given standard.
Question 64:
Question 65:
As part of an NPRM, we would perform a regulatory impact analysis consistent with Executive Order 12866 and other applicable requirements. The focus of the RFI is to obtain public comment on what would be necessary to launch the structures, processes, and initial requirements to establish a governance mechanism for the nationwide health information network, but also interested in public comment on any publicly available data that we could subsequently use in a future NPRM's regulatory impact statement to determine the costs and benefits of such a governance mechanism.
Question 66:
1. The potential costs of validation;
2. The potential savings to States or other organizations that could be realized with the establishment of a validation process to CTEs;
3. The potential increase in the secure exchange of health information that might result from the establishment of CTEs;
4. The potential number of entities that would seek to become NVEs; and
5. The NVE application and reporting burden associated with the conceptual proposals we discuss.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Amendment 11 to the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic (FMP), as prepared and submitted by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils). If implemented, this rule would limit spiny lobster fishing in certain areas in the exclusive economic zone (EEZ) off the Florida Keys to protect threatened species of corals. The intent of this proposed rule is to protect threatened coral colonies and address the requirements of a 2009 Endangered Species Act (ESA) biological opinion on the spiny lobster fishery.
Written comments must be received on or before June 14, 2012.
You may submit comments on the proposed rule identified by “NOAA–NMFS–2011–0223” by any of the following methods:
•
•
To submit comments through the Federal e-Rulemaking Portal:
Comments received through means not specified in this rule will not be considered.
For further assistance with submitting a comment, see the “Commenting” section at
Electronic copies of documents supporting this proposed rule, which include a draft supplemental environmental impact statement and a regulatory flexibility analysis, may be obtained from the Southeast Regional Office Web site at
Susan Gerhart, telephone: 727–824–5305, or email:
The spiny lobster fishery of the Gulf of Mexico (Gulf) and the South Atlantic is managed under the FMP. The FMP was prepared by the Councils and implemented through regulations at 50 CFR parts 622 and 640 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The ESA requires analyses to determine whether, and to what extent, fishing operations impact threatened species including threatened staghorn and elkhorn corals. A 2009 biological opinion on the continued authorization of the spiny lobster fishery contained specific terms and conditions required to implement the prescribed reasonable and prudent measures (
This rule proposes to prohibit spiny lobster trap fishing in 60 closed areas that cover a total of 5.9 mi
Amendment 11 also contains an action to consider a spiny lobster trap line marking requirement. The Councils considered alternatives under this management action but chose to take no action at this time to allow time for additional testing of line marking methods. The Florida Fish and Wildlife Conservation Commission is currently conducting a study of various methods for marking lobster trap lines that should be completed during 2013. The Councils intend to revisit the requirement to mark spiny lobster trap gear when the results of that study are available. The biological opinion, as amended, requires implementation of the terms and conditions regarding lobster trap line marking by August 6, 2017.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the amendment, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows.
The purpose of this proposed rule is to implement conservation measures to help protect threatened coral species in a manner that complies with measures established in the 2009 biological opinion on the spiny lobster fishery. The 2009 biological opinion was prepared in accordance with the ESA. The Magnuson-Stevens Act and the ESA provide the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. This rule would not establish any new reporting or record-keeping requirements.
This proposed rule, if implemented, would be expected to affect all vessels that engage in commercial trap fishing for spiny lobster in certain parts of the South Atlantic EEZ off Monroe County, Florida, as managed under the FMP. Landings of spiny lobster occur predominantly in the Florida Keys (Monroe County) and elsewhere in south Florida. A relatively small amount of spiny lobster landings have been reported for other states in the Gulf and South Atlantic since 1977. Fishing for spiny lobster in Florida is managed cooperatively by the Councils and the State of Florida. Florida collects the data used to analyze spiny lobster activity in the commercial and recreational sectors.
Commercial and for-hire fishing vessels that fish for spiny lobster in state and Federal waters off Florida must have the applicable Florida permits/licenses. For commercial vessels that want to tail lobster in Federal waters, a Federal lobster tailing permit is additionally required. On average, during 2006–2010, 776 vessels per year landed spiny lobster commercially in Florida. These 776 vessels averaged $47,274 per vessel annually in gross revenue for all species landed, with $28,489 for spiny lobster, while the remainder of their revenue came from the harvest of other species including stone crab, snapper-grouper, king mackerel, and shrimp. Among the 776 vessels, 271 landed spiny lobster from the EEZ. Out of the 271 vessels landing spiny lobster from the EEZ, there were 128 vessels that landed spiny lobster from the Florida Keys within the South Atlantic EEZ using trap gear, and they averaged $98,845 in gross revenue per vessel.
The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in commercial shellfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114112, shellfish fishing) for all its affiliated operations worldwide. A for-hire business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $7.0 million (NAICS code 713990, recreational industries). Based on the average revenue estimates provided above, all commercial and for-hire fishing vessels expected to be directly affected by this proposed rule are determined for the purpose of this analysis to be small business entities.
This proposed rule, if implemented, would prohibit the commercial harvest of spiny lobster using trap gear in certain areas of the South Atlantic EEZ off Florida (off Monroe County) to protect threatened species of coral. The commercial harvest of spiny lobster utilizing types of gear other than traps, notably diving gear, would not be prohibited through this proposed rule; however, the commercial harvest of spiny lobster using diving gear is estimated to be minimal in the proposed lobster trap gear closed areas. For-hire fishing for spiny lobster in the affected areas of the EEZ has not been quantified. For-hire activity is not subject to these proposed regulations; however, this activity could increase in the proposed closed areas as a result of the absence of commercial trap fishing.
For the approximately 128 vessels that land spiny lobster from the Florida Keys within the South Atlantic EEZ using trap gear, the proposed closure would reduce their gross revenue by an estimated 0.19 to 0.35 percent, annually. A reduction in gross revenue of .35 percent or less is generally not considered a significant economic impact. Because the reduction in gross revenue is the only anticipated economic impact from this action, the proposed closure would therefore not be expected to have a significant economic impact on the approximately 128 vessels that land spiny lobster from the Florida Keys within the South Atlantic EEZ using trap gear.
Because this action is not expected to have a significant impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
Fisheries, Fishing, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 640 is proposed to be amended as follows:
1. The authority citation for part 640 continues to read as follows:
16 U.S.C. 1801
2. In § 640.7, paragraph (y) is added to read as follows:
(y) Fish for a spiny lobster using trap gear in the areas specified in § 640.22(b)(4).
3. In § 640.22, paragraph (b)(4) is added to read as follows:
(b) * * *
(4) Fishing with spiny lobster trap gear is prohibited year-round in the following areas bounded by rhumb lines connecting, in order, the points listed.
(i) Lobster Trap Gear Closed Area 1.
(ii) Lobster Trap Gear Closed Area 2.
(iii) Lobster Trap Gear Closed Area 3.
(iv) Lobster Trap Gear Closed Area 4.
(v) Lobster Trap Gear Closed Area 5.
(vi) Lobster Trap Gear Closed Area 6.
(vii) Lobster Trap Gear Closed Area 7.
(viii) Lobster Trap Gear Closed Area 8.
(ix) Lobster Trap Gear Closed Area 9.
(x) Lobster Trap Gear Closed Area 10.
(xi) Lobster Trap Gear Closed Area 11.
(xii) Lobster Trap Gear Closed Area 12.
(xiii) Lobster Trap Gear Closed Area 13.
(xiv) Lobster Trap Gear Closed Area 14.
(xv) Lobster Trap Gear Closed Area 15.
(xvi) Lobster Trap Gear Closed Area 16.
(xvii) Lobster Trap Gear Closed Area 17.
(xviii) Lobster Trap Gear Closed Area 18.
(xix) Lobster Trap Gear Closed Area 19.
(xx) Lobster Trap Gear Closed Area 20.
(xxi) Lobster Trap Gear Closed Area 21.
(xxii) Lobster Trap Gear Closed Area 22.
(xxiii) Lobster Trap Gear Closed Area 23.
(xxiv) Lobster Trap Gear Closed Area 24.
(xxv) Lobster Trap Gear Closed Area 25.
(xxvi) Lobster Trap Gear Closed Area 26.
(xxvii) Lobster Trap Gear Closed Area 27.
(xxviii) Lobster Trap Gear Closed Area 28.
(xxix) Lobster Trap Gear Closed Area 29.
(xxx) Lobster Trap Gear Closed Area 30.
(xxxi) Lobster Trap Gear Closed Area 31.
(xxxii) Lobster Trap Gear Closed Area 32.
(xxxiii) Lobster Trap Gear Closed Area 33.
(xxxiv) Lobster Trap Gear Closed Area 34.
(xxxv) Lobster Trap Gear Closed Area 35.
(xxxvi) Lobster Trap Gear Closed Area 36.
(xxxvii) Lobster Trap Gear Closed Area 37.
(xxxviii) Lobster Trap Gear Closed Area 38.
(xxxix) Lobster Trap Gear Closed Area 39.
(xl) Lobster Trap Gear Closed Area 40.
(xli) Lobster Trap Gear Closed Area 41.
(xlii) Lobster Trap Gear Closed Area 42.
(xliii) Lobster Trap Gear Closed Area 43.
(xliv) Lobster Trap Gear Closed Area 44.
(xlv) Lobster Trap Gear Closed Area 45.
(xlvi) Lobster Trap Gear Closed Area 46.
(xlvii) Lobster Trap Gear Closed Area 47.
(xlviii) Lobster Trap Gear Closed Area 48.
(xlix) Lobster Trap Gear Closed Area 49.
(l) Lobster Trap Gear Closed Area 50.
(li) Lobster Trap Gear Closed Area 51.
(lii) Lobster Trap Gear Closed Area 52.
(liii) Lobster Trap Gear Closed Area 53.
(liv) Lobster Trap Gear Closed Area 54.
(lv) Lobster Trap Gear Closed Area 55.
(lvi) Lobster Trap Gear Closed Area 56.
(lvii) Lobster Trap Gear Closed Area 57.
(lviii) Lobster Trap Gear Closed Area 58.
(lix) Lobster Trap Gear Closed Area 59.
(lx) Lobster Trap Gear Closed Area 60.
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and the Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to request a new information collection for a post-wave tracking survey associated with the Food Safety Education Campaign. The post-wave survey is conducted after the initial tracking survey is completed, and the media campaign has begun and has had time to reach its intended audience.
Comments on this notice must be received on or before July 16, 2012.
FSIS invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:
• Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to
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•
Contact John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW., Room 6065 South Building, Washington, DC 20250, (202) 720–0345.
FSIS, in partnership with the Ad Council, the Food and Drug Administration, and the Centers for Disease Control and Prevention, developed a new national public service advertising campaign to educate the public about the importance of safe food handling and how to reduce the risks associated with foodborne illness. FSIS is seeking approval of a new information collection to help evaluate the impact of the Food Safety Education Campaign. The new collection will take the form of a post-survey of members of the target audience and will help gauge awareness of the advertising, attitudes regarding safe food preparation, and self-reported prevention behaviors. The post-wave survey will be fielded approximately 12 months following launch of the Food Safety Education Campaign, which occurred in July 2011, to monitor any shifts in attitudes, awareness, or behaviors in the target audience over time.
The campaign targets parents, ages 20 to 40, who are caregivers for children between the ages of 4 and 12. Parents have been identified as the target audience because they are most likely to be preparing food for themselves and others, and they have an incentive to listen to food safety messages and adopt or change their behaviors as a result.
The post-wave survey will be administered using a national random digit dial phone methodology in both English and Spanish. Each respondent will answer questions about their attitudes about food safety, their awareness of the risks of foodborne illness, their own efficacy with regard to preventing foodborne illness, and their own use of safe food-handling practices. The public service announcements (PSAs) will also be described to respondents in order to gauge recognition of the ads in market.
Once the post-wave survey is conducted, FSIS and the Ad Council will compare results to identify any shifts in attitudes, awareness, or behaviors that occurred as a result of the media campaign. The results of the post-wave survey will be used to assess the effectiveness of the campaign thus far and inform future rounds of PSAs.
FSIS has made the following estimates based upon an information collection assessment:
Copies of this information collection assessment can be obtained from John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW., Room 6065, South Building, Washington, DC 20250, (202) 720–0345.
Comments are invited on: (a) Whether the proposed collection of information
Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at 202–720–2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250–9410 or call 202–720–5964 (voice and TTY). USDA is an equal opportunity provider and employer.
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 7106, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Port of Portland, grantee of FTZ 45, requesting special-purpose subzone status for the facility of Shimadzu USA Manufacturing, Inc. (SUM), located in Canby, Oregon. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a–81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on May 8, 2012.
The proposed subzone is located at 1900 SE. 4th Avenue, Canby. A notification of proposed production activity has been submitted and will be published separately for public comment. The proposed subzone would be subject to the existing activation limit of FTZ 45.
In accordance with the Board's regulations, Christopher Kemp of the FTZ Staff is designated examiner to review the application and make recommendations to the Board.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is June 25, 2012. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to July 9, 2012.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Christopher Kemp at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
1. Privileged foreign status (19 CFR 146.41) must be elected on all foreign status ferrosilicon, molybdenum and titanium (HTSUS 7202.21, 8102.94, 8108.20 and 8108.90) admitted to the subzone.
2. NAS shall submit supplemental reporting data, as specified by the Executive Secretary, for the purpose of monitoring by the FTZ staff.
The Port of Olympia, grantee of FTZ 216, submitted a notification of proposed production activity on behalf of Callisons, Inc. (Callisons), located in Chehalis and Lacey, Washington. The Callisons facility is located within Site 3 and Site 15 of FTZ 216. The facility is used for the production and distribution of mint products, primarily for the food, confectionary, pharmaceutical and fragrance industries.
Production under FTZ procedures could exempt Callisons from customs duty payments on the foreign status components used in export production. On its domestic sales, Callisons would be able to choose the duty rates during customs entry procedures that apply to essential oils of peppermint (mentha piperita), other essential mint oils, odoriferous mixtures for use by the food and drink industries and non-alcohol perfume bases (duty rate ranges from duty-free to 4.2%) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
Components and materials sourced from abroad include: menthol, cyclenic ethers and derivatives, cyclenic ketones without oxygen, essential oils of peppermint (mentha piperita), essential oils of mint and essential oils of eucalyptus (duty rate ranges from duty-free to 4.8%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is June 25, 2012.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Elizabeth Whiteman at
The Mississippi Coast Foreign-Trade Zone, Inc., grantee of FTZ 92, submitted a notification of proposed production activity on behalf of Gulf Ship, LLC (Gulf Ship), located in Gulfport, Mississippi. The Gulf Ship facility is located within Site 3 of FTZ 92. The facility is used for the construction and repair of oceangoing vessels.
Production under FTZ procedures could exempt Gulf Ship from customs duty payments on foreign status components used in export production. On its domestic sales, Gulf Ship would be able to choose the duty rates during customs entry procedures that apply to oceangoing vessels (duty rate—free) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
Components and materials sourced from abroad include: marine engines, winches, steering gears, electric motors, generators, raceways, doors, tefrotex, floor coatings, rock wool, couplings, universal joints, bobbins, rubber seals, valves, man-holes, ladders, handrails, vibration control dampeners, oil booms, lighting equipment, controllers, electrical cabinets, bearings, heaters, transmission shafts, blades, and thruster parts (duty rate ranges from free to 7.0%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is June 25, 2012.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Pierre Duy at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Now, therefore, the Board hereby orders:
The application to reorganize and expand FTZ 89 under the alternative site framework is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28, to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project, to a five-year ASF sunset provision for magnet sites that would terminate authority for Sites 1, 3, 5, 6, 7 and 9 if not activated by May 31, 2017, and to a three-year ASF sunset provision for usage-driven sites that would terminate authority for Sites 8, 10 and 11 if no foreign-status merchandise is admitted for a
Import Administration, International Trade Administration, Department of Commerce.
John Drury or Angelica Mendoza, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Room 7850, Washington, DC 20230; telephone: (202) 482–0195, or (202) 482–3019, respectively.
On January 10, 2012, the Department published the preliminary results of administrative review for the 2009–2010 period of review (POR) of honey from Argentina.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time period to a maximum of 180 days after the date on which the preliminary results are published.
The Department has determined it is not practicable to complete this review within the current time limit and requires additional time regarding the issue of which rate to assign to the non-selected companies subject to this review. Accordingly, the Department is extending the time limit for completion of the final results of this administrative review by 30 days (
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
On April 25, 2012, the United States Court of International Trade (“CIT”) sustained the Department of Commerce's (“the Department”) final results of redetermination pursuant to voluntary remand of the 2006–2007 antidumping duty administrative review of pure magnesium from the People's Republic of China (“
Laurel LaCivita, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4243.
In the
Shortly thereafter, the CAFC issued its decision in
In its decision in
Because there is now a final court decision, we are amending the
In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on entries of the subject merchandise exported by TMI during the POR using the revised assessment rate calculated by the Department in the
This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Bureau of Consumer Financial Protection.
Notice and request for comment.
The Bureau of Consumer Financial Protection (“Bureau”), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3507(a)(1)(D)). The Bureau is soliciting comments regarding the information collection requirements relating to the Generic Clearance for Collection of Information on Compliance Costs and Other Effects of Regulations that has been submitted to the Office of Management and Budget for review and approval. A copy of the submission, including copies of the proposed collection and supporting documentation, may be obtained by contacting the agency contact listed below.
Written comments are encouraged and must be received on or before June 19, 2012 to be assured of consideration.
You may submit comments to:
•
•
Requests for additional information should be directed to the Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552, or through the internet at
A number of Federal laws require agencies to consider the benefits, costs, and impacts of rulemaking actions, including the Regulatory Flexibility Act and the Paperwork Reduction Act. Furthermore, Section 1022(b)(2)(A) of the Dodd-Frank Act calls for the Bureau to consider the potential benefits and costs of certain rules to consumers and “covered persons,” including depository and non-depository providers of consumer financial products and services (“providers.”) This consideration includes an assessment of the impacts of rules on consumers in rural areas and on depository institutions and credit unions with total assets of $10 billion or less as described in section 1026 of the Dodd-Frank Act. As part of its analysis of benefits and costs of certain rulemakings, the Bureau will consider, among other things, the potential ongoing costs for a provider as well as the implementation costs the provider may incur in order to comply with a regulation.
The Federal consumer financial laws for which the Bureau has been granted rulemaking authority that regulate aspects of the mortgage and remittance markets include: Alternative Mortgage Transaction Parity Act; the Consumer Leasing Act; the Equal Credit Opportunity Act; the Fair Credit Billing Act; the Fair Credit Reporting Act; the Fair Debt Collection Practices Act; the Federal Deposit Insurance Act; the
With respect to remittances, as required by the Dodd-Frank Act, the Bureau has adopted regulations implementing new statutory protections for remittance consumers which take effect in February 2013. The Bureau has also issued a proposal on several outstanding issues related to remittances, which the Bureau is seeking to finalize before the February effective date.
In order to fulfill the Bureau's rulemaking mandates, the Bureau seeks to collect qualitative information from mortgage and remittance industry participants regarding the potential compliance costs of these rules and other effects these rules may have for providers and consumers.
In proposing new rules for providers in the mortgage markets—whether as to the enumerated statutory mandates listed above or as to potential rulemakings pursuant the Bureau's general rulemaking authority under the relevant Federal consumer financial protection laws—the Bureau will consider the potential implementation and ongoing compliance activities and associated costs of the proposed rules. Accordingly, the Bureau seeks to collect qualitative information on the potential costs of complying with potential new regulations and other effects the rules may have for providers and consumers. Through the collections under this generic clearance, the Bureau aims to understand the effects of potential regulations on providers and consumers, the ways in which providers may comply with potential regulations, and the costs associated with compliance. By collecting this information in advance of and during the rulemaking process, the Bureau seeks to ensure that it has considered the compliance burdens and costs before completing a rulemaking action.
The Bureau is particularly interested in collecting information on the impact of regulatory changes on the unit costs of delivering specific consumer financial products and services (e.g., mortgage originations, mortgage servicing, and remittance transfers). This will help determine whether proposed rules may have unnecessary costs for providers or consumers.
In order to gather the information indicated above, the Bureau intends to use structured interviews, focus groups, conference calls, written questionnaires, and online surveys. The Bureau will seek different providers' estimates of compliance burdens on their respective institutions. The Bureau recognizes that burdens vary depending on the size and type of the institution, as well as on the products and services offered. Therefore, the collections of information will seek to sample providers that are representative of affected markets.
This Loan Verification Certificate (LVC) will serve as the means by which the U.S. Department of Education (the Department) collects certain information from commercial holders of Federal Family Education Loan (FFEL) Program loans that a borrower wishes to consolidate into the William D. Ford Federal Direct Loan (Direct Loan) Program under a special initiative announced by the White House in an October 25, 2011 fact sheet titled “Help Americans Manage Student Loan Debt.” Loans made under this initiative are known as Special Direct Consolidation Loans. The information collected on the LVC includes the amount needed to pay off the loans that the borrower wants to consolidate and other information required by the Department to make and service a Special Direct Consolidation Loan.
Interested persons are invited to submit comments on or before June 14, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The
Office of Elementary and Secondary Education, Department of Education
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2012.
In accordance with 34 CFR 75.105(b)(2)(ii) and (iv), this priority is from section 8007(b)(2)(A) of the Elementary and Secondary Education Act of 1965, as amended (Act) (20 U.S.C. 7707(b)), and the regulations for this program in 34 CFR 222.177.
This priority is: Priority 1 emergency repair grants. An LEA is eligible to apply for an emergency grant under the first priority of section 8007(b) of the Act if it—
(a) Is eligible to receive formula construction funds for the fiscal year under section 8007(a) of the Act (20 U.S.C. 7707(a));
(b)(1) Has no practical capacity to issue bonds;
(2) Has minimal capacity to issue bonds and has used at least 75 percent of its bond limit; or
(3) Is eligible to receive funds for the fiscal year for heavily impacted districts under section 8003(b)(2) of the Act (20 U.S.C. 7707(b)(2)); and
(c) Has a school facility emergency that the Secretary has determined poses a health or safety hazard to students and school personnel.
For competitions with FYs 2002, 2003, 2004, 2005, 2008, and 2009 funds under this program, the amounts requested by applicants for Priority 1 grants exceeded the funds available.
20 U.S.C. 7707(b).
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The Department is not bound by any estimates in this notice.
Consistent with the requirements of the Absolute Priority, an LEA is eligible to receive an emergency grant under the first priority of section 8007(b) of the Act if it—
(a) Is eligible to receive formula construction funds for the fiscal year under section 8007(a) of the Act (20 U.S.C. 7707(a)) because it enrolls a high percentage (at least 50 percent) of federally connected children in average
(b)(1) Has no practical capacity to issue bonds (as defined in 34 CFR 222.176);
(2) Has minimal capacity to issue bonds (as defined in 34 CFR 222.176) and has used at least 75 percent of its bond limit; or
(3) Is eligible to receive funds for the fiscal year for heavily impacted districts under section 8003(b)(2) of the Act (20 U.S.C. 7707(b)(2)); and
(c) Has a school facility emergency that the Secretary has determined poses a health or safety hazard to students and school personnel. In making emergency grant awards, the Secretary must also consider the LEA's total assessed value of real property that may be taxed for school purposes, its use of available bonding capacity, and the nature and severity of the school facility emergency.
2. a.
Consistent with 34 CFR 222.192, an applicant will be required to submit financial reports for FYs 2010, 2011, and 2012, or the applicant's most recently available audited financial reports for three consecutive fiscal years, showing closing balances for all school funds. If significant balances (as detailed in 34 CFR 222.192) are available at the close of the applicant's FY 2012, or its most recently audited year, that are not obligated for other purposes, those funds will be considered available for the proposed emergency repair project, which may reduce the amount of funds that may be awarded or eliminate the applicant's eligibility for an emergency grant award under this competition.
b.
1.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the person or team listed under
2.
Page Limit: We recommend that applicants limit their responses in each applicable narrative section to two pages with a one-inch margin in 12 point font, double spaced.
3.
Applications for grants under this competition must be submitted electronically using G5, the Department's grant management system, accessible at
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: September 11, 2012.
4.
5.
We reference additional regulations outlining funding restrictions in the
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2–5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any
7.
Applications for grants under the Impact Aid Discretionary Construction Grant Program, CFDA 84.041C, must be submitted electronically using the G5 system, accessible through the Department's G5 site (
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
While completing your electronic application, you will be entering data online that will be saved into a database. You may not email an electronic copy of a grant application to us.
Please note the following:
• You must complete the electronic submission of your grant application by 4:30:00 p.m., Washington, DC time, on the application deadline date. G5 will not accept an application for this competition after 4:30:00 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The regular hours of operation of the G5 Web site are 6:00 a.m. Monday until 7:00 p.m. Wednesday; and 6:00 a.m. Thursday until 8:00 p.m. Sunday, Washington, DC time. Please note that the system is unavailable between 8:00 p.m. on Sundays and 6:00 a.m. on Mondays, and between 7:00 p.m. on Wednesdays and 6:00 a.m. on Thursdays, Washington, DC time, for maintenance. Any modifications to these hours are posted on the G5 Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Discretionary Construction Program under Section 8007(b) and all necessary signature pages.
• You must upload all additional narrative documents and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable .PDF or submit a password protected file, we will not review that material.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgment that will include a PR/Award number (an identifying number unique to your application).
• Within three working days after submitting your electronic application, you must fax or email a signed copy of the cover page and the emergency certification form for the Application for Discretionary Construction Program under Section 8007(b) to the Impact Aid Program after following these steps:
(1) Print a copy of the application from G5 for your records.
(2) The applicant's Authorizing Representative must sign and date the cover page. The local certifying official must sign the certification for an emergency application. These forms must be submitted within three days of the application deadline in order to be considered for funding under this program.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the Application for Discretionary Construction Program under Section 8007(b).
(4) Fax or email the signed cover page and independent certification for the Discretionary Construction Program under Section 8007(b) to the Impact Aid Program at 1–866–799–1273 or by email to
• We may request that you provide us original signatures on other forms at a later date.
(1) You are a registered user of the G5 system and you have initiated an electronic application for this competition; and
(2) (a) G5 is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) G5 is unavailable for any period of time between 3:30 p.m. and 4:30:00 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgment of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to G5;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the
Address and mail or fax your statement to: Nyonu Wi Akamefula, Impact Aid Program, U.S. Department of Education, 400 Maryland Avenue SW., Room 3C121, Washington, DC 20202–6244. Phone: 202–260–2410. FAX: 1–866–799–1273. EMAIL:
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education, Impact Aid Program, Attention: (CFDA Number 84.041C), Room 3C155, 400 Maryland Avenue SW., Washington, DC 20202–6244.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Impact Aid Program, Attention: (CFDA Number 84.041C), Room 3C155, 400 Maryland Avenue SW., Washington, DC 20202–6244. The Impact Aid Program accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope—if not provided by the Department—the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Impact Aid Program will mail to you a notification of receipt of your grant application. If you do not receive this grant notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Impact Aid Program at (202) 260–3858.
1.
(1) Need for project/severity of the school facility problem to be addressed by the proposed project (30 points).
(a) Justification that the proposed project will address a valid emergency, and consistency of the emergency description and the proposed project with the certifying local official's statement.
(b) Impact of the emergency condition on the health and safety of the building occupants or on program delivery. Applicants should describe the systems or areas of the facility involved, e.g., HVAC, roof, floor, windows; the type of space affected, such as instructional, resource, food service, recreational, general support, or other areas; the percentage of building occupants affected by the emergency; and the importance of the facility or affected area to the instructional program.
(2) Project urgency (28 points).
(a) Risk to occupants if the facility condition is not addressed. Applicants should describe projected increased future costs; the anticipated effect of the proposed project on the useful life of the facility or the need for major construction; and the age and condition of the facility and date of last renovation of affected areas.
(b) The justification for rebuilding, if proposed.
(3) Effects of Federal presence (30 points total).
(a) Amount of non-taxable Federal property in the applicant LEA (percentage of Federal property divided by 10) (10 points).
(b) The number of federally connected children identified in section 8003(a)(1)(A), (B), (C), and (D) of the Act in the LEA (percentage of identified children in LEA divided by 10) (10 points).
(c) The number of federally connected children identified in section 8003(a)(1)(A), (B), (C), and (D) of the Act in the school facility (percentage of identified children in school facility divided by 10) (10 points).
(4) Ability to respond or pay (12 points total).
(a) The percentage an LEA has used of its bonding capacity. Four points will be distributed based on this percentage so that an LEA that has used 100 percent of its bonding capacity receives all four points and an LEA that has used less than 25 percent of its bond limit receives only one point. LEAs that do not have limits on bonded indebtedness established by their States will be evaluated by assuming that their bond limit is 10 percent of the assessed value of real property in the LEA. LEAs deemed to have no practical capacity to issue bonds will receive all four points (4 points).
(b) Assessed value of real property per student (Applicant LEA's total assessed valuation of real property per pupil as a percentile ranking of all LEAs in the State). Points will be distributed by providing all four points to LEAs in the State's poorest quartile and only one point to LEAs in the State's wealthiest quartile (4 points).
(c) Total tax rate for capital or school purposes (Applicant LEA's tax rate for capital or school purposes as a percentile ranking of all LEAs in the State). If the State authorizes a tax rate for capital expenditures, then these data must be used; otherwise, data on the total tax rate for school purposes are used. Points will be distributed by providing all four points to LEAs in the State's highest-taxing quartile and only one point to LEAs in the State's lowest-taxing quartile (4 points).
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Upon receipt, Impact Aid program staff will screen all applications to eliminate any applications that do not meet the eligibility standards, are incomplete, or are late. Applications that do not include a signed cover page and a signed independent certification submitted by fax or email before midnight of the application deadline are considered incomplete and will not be considered for funding. Program staff will also calculate the scores for each application under criteria (3) and (4). Panel reviewers will assess the applications under criteria (1) and (2).
(a) Applications are ranked based on the total number of points received during the review process. Those with the highest scores will be at the top of the funding slate.
(b) Applicants may submit only one application for one educational facility. If an applicant submits multiple applications, the Department will only consider the first sequentially submitted application, as provided under 34 CFR 222.183.
(c) For applicants that request funding for new construction and that are selected for funding, the Department will require a feasibility of construction study prior to making an award determination. This independent third-party study must demonstrate that the area upon which the construction will occur is suitable for construction and will be able to sustain the new facility or addition. This study should include information to show that the soil is stable, the site is suitable for construction, and the existing infrastructure can serve and sustain the new facility.
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
Nyonu Wi Akamefula, Impact Aid Program, U.S. Department of Education, 400 Maryland Avenue SW., room 3C121, Washington, DC 20202–6244. Telephone: (202) 260–2410 or by email:
If you use a TDD or TTY, call the FRS, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
This priority is:
A research project that focuses on one or more of the following geographic areas: Africa, East Asia, Southeast Asia and the Pacific Islands, South Asia, the Near East, Central and Eastern Europe and Eurasia, and the Western Hemisphere (excluding the United States and its territories). Please note that applications that propose projects focused on the following countries are not eligible: Andorra, Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Norway, Portugal, San Marino, Spain, Sweden, Switzerland, United Kingdom, or Vatican City.
For FY 2012, these priorities are competitive preference priorities. Under 34 CFR 75.105(c)(2) and 34 CFR 662.21(d)(2), we award an additional five points to an application for each competitive preference priority it meets (up to 10 additional points).
These priorities are:
Akan (Twi-Fante), Albanian, Amharic, Arabic (all dialects), Armenian, Azeri (Azerbaijani), Balochi, Bamanakan (Bamana, Bambara, Mandikan, Mandingo, Maninka, Dyula), Belarusian, Bengali (Bangla), Berber (all languages), Bosnian, Bulgarian, Burmese, Cebuano (Visayan), Chechen, Chinese (Cantonese), Chinese (Gan), Chinese (Mandarin), Chinese (Min), Chinese (Wu), Croatian, Dari, Dinka, Georgian, Gujarati, Hausa, Hebrew (Modern), Hindi, Igbo, Indonesian, Japanese, Javanese, Kannada, Kashmiri, Kazakh, Khmer (Cambodian), Kirghiz, Korean, Kurdish (Kurmanji), Kurdish (Sorani), Lao, Malay (Bahasa Melayu or Malaysian), Malayalam, Marathi, Mongolian, Nepali, Oromo, Panjabi, Pashto, Persian (Farsi), Polish, Portuguese (all varieties), Quechua, Romanian, Russian, Serbian, Sinhala (Sinhalese), Somali, Swahili, Tagalog, Tajik, Tamil, Telugu, Thai, Tibetan, Tigrigna, Turkish, Turkmen, Ukrainian, Urdu, Uyghur/Uigur, Uzbek, Vietnamese, Wolof, Xhosa, Yoruba, and Zulu.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
Based on language included in the Department of Education Appropriations Act for FY 2012, the Department may use funds to support the applications of individuals who are participating in advanced language training and international studies in areas vital to United States national security and who plan to apply their language skills and knowledge of these countries in the fields of government, international development, and the professions. Therefore, students planning to apply their language skills in these fields and those planning teaching careers are eligible to apply for this program.
The Department is not bound by any estimates in this notice.
1.
2.
1.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339. Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the program contact person listed in this section.
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative. However, student applicants may single space all text in charts, tables, figures, graphs, titles, headings, footnotes, endnotes, quotations, bibliography, and captions.
• Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch). Student applicants may use a 10 point font in charts, tables, figures, graphs, footnotes, and endnotes. However, these items are considered part of the narrative and counted within the 10-page limit.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limits only apply to the application narrative and bibliography. The page limits do not apply to the Application for Federal Assistance face sheet (SF 424), the supplemental information form required by the Department of Education, or the assurances and certification. However, student applicants must include their complete responses to the selection criteria in the application narrative.
We will reject a student applicant's application if the application exceeds the page limits.
3.
Applications for grants under this program must be submitted electronically using the G5 e-Application system accessible through the Department's G5 site. For information (including dates and times) about how to submit an IHE's application electronically, or in paper format by mail or hand delivery if an IHE qualifies for an exception to the electronic submission requirement, please refer to Section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
7.
Applications for grants under the Fulbright-Hays DDRA Fellowship Program, CFDA number 84.022A, must be submitted electronically using the G5 e-Application system, accessible through the Department's G5 site:
We will reject an application if an IHE submits it in paper format unless, as described elsewhere in this section, the IHE qualifies for one of the exceptions to the electronic submission requirement
While completing the electronic application, both the IHE and the student applicant will be entering data online, which will be saved into a database. Neither the IHE nor the student applicant may email an electronic copy of a grant application to us.
Please note the following:
• The process for submitting applications electronically under the Fulbright-Hays DDRA Fellowship Program has several parts. The following is a brief summary of the process; however, all applicants should review and follow the detailed description of the application process that is contained in the application package. In summary, the major steps are:
(1) IHEs must email the following information to
(2) Students must complete their individual applications and submit them to their IHE's project director using G5 e-Application;
(3) Persons providing references for individual students must complete and submit reference forms for the students and submit them to the IHE's project director using the G5 e-Application; and
(4) The IHE's project director must officially submit the IHE's application, which must include all eligible individual student applications, reference forms, and other required forms, using the G5 e-Application.
• The IHE must complete the electronic submission of the grant application by 4:30:00 p.m., Washington, DC time, on the application deadline date. The G5 e-Application will not accept an application for this competition after 4:30:00 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that both the IHE and the student applicant not wait until the application deadline date to begin the application process.
• The hours of operation of the G5 Web site are 6:00 a.m. Monday until 7:00 p.m. Wednesday; and 6:00 a.m. Thursday until 8:00 p.m. Sunday, Washington, DC time. Please note that, because of maintenance, the system is unavailable between 8:00 p.m. on Sundays and 6:00 a.m. on Mondays, and between 7:00 p.m. on Wednesdays and 6:00 a.m. on Thursdays, Washington, DC time. Any modifications to these hours are posted on the G5 Web site.
• Student applicants will not receive additional point value because the student submits his or her application in electronic format, nor will we penalize the IHE or student applicant if the applicant qualifies for an exception to the electronic submission requirement, as described elsewhere in this section, and submits an application in paper format.
• IHEs must submit all documents electronically, including all information typically provided on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Both IHEs and student applicants must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Student transcripts must be submitted electronically through the G5 e-Application system.
• Both the IHE's and the student applicant's electronic applications must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After the individual student applicant electronically submits his or her application to the student's IHE, the student will receive an automatic acknowledgment. In addition, the applicant IHE's project director will receive a copy of this acknowledgment by email. After a person submits a reference electronically, he or she will receive an online confirmation. After the applicant IHE submits its application, including all eligible individual student applications, to the Department, the applicant IHE will receive an automatic acknowledgment, which will include a PR/Award number (an identifying number unique to the IHE's application).
• Within three working days after submitting the IHE's electronic application, the IHE must fax a signed copy of the SF 424 to the Application Control Center after following these steps:
(1) Print SF 424 from G5 e-Application.
(2) The applicant IHE's Authorizing Representative must sign this form.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the SF 424.
(4) Fax the signed SF 424 to the Application Control Center at (202) 245–6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) The IHE is a registered user of the G5 e-Application and the IHE has initiated an electronic application for this competition; and
(2) (a) The G5 e-Application is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) The G5 e-Application is unavailable for any period of time between 3:30 p.m. and 4:30:00 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting the IHE an extension. To request this extension or to confirm our acknowledgment of any system unavailability, an IHE may contact either (1) the person listed elsewhere in this notice under
• The IHE or a student applicant does not have access to the Internet; or
• The IHE or a student applicant does not have the capacity to upload large documents to the G5 e-Application;
• No later than two weeks before the application deadline date (14 calendar days; or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), the IHE mails or faxes a written statement to the Department, explaining which of the two grounds for an exception prevents the IHE from using the Internet to submit its application. If an IHE mails a written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If an IHE faxes its written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax this statement to: Amy Wilson, U.S. Department of Education, 1990 K Street NW., Room 6082, Washington, DC 20006–8521. FAX: (202) 502–7860.
The IHE's paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If an IHE qualifies for an exception to the electronic submission requirement, the IHE may mail (through the U.S. Postal Service or a commercial carrier) its application to the Department. The IHE must mail the original and two copies of the application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number84.022A), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
The IHE must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If the IHE mails its application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If the IHE's application is postmarked after the application deadline date, we will not consider its application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, the IHE should check with its local post office.
If an IHE qualifies for an exception to the electronic submission requirement, the IHE (or a courier service) may deliver its paper application to the Department by hand. The IHE must deliver the original and two copies of the application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number84.022A), 550 12th Street SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If an IHE mails or hand delivers its application to the Department—
(1) The IHE must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which the IHE is submitting its application; and
(2) The Application Control Center will mail a notification of receipt of the IHE's grant application. If the IHE does not receive this grant notification within 15 business days from the application deadline date, the IHE should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
2.
(1) The statement of the major hypotheses to be tested or questions to be examined, and the description and justification of the research methods to be used (15 points);
(2) The relationship of the research to the literature on the topic and to major theoretical issues in the field, and the project's originality and importance in terms of the concerns of the discipline (10 points);
(3) The preliminary research already completed in the United States and overseas or plans for such research prior to going overseas, and the kinds, quality, and availability of data for the research in the host country or countries (10 points);
(4) The justification for overseas field research and preparations to establish appropriate and sufficient research contacts and affiliations abroad (10 points);
(5) The applicant's plans to share the results of the research in progress and a copy of the dissertation with scholars and officials of the host country or countries (5 points); and
(6) The guidance and supervision of the dissertation advisor or committee at all stages of the project, including guidance in developing the project, understanding research conditions abroad, and acquainting the applicant with research in the field (10 points).
(1) The overall strength of the applicant's graduate academic record (10 points);
(2) The extent to which the applicant's academic record demonstrates strength in area studies relevant to the proposed project (10 points);
(3) The applicant's proficiency in one or more of the languages (other than English and the applicant's native language) of the country or countries of research, and the specific measures to be taken to overcome any anticipated language barriers (15 points); and
(4) The applicant's ability to conduct research in a foreign cultural context, as evidenced by the applicant's references or previous overseas experience, or both (5 points).
3.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
4.
1.
If a student application is not evaluated or not selected for funding, we notify the IHE.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. Grantees are required to use the electronic data instrument
4.
The Department will use the following DDRA measures to evaluate its success in meeting this objective:
The information provided by grantees in their performance report submitted via IRIS will be the source of data for this measure. Reporting screens for institutions and fellows may be viewed at:
Amy Wilson, International and Foreign Language Education, U.S. Department of Education, 1990 K Street NW., Room 6082, Washington, DC 20006–8521. Telephone: (202) 502–7689 or by email:
If you use a TDD or a TTY, call the FRS, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
Undergraduate International Studies and Foreign Language (UISFL) Program.
Notice inviting applications for new awards for fiscal year (FY) 2012.
Dates:
These priorities are:
These priorities are:
We encourage applications MSIs, especially those that are eligible to receive assistance under Part A or B of Title III or under Title V of the HEA, and from community colleges.
We encourage applications that propose programs or activities focused on language instruction or the development of area or international studies programs to include language instruction in any of the 78 priority languages selected from the U.S. Department of Education's list of Less Commonly Taught Languages (LCTLs).
This list includes the following: Akan (Twi-Fante), Albanian, Amharic, Arabic (all dialects), Armenian, Azeri (Azerbaijani), Balochi, Bamanakan (Bamana, Bambara, Mandikan, Mandingo, Maninka, Dyula), Belarusian, Bengali (Bangla), Berber (all languages), Bosnian, Bulgarian, Burmese, Cebuano (Visayan), Chechen, Chinese (Cantonese), Chinese (Gan), Chinese (Mandarin), Chinese (Min), Chinese (Wu), Croatian, Dari, Dinka, Georgian, Gujarati, Hausa, Hebrew (Modern), Hindi, Igbo, Indonesian, Japanese, Javanese, Kannada, Kashmiri, Kazakh, Khmer (Cambodian), Kirghiz, Korean, Kurdish (Kurmanji), Kurdish (Sorani), Lao, Malay (Bahasa Melayu or Malaysian), Malayalam, Marathi, Mongolian, Nepali, Oromo, Panjabi, Pashto, Persian (Farsi), Polish, Portuguese (all varieties), Quechua, Romanian, Russian, Serbian, Sinhala (Sinhalese), Somali, Swahili, Tagalog, Tajik, Tamil, Telugu, Thai, Tibetan, Tigrigna, Turkish, Turkmen, Ukrainian, Urdu, Uyghur/Uigur, Uzbek, Vietnamese, Wolof, Xhosa, Yoruba, and Zulu.
The Secretary developed this list of languages in accordance with section 601(c) of the HEA, 20 U.S.C. 1121(c), in consultation with the head officials of a wide range of Federal agencies. As part of this consultation, the Secretary also received recommendations regarding national need for expertise in foreign languages and world regions. The Secretary has taken these recommendations into account in developing this this list of priority languages. A list of foreign languages and world regions identified as areas of national need may be found using at the following Web sites:
Also included on these Web sites are the specific recommendations the Secretary received from Federal agencies.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to IHEs only.
The Department is not bound by any estimates in this notice.
1.
2. a.
b.
1.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify the competition as follows: CFDA number 84.016A.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the person or team listed under
2.
Page Limit: The application narrative is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit the application narrative to no more than 40 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, except titles, headings, footnotes, quotations, references, and captions. Charts, tables, figures, and graphs in the application narrative may be single spaced and will count toward the page limit.
• Use a font that is either 12 point or larger; or, no smaller than 10 pitch (characters per inch). However, you may use a 10 point font in charts, tables, figures, and graphs.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
• The 40-page limit does not apply to Part I, the Application for Federal Assistance face sheet (SF 424); the supplemental information form required by the Department of Education; Part II, the budget section, including the narrative budget justification (ED Form 524); Part IV, assurances, certifications, and the response to Section 427 of the General Education Provisions Act (GEPA); the table of contents; the one-page project abstract; or the appendices. If you include any attachments or appendices not specifically requested, these items will be counted as part of the program narrative [Part III] for purposes of the page limit requirement.
We will reject your application if you exceed the page limit.
3.
Applications for grants under this program must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: August 28, 2012.
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two-to-five weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the UISFL program, CFDA number 84.016A, must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not email an electronic copy of a grant application to us.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the UISFL Program at www.Grants.gov. You must search for the downloadable application package for this competition by the CFDA number. Do not include the CFDA number's alpha suffix in your search (
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document Format) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time, or if the technical problems you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Michelle Guilfoil, Undergraduate International Studies and Foreign Language Program, U.S. Department of Education, 1990 K Street NW., room 6098, Washington, DC 20006–8521. FAX: (202) 502–7860.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.016A), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.016A), 550 12th Street SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
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All applications submitted by an IHE or a consortium/partnership of IHEs will also be evaluated based on the following criteria: (a) Commitment to international education (15 points); (b) Elements of the proposed international studies program (10 points); and (c) Need for and prospective results of the proposed program (15 points).
Additional information regarding these criteria is in the application package for this program. The total number of points available under these selection criteria, combined with the competitive preference priorities is as follows:
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In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs
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(A) Evidence that the applicant has conducted extensive planning prior to submitting the application;
(B) An assurance that the faculty and administrators of all relevant departments and programs served by the applicant are involved in ongoing collaboration with regard to achieving the stated objectives of the application;
(C) An assurance that students at the applicant institutions, as appropriate, will have equal access to, and derive benefits from, the UISFL program;
(D) An assurance that each institution, combination or partnership will use the Federal assistance provided under the UISFL program to supplement and not supplant non-Federal funds the institution expends for programs to improve undergraduate instruction in international studies and foreign languages;
(E) A description of how the applicant will provide information to students regarding federally funded scholarship programs in related areas;
(F) An explanation of how the activities funded by the grant will reflect diverse perspectives and a wide range of views and generate debate on world regions and international affairs, where applicable; and
(G) A description of how the applicant will encourage service in areas of national need, as identified by the Secretary.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. Grantees are required to use the electronic data instrument
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Percentage of critical languages addressed/covered by foreign language major, minor, or certificate programs created or enhanced; or by language courses created or enhanced; or by faculty or instructor positions created with UISFL or matching funds in the reporting period.
The information provided by grantees in their performance reports submitted via IRIS will be the source of data for this measure. Reporting screens for institutions can be viewed at:
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Michelle Guilfoil, Undergraduate International Studies and Foreign Language Program, U.S. Department of Education, 1990 K Street NW., Room 6098, Washington, DC 20006–8521. Telephone: (202) 502–7625 or by email:
If you use a TDD or a TTY, call the FRS, toll free, at 1–800–877–8339.
At this site, you can view this document, as well as all other documents of this Department published in the
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
The Assistant Secretary for Postsecondary Education proposes priorities and definitions for the American Overseas Research Centers (AORC) Program. The Assistant Secretary may use one or more of these priorities and definitions for competitions in fiscal year (FY) 2012 and later years. We intend these priorities and definitions to result in a wider spectrum of institutions being represented in the AORC consortia and to provide overseas professional development opportunities to U.S. postgraduate researchers, visiting scholars, and faculty from institutions that are traditionally underrepresented in this program.
We must receive your comments on or before June 14, 2012.
Address all comments about this notice to Cheryl E. Gibbs, U.S. Department of Education, 1990 K Street NW., Room 6083, Washington, DC 20006–8521.
If you prefer to send your comments by email, use the following address:
Cheryl E. Gibbs. Telephone: (202) 502–7634 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed priorities. Please let us know of ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.
During and after the comment period, you may inspect all public comments about this notice in room 6083, 1990 K Street NW., Washington, DC, between 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays.
20 U.S.C. 1128a.
This notice contains two proposed priorities.
The AORC Program is authorized under title VI, part A, section 609 of the Higher Education Act of 1965, as amended (HEA), which provides that the Department may only award an AORC grant to a consortium of IHEs.
In implementing this program, we have observed that consortia members listed in AORC applications tend primarily to be four year institutions of which few are minority serving institutions (MSIs). We hope to increase the number of MSIs that participate in this program using these priorities. We would also like to encourage more community colleges to participate in the consortia because community colleges are developing international education programs and offering foreign language courses to enhance career training or preparation for transfer to four-year programs.
In 2011, the American Council of Education (ACE) released the
We believe that these priorities and definitions support the recommendation in the ACE report because they will promote new institutional partnerships and resource leveraging that will ultimately improve the opportunities for a broader range of students to access area studies, language training, and study abroad, and will increase the number of college graduates who are prepared to work in a globally competent workforce.
For these reasons, we propose
While proposed priority 1 focuses on the members of the consortium that serve as the AORC, proposed priority 2 focuses on the researchers and faculty served by the AORC.
Under this program, an AORC provides opportunities for U.S. postgraduate researchers and faculty participants to (a) conduct advanced area studies research; (b) network with other U.S. and overseas scholars; (c) participate in conferences hosted by the AORC; and (d) engage in symposia, lectures, and outreach. Engaging in these activities enables participants to enhance their research and expand the international scope of their courses and teaching at their home institutions.
Proposed
To meet this priority, an applicant AORC must include community colleges or MSIs, or both as consortium members for the purpose of establishing or operating the AORC.
To meet this priority, the proposed AORC must extend research, teaching, or professional development opportunities to faculty from community colleges or MSIs, or both.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
The Assistant Secretary for Postsecondary Education seeks to achieve greater diversity in the IHEs and participants in the AORC program by including community colleges and MSIs. These two types of IHEs are not defined in the AORC program legislation. For this reason, we propose the following definitions to apply to AORC competitions:
(A) A junior or community college, as that term is defined in section 312(f) of the HEA (20 U.S.C. 1058(f));
(B) Or an institution of higher education (as defined in section 101 of the HEA (20 U.S.C. 1001)) that awards a significant number of degrees and certificates, that are not—
(i) Bachelor's degrees (or an equivalent); or
(ii) Master's, professional, or other advanced degrees.
We will announce the final priorities and definitions in a notice in the
This notice does
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are taking this proposed regulatory action only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these proposed priorities and definitions are consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 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 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 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 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Rippey Wind Energy 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 29, 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 Your Energy Holding, 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
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 Bethel Wind Energy 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 29, 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 Southern Energy Solution Group, 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 29, 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
This is a supplemental notice in the above-referenced proceeding of Vlast 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 29, 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 High Plains Ranch 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 future issuances of securities and assumptions of liability, is May 29, 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
The following notice of meeting is published pursuant to section 3(a) of the government in the Sunshine Act (Pub. L. 94–409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
May 17, 2012, 10:00 a.m.
Room 2C, 888 First Street NE., Washington, DC 20426.
Open.
Agenda.
Kimberly D. Bose, Secretary, Telephone (202) 502–8400.
For a recorded message listing items struck from or added to the meeting, call (202) 502–8627.
This is a list of matters to be considered by the Commission. It does not include a listing of all documents relevant to the items on the agenda. All public documents, however, may be viewed on line at the Commission's Web site at
A free Web cast of this event is available through
Immediately following the conclusion of the Commission Meeting, a press briefing will be held in the Commission Meeting Room. Members of the public may view this briefing in the designated overflow room. This statement is intended to notify the public that the press briefings that follow Commission meetings may now be viewed remotely at Commission headquarters, but will
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than May 29, 2012.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261–4528:
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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 June 8, 2012.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
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The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639–7570 or send an email to
The Ambulatory Care Pretest: National Hospital Care Survey—New—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C. 242k), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, shall collect statistics on the extent and nature of illness and disability of the population of the United States. This one-year clearance request seeks approval to pre-test: (1) Data collection from hospital ambulatory departments including emergency departments (ED), outpatient departments (OPD), and ambulatory surgery locations (ASLs) through the National Hospital Care Survey (NHCS) (OMB No. 0920–0212, expiration date 04/30/2014); (2) new questions on drug-related ED visits; and (3) new questions on colorectal cancer screening in ambulatory surgery visits.
In 2012, a pretest of 32 hospitals and 15 freestanding ambulatory surgery centers (FSASC) will collect data using methods approved for the National Hospital Ambulatory Medical Care Survey (NHAMCS) (OMB No. 0920–
The data items to be collected from the recruited hospitals and FSASCs in the pretest will include facility level data items such as visit volume, ownership, and information on electronic health record systems. Facility- and ambulatory unit-level data will be collected through in-person interviews and recorded on computerized survey instruments. It is anticipated that each hospital will have approximately four ambulatory units and each FSASC will have one ambulatory unit.
Patient level data items will include basic demographic information, name, address, social security number (if available), and medical record number (if available), and characteristics of the patients including visit dates, reason for visit, diagnoses, diagnostic services, procedures, medications, providers seen, and disposition. Patient visit data will be abstracted by field representatives of the data collection agent. A targeted number of patient visits will be sampled from each department depending on the type of department—approximately 200 across ambulatory units in the ED, 200 across ambulatory units in the OPD, and 100 across ambulatory units in ASLs.
Secondly, the pretest will collect specific information on drug-related visits to the ED. This endeavor, funded by the Center for Behavioral Health Statistics & Quality (CBHSQ) of the Substance Abuse & Mental Health Services Administration (SAMHSA), will assess the feasibility of integrating the Drug Abuse Warning Network (DAWN) (OMB No. 0930–0078, expired 12/31/2011) into the emergency department component of the NHCS. In each of the 32 pretest hospitals with an emergency department, a sample of all patient visits will be abstracted; for each drug-related visit within this sample, additional drug-related data will be abstracted. The only burden to the respondent at the patient visit level will be due to pulling and refiling approximately 104 medical records at each ambulatory unit.
Finally, the pretest will assess the feasibility of obtaining information on colorectal cancer screening during ambulatory surgery visits where a colonoscopy is performed. This endeavor is sponsored jointly by the National Center for Chronic Disease Prevention and Promotion (NCCDPHP) and the National Cancer Institute (NCI). The questions will be added to the Ambulatory Surgery Patient Record form and will be completed for patients who have a colonoscopy performed at the sampled visit. Potential users of the NHCS ambulatory data include, but are not limited to CDC, Congressional Research Service, Office of the Assistant Secretary for Planning and Evaluation (ASPE), American Health Care Association, Centers for Medicare and Medicaid Services (CMS), Bureau of the Census, state and local governments, and nonprofit organizations. There is no cost to respondents other than their time to participate. The total burden is 381 hours.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 or send comments to Kimberly S. Lane, at 1600 Clifton Road, MS D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (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. Written comments should be received within 60 days of this notice.
Improving the Health and Safety of the Diverse Workforce—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
Stress is one of the major causes of diminished health, safety, and productivity on the job (Jordan et al,
Racial and ethnic minority groups often shoulder a disproportionate burden of stress-related illnesses. For example, the age-adjusted prevalence of hypertension is 40.5% among Blacks compared to 27.4% among non-Hispanic Whites. Further, some cancers are 5 times greater among Asians, Type II diabetes is 2–5 times greater among Hispanics, and depression is 4–6 times greater among Native Americans (Carter-Pokras & Woo, 2002). Few studies thus far, however, have explored factors in the workplace that may contribute to these disparities.
Because of their general concentration in high-hazard and/or lower-status occupations, some racial and ethnic minority workers may be over-exposed to workplace factors (e.g., high workload and low job control) which have traditionally linked to a variety of stress-related health and safety problems. In addition, racial and ethnic minorities appear to be significantly more likely than non-minorities to encounter discrimination and other race-related stressors in the workplace (e.g., Krieger et al, 2006; Roberts et al, 2004).
Given a potentially greater stress burden, racial and ethnic minority workers may be at heightened risk for the development of health and safety problems associated with stress. On the other hand, occupational stress research experts suggest that certain workplace and other factors (e.g., co-worker and supervisory support, anti-discrimination policies and practices, etc.) may help reduce stress among employees, including racial and ethnic minorities.
Occupational hazards have been found to be distributed differentially with workers possessing specific biologic, social, and/or economic characteristics more likely to experience increased risks of work-related diseases and injuries. Consequently, CDC/NIOSH established the Occupational Health Disparities (OHD) program. Part of the National Occupational Research Agenda (NORA), the goals of the OHD program are to conduct research “to define the nature and magnitude of risks experienced by vulnerable populations, including racial and ethnic minorities, and to develop appropriate intervention and communication strategies to reduce these health and safety risks.”
CDC/NIOSH requests OMB approval to collect standardized information from working adults via a telephone interview. Respondents will be asked about: (1) Their exposure to workplace and job stressors, including those related to race and ethnicity (2) their health and safety status and (3) organizational (e.g., organizational characteristics, policies and practices that may or may not buffer them from the adverse effects of work-related stressors. Respondents will be a random sample of 2,300 Blacks/African Americans, White/European Americans, Hispanic/Latino Americans, American Indian/Alaska Natives, and Asian Americans. All telephone interview respondents will be between the ages of 18 and 65, English-speaking, either currently employed or unemployed for no more than 3 years, and living within the Chicago Metropolitan area. The estimated burden per response is 30 minutes.
CDC/NIOSH will use the information gather through the telephone interviews to evaluate (1) the degree of exposure of minority and non-minority workers to various workplace and job stressors (2) the impact of these stressors on health and safety outcomes and on (3) the organizational (e.g., organizational characteristics, policies and practices) and other factors that protect minority and other workers from stress and associated problems in health and safety. The data collection will ultimately help CDC/NIOSH focus intervention and prevention efforts that are designed to benefit the health and safety of the diverse American workforce. There are no costs to respondents other than their time.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 or send comments to Kimberly S. Lane, at 1600 Clifton Road, MS D74, Atlanta, GA 30333 or send an email to
The National Health and Nutrition Examination Survey (NHANES)—NEW—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C. 242k), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, shall collect statistics on the extent and nature of illness and disability; environmental, social and other health hazards; and determinants of health of the population of the United States.
The National Health and Nutrition Examination Survey (NHANES) has, to date, been authorized as a generic clearance under OMB Number 0920–0237. A change in accounting practice for the burden hours, however, requires a shift to a newly-assigned clearance number.
The National Health and Nutrition Examination Survey (NHANES) has been conducted periodically between 1970 and 1994, and continuously since 1999 by the National Center for Health Statistics, CDC.
Annually, approximately 15,411 respondents participate in some aspect of the full survey. About 10,000 complete the screener for the survey. About 142 complete the household interview only. About 5,269 complete both the household interview and the MEC examination. Up to 4,000 additional persons might participate in tests of procedures, special studies, or methodological studies. The average burden for these special study/pretest respondents is 3 hours. Participation in NHANES is completely voluntary and confidential. A three-year approval is requested.
NHANES programs produce descriptive statistics which measure the health and nutrition status of the general population. Through the use of questionnaires, physical examinations, and laboratory tests, NHANES studies the relationship between diet, nutrition and health in a representative sample of the United States. NHANES monitors the prevalence of chronic conditions and risk factors related to health such as arthritis, asthma, osteoporosis, infectious diseases, diabetes, high blood pressure, high cholesterol, obesity, smoking, drug and alcohol use, physical activity, environmental exposures, and diet. NHANES data are used to produce national reference data on height, weight, and nutrient levels in the blood. Results from more recent NHANES can be compared to findings reported from previous surveys to monitor changes in the health of the U.S. population over time. NHANES continues to collect genetic material on a national probability sample for future genetic research aimed at understanding disease susceptibility in the U.S. population. NCHS collects personal identification information. Participant level data items will include basic demographic information, name, address, social security number, Medicare number and participant health information to allow for linkages to other data sources such as the National Death Index and data from the Centers for Medicare and Medicaid Services (CMS). There is no cost to respondents other than their time.
NHANES data users include the U.S. Congress; numerous Federal agencies such as other branches of the Centers for Disease Control and Prevention, the National Institutes of Health, and the United States Department of Agriculture; private groups such as the American Heart Association; schools of public health; and private businesses.
30 U.S.C. 95l.
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of draft publication available for public comment.
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) announces the availability of the following notice of draft publication available for public comment entitled “Coal Dust Explosibility Meter Evaluation and Recommendations for Application.” The document and instructions for submitting comments can be found at
Written comments, identified by CDC–2012–0006 and docket number NIOSH–255, may be
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All information received in response to this notice will be available for public examination and copying at the NIOSH Docket Office, 4676 Columbia Parkway, Cincinnati, Ohio 45226. For access to the docket to read background documents or comments received, go to
This study was completed in 2010, and involved field use of the CDEM within MSHA's 10 bituminous coal districts. As part of their routine dust compliance surveys in these districts, MSHA inspectors collected sample coal and rock dust mixtures, field testing these samples for explosibility with the CDEM. Samples were then sent to the MSHA laboratory at Mt. Hope, WV, for parallel testing, first using a drying oven to determine the surface moisture followed by traditional low temperature ashing (LTA) method. The LTA method determines explosibility of a coal and rock dust sample in a laboratory by heating the mixture to burn off the combustible material. The results, when combined with the surface moisture, are reported as total incombustible content (TIC). If the TIC is ≥80%, the sample is deemed to be nonexplosible and compliant with 30 CFR 75.403.
The CDEM utilizes a different approach, using optical reflectance to determine the ratio of rock dust to coal dust in a mixture. The CDEM offers real-time measurements of the explosion propagation hazard within a coal mine entry, allowing for immediate identification and mitigation of the problem.
The conclusions of this study support the field use of the CDEM to measure the explosibility of coal and rock dust mixtures, to more effectively improve the onsite adequacy of rock dusting for explosion prevention.
Dr. Jeff Kohler, NIOSH, Associate Director for Mining, 626 Cochrans Mill Road, Pittsburgh, PA 15236, telephone (412) 386–5301, email
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
The purpose of this notice is to announce a Correlation Test Program offered by NIOSH through its National Personal Protective Technology Laboratory (NPPTL) and provide information on how interested parties can obtain the Standard Test Procedures. The Correlation Test Program is the result of HHS publishing a final rule (
The Correlation Testing Program will consist of two tests:
• Performance Tests of As-Received and Environmentally Treated Closed-Circuit Respirators; and
• Capacity Tests of As-Received and Environmentally Treated Closed-Circuit Escape Respirators.
The Standard Test Procedures for the Correlation Testing Program, and for the other CCER performance requirements, are available from NIOSH for review. These procedures are subject to modification as they are incorporated into the certification program.
All correlation testing conducted in this program will be done free of charge. This program was designed to enable potential CCER applicants to correlate or calibrate their own automated breathing and metabolic simulator to the automated breathing and metabolic simulator that will be used by NPPTL as part of the CCER approval process.
NPPTL will not make any performance-related judgments as to the ability of any tested units meeting the new approval requirements. Data obtained from testing will be provided only to the applicant. Testing results may be provided to the public; however, product or applicant identity will not be disclosed. Test results from the Correlation Test Program are not applicable as pre-test data for a respirator approval application.
The CCER Correlation Test Program shall be in effect until November 15, 2012.
For additional information concerning the application requirements and process, Jeff Peterson, telephone (412) 386–4018, email
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 July 16, 2012.
Submit electronic comments on the collection of information to
Domini Bean, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50–400T, Rockville, MD 20850, 301–796–5733,
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.
Since May 29, 1992, when FDA issued a policy statement on foods derived from new plant varieties, FDA has encouraged developers of new plant varieties, including those varieties that are developed through biotechnology, to consult with FDA early in the development process to discuss possible scientific and regulatory issues that might arise (57 FR 22984). The guidance entitled, “Recommendations for the Early Food Safety Evaluation of New Non-Pesticidal Proteins Produced by New Plant Varieties Intended for Food Use,” continues to foster early communication by encouraging developers to submit to FDA their evaluation of the food safety of their new protein. Such communication helps to ensure that any potential food safety issues regarding a new protein in a new plant variety are resolved early in development, prior to any possible inadvertent introduction into the food supply of material from that plant variety.
FDA believes that any food safety concern related to such material entering the food supply would be limited to the potential that a new protein in food from the plant variety could cause an allergic reaction in susceptible individuals or could be a toxin. The guidance describes the procedures for early food safety evaluation of new proteins in new plant varieties, including bioengineered food plants, and the procedures for communicating with FDA about the safety evaluation.
FDA has recently developed a form that interested persons may use to transmit their submission to the Office of Food Additive Safety in the Center for Food Safety and Applied Nutrition. New Form FDA 3666, a draft of which is available at
The NPC submitted to FDA includes the following information on Form FDA 3666 and in attachments to the form:
• Whether the NPC submission is a new submission, or an amendment or supplement to a previously established NPC;
• Whether the submitter has determined that all files provided in an electronic transmission are free of computer viruses;
• The date of the submitter's most recent meeting (if any) with FDA before transmitting a new NPC submission; and
• The date of any correspondence, sent to the submitter by FDA, relevant to an amendment or supplement the submitter is transmitting.
• The name of and contact information for the submitter, including the identity of the contact person and the company name (if applicable); and
• The name of and contact information for any agent or attorney who is authorized to act on behalf of the submitter.
• The title of the submission;
• The format of the submission (i.e., paper, electronic, or electronic with a paper signature page);
• The mode of transmission of any electronic submission (i.e., ESG or transmission on physical media such as CD–ROM or DVD);
• Whether the submitter is referring us to information already in our files;
• Whether the submitter has designated in its submission any information as trade secret or as confidential commercial or financial information; and
• Whether the submitter has attached a redacted copy of some or all of the submission.
• The name of the new protein;
• Any requested registry designations for the new protein; and
• The purpose or intended technical effect of the new protein.
• Information about the introduced genetic material (including identity and source).
The submitter indicates:
• Whether there is a history of safe use of the new protein in food or feed;
• Whether the submitter has included an assessment of the amino acid similarity between the new protein and known allergens and toxins;
• Whether the submitter has included information about the overall stability of the protein, and the resistance of the protein to enzymatic degradation using appropriate
• Whether the submitter has included any other information for FDA to consider in evaluating a NPC.
FDA estimates the burden of this collection of information as follows:
The estimated number of annual responses and average burden per response are based on FDA's experience with early food safety evaluations submitted in the past 3 years. Completing an early food safety evaluation for a new protein from a new plant variety is a one-time burden (one evaluation per new protein). Based on its experience over the past 3 years, FDA estimates that approximately 20 developers will choose to complete an early food safety evaluation for their new plant protein, for a total of 20 responses annually. Many developers of novel plants may choose not to submit an evaluation because the field testing of a plant containing a new protein is conducted in such a way (
The early food safety evaluation for new proteins includes six main data components. Four of these data components are easily and quickly obtainable, having to do with the identity and source of the protein. FDA estimates that completing these data components will take about 4 hours per NPC. FDA estimates the reporting burden for the first four data components to be 80 hours (4 hours × 20 responses).
Two data components ask for original data to be generated. One data component consists of a bioinformatics analysis which can be performed using publicly available databases. The other data component involves “wet” lab work to assess the new protein's stability and the resistance of the protein to enzymatic degradation using appropriate in vitro assays (protein digestibility study). The paperwork burden of these two data components consists of the time it takes the company to assemble the information on these two data components and include it in a NPC. FDA estimates that completing these data components will take about 16 hours per NPC. FDA estimates the reporting burden for the two other data components to be 320 hours (16 hours × 20 responses). Thus, FDA estimates the total annual hour burden for this collection of information to be 400 hours.
FDA expects that most if not all businesses filing NPCs in the next 3 years will choose to take advantage of the option of electronic submission via the ESG. Thus, the burden estimates in Table 1 are based on the expectation of one hundred percent (100%)
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 July 16, 2012.
Submit electronic comments on the collection of information to
Juanmanuel Vilela,Office of Information Management, Food and Drug Administration,1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–7651,
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.
On December 22, 2006, the President signed into law the Dietary Supplement and Nonprescription Drug Consumer Protection Act (Pub. L. 109–462, 120 Stat. 3469). This law amends the Federal Food, Drug, and Cosmetic Act (the FD&C Act) with respect to serious adverse event reporting for dietary supplements and nonprescription drugs marketed without an approved application.
Section 502(x) of the FD&C Act (21 U.S.C. 352(x)), which was added by Public Law 109–462, requires the label of a nonprescription drug product marketed without an approved application in the United States to include a domestic address or domestic telephone number through which a responsible person may receive a report of a serious adverse event associated with the product. The guidance document contains questions and answers relating to this labeling requirement and provides guidance to industry on the following topics: (1) The meaning of “domestic address” for purposes of the labeling requirements of section 502(x) of the FD&C Act; (2) FDA's recommendation for the use of an introductory statement before the domestic address or phone number that is required to appear on the product label under section 502(x) of the FD&C Act; and (3) FDA's intent regarding enforcing the labeling requirements of section 502(x) of the FD&C Act. Separate guidance, issued by the Center for Food Safety and Applied Nutrition on reporting for dietary supplements, is announced elsewhere in the
FDA estimates the burden of this collection of information as follows:
As indicated in Table 1 of this document, we estimate that approximately 200 manufacturers will revise approximately 100,000 labels to add a full domestic address and a domestic telephone number, and should they choose to adopt the draft guidance's recommendation, to add a statement identifying the purpose of the domestic address or telephone number. FDA believes that designing the label change should not take longer than 4 hours per label. Automated printing of the labels should only require a few seconds per label. This estimate accounts for the possibility that every manufacturer will make label revision, which is unlikely. Because the majority of over-the-counter drug product labels currently have a domestic telephone number that satisfies the requirement, we believe many manufacturers will opt not to adopt the guidance's recommendation to add a statement identifying the purpose of the address or telephone number, significantly reducing the number of total responses. However, assuming that all labels are revised, we estimate a one-time reporting burden for this information collection of 400,000 hours.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104–13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
The Health Education Assistance Loan (HEAL) program provided federally insured loans to assure the availability of funds for loans to eligible students to pay for their education costs. In order to administer and monitor the HEAL program the following forms are utilized: The Lenders Application for Contract of Federal Loan Insurance form (used by lenders to make application to the HEAL insurance program); the Borrower's Deferment Request form (used by borrowers to request deferments on HEAL loans and used by lenders to determine borrowers' eligibility for deferment); the Borrower Loan Status update electronic submission (submitted monthly by lenders to the Secretary on the status of each loan); and the Loan Purchase/Consolidation electronic submission (submitted by lenders to the Secretary to report sales, and purchases of HEAL loans).
The annual estimate of burden is as follows:
Email comments to
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104–13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act (the Act). Section 2951 of the Act amended Title V of the Social Security Act by adding a new section, 511, which authorized the creation of the Maternal, Infant, and Early Childhood Home Visiting Program, (
Under this program, $125,000,000 was awarded to States on a formula basis in 2010. An additional $125,000,000 was made available to States on a formula basis in 2011. Additionally, competitive funding was awarded in June 2011 for Development Grants and Expansion Grants. Development Grants were intended to support the efforts of States and jurisdictions with modest evidence-based home visiting programs to expand the depth and scope of these efforts, with the intent to develop the infrastructure and capacity needed to seek an Expansion Grant in the future. Expansion Grants were intended to support the efforts of States and jurisdictions that had already made significant progress towards a high-quality home visiting program or embedding their home visiting program into a comprehensive, high-quality early childhood system. Thirteen States were awarded Development Grants, and nine States were awarded Expansion Grants. These competitive grants are for 2 years (Development Grants) and 4 years (Expansion Grants), respectively. State grantees of both competitive programs will need to complete non-competing continuation (NCC) progress reports in order to secure the release of FY 2012 and out-year grant funds.
Additional funds are being made available for Development and Expansion Grants in FY 2012. Ten Expansion Grants, totaling $71.9 million, have been awarded. An additional four to eight Development Grants are anticipated to be awarded, with 2-year project periods. Development Grant recipients will be required to complete one NCC to secure the release of second-year funds. The project period is 4 years for the FY 2011 Expansion grants, and 3 years for the FY 2012 Expansion Grants. Fiscal year 2012 Expansion grant recipients will be required to complete three annual NCCs, and FY 2013 recipients will be required to complete two annual NCCs to secure the release of their out-year funds.
The annual estimate of burden is as follows:
Email comments to
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104–13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
Under the Health Resources and Services Administration (HRSA) Faculty Loan Repayment Program, degree-trained health professionals from disadvantaged backgrounds may enter into a contract under which the Department of Health and Human Services will make payments on eligible educational loans in exchange for a minimum of two years of service as a full-time or part-time faculty member of an accredited health professions college or university. Applicants must complete an application and provide all other required documentation, including information on all eligible educational loans.
The annual estimate of burden is as follows:
Email comments to
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) is requesting nominations to fill vacancies on the Advisory Committee on Organ Transplantation (ACOT). The ACOT was established by the Amended Final Rule of the Organ Procurement and Transplantation Network (OPTN) (42 CFR part 121) and, in accordance with Public Law 92–463, was chartered on September 1, 2000.
The agency must receive nominations on or before June 11, 2012.
All nominations should be submitted to the Executive Secretary, Advisory Committee on Organ Transplantation, Healthcare Systems Bureau, HRSA, Parklawn Building, Room 12C–06, 5600 Fishers Lane, Rockville, Maryland 20857. Federal Express, Airborne, UPS, etc., should be addressed to the Executive Secretary, Advisory Committee on Organ Transplantation, Healthcare Systems Bureau, HRSA, at the above address.
Patricia A. Stroup, M.B.A., M.P.A., Executive Secretary, Advisory Committee on Organ Transplantation, at (301) 443–1127 or email
As provided by 42 CFR 121.12, the Secretary established the Advisory Committee on Organ Transplantation. The Committee is governed by the Federal Advisory Committee Act (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory committees.
The ACOT advises the Secretary on all aspects of organ procurement, allocation, and transplantation, and on other such matters that the Secretary determines. One of its principal functions is to advise the Secretary on Federal efforts to maximize the number of deceased donor organs made available for transplantation and to support the safety of living organ donation.
The ACOT consists of up to 25 members, who are Special Government Employees, and 5 ex-officio, non-voting members. Members and the Chair shall be appointed by the Secretary from individuals knowledgeable in such fields as deceased and living organ donation, health care public policy, transplantation medicine and surgery, critical care medicine and other medical
Specifically, HRSA is requesting nominations for voting members of the ACOT representing: Health care public policy; transplantation medicine and surgery, including pediatric and heart/lung transplantation; critical care medicine; nursing; epidemiology and applied statistics; immunology; law and bioethics; behavioral sciences; economics and econometrics; organ procurement organizations; transplant candidates/recipients; transplant/donor family members; and living donors. Nominees will be invited to serve a 4-year term beginning after January 2013.
HHS will consider nominations of all qualified individuals with a view to ensuring that the Advisory Committee includes the areas of subject matter expertise noted above. Individuals may nominate themselves or other individuals, and professional associations and organizations may nominate one or more qualified persons for membership on the ACOT. Nominations shall state that the nominee is willing to serve as a member of the ACOT and appears to have no conflict of interest that would preclude the ACOT membership. Potential candidates will be asked to provide detailed information concerning financial interests, consultancies, research grants, and/or contracts that might be affected by recommendations of the Committee to permit evaluation of possible sources of conflicts of interest.
A nomination package should include the following information for each nominee: (1) A letter of nomination stating the name, affiliation, and contact information for the nominee, the basis for the nomination (i.e., what specific attributes, perspectives, and/or skills does the individual possess that would benefit the workings of ACOT), and the nominee's field(s) of expertise; (2) a biographical sketch of the nominee and a copy of his/her curriculum vitae; and (3) the name, address, daytime telephone number, and email address at which the nominator can be contacted.
The Department of Health and Human Services has special interest in assuring that advisory committees benefit from a broad and diverse range of perspectives. In support of that interest, we encourage nominations of all qualified candidates, and extend particular encouragement to nominations of women, racial and ethnic minorities, and those with disabilities.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852–3804; telephone: 301–496–7057; fax: 301–402–0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
• Therapeutics that control gene expression (e.g., anti-apoptotic genes).
• Combinations with other therapeutics to treat cancer, RNA viruses (e.g., HIV) and other RNA related diseases.
• Triggered release of siRNAs within cells.
• Research on targeting cells.
• Labeling of targeted cells.
• Research on cancer cells harboring cancer and other RNA related diseases in patients.
• Research on treatment of RNA related viruses.
• Size overcomes problems with traditional siRNA pharmacokinetics.
• Chemical stability improves half-life.
• Incorporation of multiple functionalities split and otherwise.
• Multi-stage delivery controls activation.
• Prototype.
• In vitro data available.
• X-ray diagnostic imaging.
• X-ray non-destructive materials testing.
• X-ray security screening.
• X-ray lithography of nanostructures.
• Also applies to neutron beam or proton beam imaging.
• Gratings of ultra-high aspect ratio and small period allow phase-contrast imaging at high x-ray energies which are suitable for human body CT, and provide better soft tissue contrast in radiography and CT.
• Reduces radiation exposure to patient.
• Large area gratings enable full field imaging without raster or line scanning.
• Pre-clinical.
• Early-stage.
This invention concerns the cloning and purification of human DNA polymerase gamma, the polymerase responsible for replicating the mitochondrial genome. The enzymes that have been purified include the wild-type version, a version which lacks exonuclease (proofreading) activity, and several versions with modified activity due to the mutation of the enzyme. These purified enzymes can be used to directly test the effects of new drugs that affect the activity of polymerases, such as nucleotide and nucleoside analogs.
• Research reagent to screen the effects of antiviral drugs (nucleotide and nucleoside analogs) on mitochondrial function.
• Research reagent to test the mitochondrial toxicity of other drugs that can affect polymerase activity.
• Purified polymerase allows for direct analysis of the effect of nucleotide analogs on DNA polymerase gamma.
• Different formats of the enzyme such as the exonuclease-deficient version, allows comprehensive testing of drug candidates.
• Allows more accurate prognoses by separating high-risk from low-risk cancer patient populations.
• Allows doctors to choose more individualized therapies for patients based on whether the cancer is at high or low risk for aggressiveness or recurrence.
Cytochrome P450s catalyze the NADPH-dependent oxidation of arachidonic acid to various eicosanoids found in several species. The eicosanoids are biosynthesized in numerous tissues including pancreas, intestine, kidney, heart and lung where they are involved in many different biological activities.
MAb 6–5–20–8 selectively inhibits CYP2J2-mediated arachidonic acid metabolism by more than 80% and also immunoblots the enzyme. MAb 6–2–16–1 also selectively inhibits arachidonic acid metabolism by more than 80% but does not immunoblot the enzyme. MAb 5–3–2–2 is not inhibitory but selectively immunoblots the enzyme. These antibodies can be used to identify and quantify inter-individual variation in physiological functions and to study pharmacological drug metabolism in various tissues.
• These antibodies can be used to identify and quantify inter-individual variation in physiological functions.
• These antibodies can be used to study pharmacological drug metabolism in various tissues.
1. Wu S,
2. Node K,
3. Node K,
4. Zeldin DC. Epoxygenase pathways of arachidonic acid metabolism. J Biol Chem. 2001 Sep 28;276(39):36059–62. [PMID 11451964]
5. Yang B,
6. King LM,
7. Sun J,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of 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 the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, June 14, 2012, 8:00 a.m. to June 14, 2012, 6:00 p.m., Westin Alexandria, 400 Courthouse Square, Alexandria, VA 22314 which was published in the
This notice is being amended to change the location to “The Residence Inn Old Town Alexandria, 1456 Duke Street, Alexandria, VA 22314.” The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications/contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications/contract proposals the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of meeting of the National Cancer Advisory Board and NCI Board of Scientific Advisors.
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.
A portion of the National Cancer Advisory Board 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.
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:
NCAB:
National Institutes of Health, Public Health Service, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR404.7(a)(1)(i), that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in PCT Patent Application No. PCT/US2009/054478, U.S. Patent Application No. 13/059,335 and foreign equivalents thereof entitled “Chemopreventive of Head and Neck Squamous Cell Carcinoma” (HHS Ref. No. E–302–2008/0) to Yissum Research Development Company of the Hebrew University of Jerusalem, Ltd., which is located in Jerusalem, Israel. The patent rights in these inventions have been assigned to the United States of America.
Other than license applications submitted as objections to this Notice of Intent to Grant an Exclusive License, no further license applications will be considered for the exclusive field of use set forth below if the Yissum Research Development Company of the Hebrew University of Jerusalem, Ltd. is granted an exclusive license pursuant to this Notice of Intent to Grant an Exclusive License. The prospective exclusive license territory may be worldwide and the field of use may be limited to use of the Licensed Patent Rights for the prevention and treatment of head and neck cancers.
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before June 14, 2012 will be considered, in addition to the current non-exclusive applications under consideration, for the prospective license territory and field of use to be granted under the contemplated exclusive patent license.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: Whitney A. Hastings, Ph.D., Licensing and Patenting Manager, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852–3804; Telephone: (301) 451–7337; Facsimile: (301) 402–0220; Email:
In head and neck squamous cell carcinoma (HNSCC), a cancer occurring mostly in the mouth, it is frequently observed that the Akt/mTOR pathway is abnormally activated. Therefore, inhibiting this signaling pathway may help in treating this disease. Rapamycin and its analogs are known to inhibit the activity of mTOR so in principle they could serve as therapeutics for treating HNSCC.
This technology describes a method of potentially preventing or treating HNSCC through the inhibition of mTOR activity. The proof of this principle was demonstrated by rapid regression of mouth tumors in mice afflicted with Cowden syndrome with the administration of rapamycin. Like HNSCC, development of this disease is linked to over activation of the Akt/mTOR pathway. Furthermore, the therapeutic potential of rapamycin was demonstrated using mice in experiments that model chronic exposure to tobacco, which promotes the development of HNSCC. Therefore, inhibitors of mTOR have considerable potential in the prevention and treatment of HNSCC.
The prospective exclusive license and any further license applications received as objections to this Notice of Intent to Grant an Exclusive License, will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless within thirty (30) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Any additional applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Substance Abuse and Mental Health Services Administration, HHS.
Notice of intent to award a single source grant to the University of California Los Angeles (UCLA).
This notice is to inform the public that the Substance Abuse and Mental Health Services Administration (SAMHSA) intends to award approximately $130,000 (total costs) for up to one year to the University of California Los Angeles (UCLA). This is not a formal request for applications. Assistance will be provided only to the University of California Los Angeles (UCLA) based on the receipt of a satisfactory application that is approved by an independent review group.
Foreign Operations and Related Programs Appropriations Act, 2010 (Division F, Pub. L. III–J 17). Funding for this program is made available through the State Department.
The purpose of the supplemental funding is to provide logistical and fiscal management support, and training for project-related activities in Iraq, including SBIRT and other trainings planned to take place in Iraq.
At a minimum the funds awarded will be used to conduct the following activities:
• Develop a plan to provide logistical and fiscal management support for project-related activities in Iraq, including SBIRT and other trainings planned to take place in Iraq.
• Develop a plan for the United Nations Office on Drugs and Crime rapid assessment of the current substance use trends in Iraq and assist in the establishment of the Community Epidemiology Workgroup.
• Provide an implementation plan in the context of the overall project and an updated timeline, which shows how funds will be used to enhance logistics and financial management of the project.
• Provide a plan on how individuals served as a result of the supplemental activities will be incorporated into the ongoing Government Performance and Results Modernization Act of 2010 (GPRA) activities.
Substance Abuse and Mental Health Services Administration, HHS.
Notice of intent to award a single source grant to the Natividad Medical Center in Salinas, CA.
This notice is to inform the public that the Substance Abuse and Mental Health Services Administration (SAMHSA) intends to award approximately $375,000 (total costs) for up to one year to the Natividad Medical Center in Salinas, CA. This is not a formal request for applications. Assistance will be provided only to the Natividad Medical Center based on the receipt of a satisfactory application that is approved by an independent review group.
• Natividad Medical Center to date has successfully implemented the SBIRT Medical Residency Program since 2008, and a fifth year of funding would give the program an additional year to train more residents in SBIRT as well as allow the program to solidify sustaining its training program after the end of SAMHSA funding.
• Natividad Medical Center is the only SBIRT Medical Residency Program grantee in Central California, and serves minority, high-risk and vulnerable populations, including farm workers, low-income individuals, adolescents, elderly, homeless, veterans, and individuals with substance abuse and co-occurring disorders.
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) is submitting a request for review and approval of a collection of information under the emergency processing procedures in Office of Management and Budget (OMB) regulation 5 CFR 1320.13. FEMA is requesting that this information collection be approved by June 1, 2012. The approval will authorize FEMA to use the collection through December 1, 2012. FEMA plans to follow this emergency request with a request for a 3-year approval. The request will be processed under OMB's normal clearance procedures in accordance with the provisions of OMB regulation 5 CFR 1320.10. To help us with the timely processing of the emergency and normal clearance submissions to OMB, FEMA invites the general public to comment on the proposed collection of information.
Comments must be submitted to OMB on or before June 14, 2012. You may submit comments to FEMA on or before July 16, 2012.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland
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All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, Office of the Chief Administrative Officer, Mission Support Bureau, Federal Emergency Management Agency, 1800 South Bell Street Arlington, VA 20598–3005, facsimile number (202) 646–3347, or at email address
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5207 (the Act), requires that all requests for a declaration by the President that a major disaster or emergency exists shall be made by the Governor of the affected State. Section 401 of the Act stipulates that such a request shall be based on a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local government, and that Federal assistance is necessary. Section 401 of the Act further stipulates that as a part of such request, and as a prerequisite to major disaster assistance under the Act, the Governor shall take appropriate response action under State law and direct the execution of the State's emergency plan and shall furnish specific information that must be included in a request for a major disaster declaration. Section 401 of the Act stipulates that the request must include specific information on the nature and amount of State and local resources which have been or will be committed to alleviate the results of the disaster. In the event that a Governor's request for supplemental Federal assistance is denied, the Governor may appeal this denial under the provisions set forth in 44 CFR 206.46.
Office of the Assistant Secretary for Policy, Management and Budget, Interior.
Notice.
The Office of the Assistant Secretary for Policy, Management and Budget is hosting upcoming tribal consultation sessions. The purpose of the sessions is to obtain tribal input on the 2012 Information Technology
See the
See the
Andrew Jackson, Deputy Assistant Secretary for Technology, Information and Business Services, (202) 208–7966.
The Assistant Secretary for Policy, Management and Budget will be hosting the following tribal consultation sessions and invites tribal leaders to participate:
The agenda topics for each session will be:
A brief description of each of the topics is provided below. Additional information is posted at:
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) Alaska State Office, under the authority of 43 CFR 3131.2, is issuing a call for nominations and comments on tracts for oil and gas leasing for the 2012 National Petroleum Reserve in Alaska (NPR–A) oil and gas lease sale. Available tracts are within the Northeast and Northwest Planning Areas of the NPR–A. A map of the NPR–A showing available areas is online at
BLM–Alaska must receive all nominations and comments on these tracts for consideration on or before June 29, 2012.
Mail nominations and/or comments to: State Director, Bureau of Land Management; Alaska State Office; 222 West 7th Ave. Mailstop 13; Anchorage, AK 99513–7504. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment-including your personal identifying information-may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Ted Murphy, Deputy State Director, BLM-Alaska Division of Resources, 907–271–4413. 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.
Describe and depict all tract nominations on the NPR–A map by outlining your area(s) of interest. NPR–A maps, legal descriptions of the tracts, and additional
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Draft Environmental Impact Statement (EIS) and Draft California Desert Conservation Area (CDCA) Plan Amendment for the San Diego Gas & Electric (SDG&E) Ocotillo Sol Solar Project in Imperial County, California, and by this notice is announcing the opening of the comment period.
To ensure that comments will be considered, the BLM must receive written comments on the Draft EIS and Draft CDCA Plan Amendment within 90 days following the date the Environmental Protection Agency publishes its Notice of Availability in the
You may submit comments related to the SDG&E Ocotillo Sol Solar Project by any of the following methods:
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Copies of the SDG&E Ocotillo Sol Solar Project Draft EIS and Draft CDCA Plan Amendment are available in the California Desert District Office at the above address and at the El Centro Field Office, 1661 S. 4th Street, El Centro, California 92243.
Noel Ludwig, Project Manager, telephone 951–697–5368; address 22835 Calle San Juan de Los Lagos, Moreno Valley, California 92553; or email
The BLM has received a right-of-way (ROW) application from SDG&E to construct, operate, maintain, and decommission the Ocotillo Sol project, a solar photovoltaic (PV) power plant facility, on approximately 115 acres of BLM-administered public lands in Imperial County, California. The site for the solar facility would be adjacent to the existing Imperial Valley Substation (IVS), 4 miles south of Interstate 8, approximately 5 miles north of the United States-Mexico border, 5 miles south of Seeley, 9 miles southwest of El Centro, and 82 miles east of San Diego. The proposed project site is located within the BLM's CDCA, the BLM's Yuha Basin Area of Critical Environmental Concern, and the Yuha Desert Management Area for flat-tailed horned lizard. A portion of the Juan Bautista de Anza National Historic Trail lies approximately 5 miles southwest of the project site at its closest point, and runs approximately north-south. The Jacumba Mountains Wilderness lies 11.7 miles to the west of the project site.
All proposed project components, including a temporary 15-acre construction lay-down area, would be located on BLM-administered lands subject to a ROW grant. The proposed Ocotillo Sol project components would include the PV modules and mounting structures, a maintenance building with an associated parking area, internal roads, inverters, transformers, and the combining switchgear. An existing road to the IVS would provide access to the proposed project site. New minor internal roads would be constructed between the module rows. The interconnection to the IVS would be via underground trench. Once approved and operational, the proposed Ocotillo Sol project is expected to have a 15 to 20 megawatt generating capacity, depending on the specific technology chosen.
In connection with its decision on the proposed Ocotillo Sol project, the BLM will also include consideration of potential amendments to the CDCA land use plan, as analyzed in the Draft EIS alternatives. The CDCA plan, while recognizing the potential compatibility of solar energy facilities on public lands, requires that all sites associated with power generation or transmission not identified in the Plan be considered through the land use plan amendment process. The BLM is deciding whether to amend the CDCA Plan to identify the Ocotillo Sol project site as available or unavailable for solar development. The Draft EIS describes the following five alternatives: (1) No Action/No CDCA Plan Amendment; (2) the Applicant's Proposed Project to construct, operate, maintain, and decommission a 100-acre solar PV facility on BLM-managed lands under an authorized ROW, plus use of a 15-acre temporary ROW for construction laydown; (3) a Reduced Footprint Alternative which would retain the 100-acre facility but reduce the laydown area from 15 acres to 2 acres; (4) No Action/Amend the CDCA Plan to identify the area as suitable for solar development; and (5) No Action/Amend the CDCA Plan to identify the area as unsuitable for solar development. All of the alternatives except the No Action/No CDCA Plan Amendment would include an amendment to the CDCA Plan. The BLM has identified the Reduced Footprint Alternative as the Preferred Alternative. The issues evaluated in the Draft EIS include the physical, biological, cultural, socioeconomic, and other resources that have the potential to be affected by the proposed project and alternatives. The issues are air quality, greenhouse gases and climate change, geology and soil resources, water resources, biological resources, cultural resources, paleontological resources, fire and fuels, lands and realty, special designations, recreation, visual resources, transportation and public access, noise and vibration, public health and safety, hazardous materials, socioeconomics, and environmental justice.
The BLM hosted two public scoping meetings in El Centro, California, on August 10, 2011. Both the afternoon and evening meetings were held at the Imperial County Executive Office. A news media release to introduce the project to the public and provide information about scoping meetings was issued on July 15, 2011 to local and regional newspapers, television and
Please note that public comments and information submitted—including names, street addresses, and email addresses of persons who submit comments—will be available for public review and disclosure at the above address during regular business hours (8 a.m. to 4 p.m.), Monday through Friday, except holidays.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 1506.10, and 43 CFR 1610.2
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act (FLPMA), the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Twin Falls District Resource Advisory Council (RAC) and subcommittee for the proposed Monument and Cassia Land Use Plan amendments will meet as indicated below.
On June 5, 2012, the Twin Falls District RAC subcommittee members for the proposed Monument and Cassia Land Use Plan amendments will meet at the Twin Falls District BLM office, 2536 Kimberly Road, Twin Falls, Idaho. The meeting will begin at 6:00 p.m. and end no later than 9:00 p.m. The public comment period for the RAC subcommittee meeting will take place 6:10 p.m. to 6:40 p.m. On June 26, the Twin Falls District Resource Advisory Council will tour Craters of the Moon National Monument area, following a public comment period to take place at the BLM Shoshone Field Office, Fire Ready Room, 400 West F Street, Shoshone, Idaho, 83352. The public comment for the RAC meeting on June 26 will take place 9:00 a.m. to 9:30 a.m.
Heather Tiel-Nelson, Twin Falls District, Idaho, 2536 Kimberly Road, Twin Falls, Idaho, 83301, (208) 736–2352.
The 15-member RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in Idaho. During the June 5th meeting, RAC subcommittee members will discuss rock climbing, camping, staging, trail-building and other recreational issues at Cedar Fields and Castle Rocks. The June 26th meeting will focus on sage-grouse issues and RAC members will tour the Craters of the Moon National Monument area to view the process being used by staff to inventory sage-grouse habitat throughout the Monument.
Additional topics may be added and will be included in local media announcements. More information is available at
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Sierra Front-Northwestern Great Basin Resource Advisory Council (RAC), will hold two meetings in Nevada in fiscal year 2012. The meetings are open to the public.
Lisa Ross, Public Affairs Specialist, Carson City District Office, 5665 Morgan Mill Road, Carson City, NV 89701, telephone: (775) 885–6107, email:
The 15-member Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in Nevada. Topics for discussion at each meeting will include, but are not limited to:
• June 14–15 (Carson City)—rangeland health assessments, Carson City Resource Management Plan, greater sage-grouse conservation, recreation, and fire prevention (field trip on June 15).
• September 27–28 (Winnemucca)—landscape vegetative management and ongoing monitoring, Ruby Pipeline (field trip on September 28).
Managers' reports of field office activities will be given at each meeting. The Council may raise other topics at the meetings.
Final agendas will be posted on-line at the BLM Sierra Front-Northwestern Great Basin Resource Advisory Council Web site at
Individuals who need special assistance such as sign language interpretation or other reasonable accommodations, or who wish to receive a copy of each agenda, may contact Lisa Ross no later than 10 days prior to each meeting.
Bureau of Ocean Energy Management, Interior.
Notice of Determination of No Competitive Interest for Proposed Right-of-Way Grant Area
This notice provides the Bureau of Ocean Energy Management (BOEM) determination of no competitive interest (DNCI) for the area requested by Atlantic Grid Holdings LLC's (AGH) application for a right-of-way (ROW) grant to build an offshore electrical transmission system on the Outer Continental Shelf off the coasts of New York, New Jersey, Delaware, Maryland, and Virginia as described in the December 21, 2011, Notice of Proposed Grant Area and Request for Competitive Interest (RFCI) in the Area of the Atlantic Wind Connection Proposal (76 FR 79206).
Effective May 15, 2012.
For information on the DNCI, contact Mr. Casey Reeves, BOEM, Office of Renewable Energy Programs, 381 Elden Street HM 1328, Herndon, Virginia 20170–4817; phone (703) 787–1320.
This DNCI is published pursuant to subsection 8(p)(3) of the Outer Continental Shelf (OCS) Lands Act, which was added by section 388 of the Energy Policy Act of 2005 (EPAct) (43 U.S.C. 1337(p)(3)), and the implementing regulations at 30 CFR part 585. Subsection 8(p)(3) of the OCS Lands Act requires that OCS renewable energy leases, easements, and rights-of-way be issued “on a competitive basis unless the Secretary determines after public notice of a proposed lease, easement, or right-of-way that there is no competitive interest.” The authority to make such determinations has been delegated to BOEM.
This DNCI provides notice to the public that BOEM has determined there is no competitive interest in the proposed ROW grant area, as no indications of competitive interest were submitted in response to the RFCI.
In the RFCI, BOEM also solicited public comment on site conditions and multiple uses within the ROW grant area that would be relevant to the proposed project or its impacts. BOEM received public comment submissions from 56 parties in response. The comments received in response to the RFCI will be used to inform BOEM in subsequent agency decisions. After the publication of this DNCI, BOEM will proceed with the noncompetitive ROW grant process outlined at 30 CFR 585.306(b).
A map of the area proposed for a ROW grant area can be found at the following URL:
United States International Trade Commission.
Notice of opportunity to submit comments in connection with the 15th report on the Andean Trade Preference Act (ATPA).
Section 206 of the ATPA (19 U.S.C. 3204) requires the Commission to report biennially to the Congress by September 30 of each reporting year on the economic impact of the Act on U.S. industries and U.S. consumers, as well as on the effectiveness of the Act in promoting drug related crop eradication and crop substitution efforts by beneficiary countries. The Commission prepares these reports under investigation No. 332–352,
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street SW., Washington, DC. All written submissions should be addressed to the Secretary, United States International Trade Commission, 500 E Street SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Walker Pollard (202–205–3228, or
(1) The actual effect of ATPA on the U.S. economy generally as well as on specific domestic industries which produce articles that are like, or directly competitive with, articles being imported under the Act from beneficiary countries;
(2) The probable future effect that ATPA will have on the U.S. economy generally and on such domestic industries; and
(3) The estimated effect that ATPA has had on drug-related crop eradication and crop substitution efforts of beneficiary countries.
Notice of institution of this investigation for preparing these reports was published in the
Any submissions that contain confidential business information must also conform with the requirements of section 201.6 of the
Congressional committee staff has indicated that the receiving committees intend to make the Commission's report available to the public in its entirety, and has asked that the Commission not include any confidential business information or national security classified information in the report that the Commission sends to the Congress. Any confidential business information received by the Commission in this investigation and used in preparing this report will not be published in a manner that would reveal the operations of the firm supplying the information.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the presiding administrative law judge has issued a Final Initial Determination and Recommended Determination on Remedy and Bonding in the above-captioned investigation. The Commission is soliciting comments on public interest issues raised by the recommended relief, specifically a limited exclusion order with respect to respondent Apple, Inc.'s (“Apple”) accused products and a cease and desist order directed toward Apple.
Lisa R. Barton, Acting Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
Section 337 of the Tariff Act of 1930 provides that if the Commission finds a violation it shall exclude the articles concerned from the United States:
The Commission is interested in further development of the record on the public interest in these investigations. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the administrative law judge's Recommended Determination on Remedy and Bonding issued in this investigation on May 9, 2012. Comments should address whether issuance of a limited exclusion order and a cease and desist order in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the recommended orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the recommended orders;
(iii) Identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) Indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the recommended exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) Explain how the limited exclusion order and cease and desist order would impact consumers in the United States.
Written submissions must be filed no later than by close of business on June 6, 2012.
Persons filing written submissions must file the original document electronically on or before the deadline stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337–TA–745”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the presiding administrative law judge has issued a Final Initial Determination and Recommended Determination on Remedy and Bonding in the above-captioned investigation. The Commission is soliciting comments on public interest issues raised by the recommended relief, specifically a limited exclusion order directed to the products of Microsoft Corporation of Redmond, Washington (“Microsoft”) that have been found to infringe the asserted patents and a cease and desist order directed to Microsoft.
Lisa R. Barton, Acting Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
Section 337 of the Tariff Act of 1930 provides that if the Commission finds a violation it shall exclude the articles concerned from the United States:
The Commission is interested in further development of the record on the public interest in these investigations. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the administrative law judge's Recommended Determination on Remedy and Bonding issued in this investigation on May 7, 2012. Comments should address whether issuance of a limited exclusion order and a cease and desist order in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the recommended orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the recommended orders;
(iii) Identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) Indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the recommended exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) Explain how the limited exclusion order and a cease and desist order would impact consumers in the United States.
Written submissions must be filed no later than by close of business on Friday, June 8, 2012.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337–TA–752”) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 337), and of sections 201.10 and 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50).
By order of the Commission.
On the basis of the record
The Commission instituted these investigations effective March 30, 2011, following receipt of a petition filed with the Commission and Commerce by Whirlpool Corp., Benton Harbor, MI. The final phase of the investigations was scheduled by the Commission following notification of preliminary determinations by Commerce that imports of bottom mount combination refrigerator-freezers from Korea were subsidized within the meaning of section 703(b) of the Act (19 U.S.C. 1671b(b)) and that imports of bottom mount combination refrigerator-freezers from Korea and Mexico were sold at LTFV within the meaning of 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on May 9, 2012. The views of the Commission are contained in USITC Publication 4318 (May 2012), entitled
By order of the Commission.
Employment and Training Administration (ETA), Labor.
Notice.
The Department of Labor (Department), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the public and other Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that required data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
The Department notes that a Federal agency cannot conduct or sponsor a collection of information unless it is approved by the Office of Management and Budget (OMB) under the PRA, and displays a currently valid OMB control number, and the public is not required to respond to a collection of information unless it displays a currently valid OMB control number. Also, notwithstanding any other provisions of law, no person shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number (see 5 CFR 1320.5(a) and 1320.6). This information collection request (ICR) consists of three follow-up surveys for youth who were randomly assigned to either a treatment group or control group. The surveys will be fielded 12-, 30- and 48-months after random assignment into the study groups. This package requests clearance for these follow-up surveys and related respondent materials.
Written comments must be submitted to the office listed in the addresses section below on or before July 16, 2012.
Send comments to Eileen Pederson, U.S. Department of Labor, Employment and Training Administration, Office of Policy Development and Research, 200 Constitution Avenue NW., Frances Perkins Bldg., Room N–5641, Washington, DC 20210. Telephone number: (202) 693–3647 (this is not a toll-free number). Email address:
The Impact Evaluation of the YouthBuild program is a 7-year experimental design impact evaluation funded by the ETA. This information collection covers the follow-up surveys administered to study participants at 12-, 30- and 48-months after random assignment. YouthBuild is a youth and community development program that addresses several core issues facing low-income communities: Available housing, youth education, employment and criminal behavior. The program primarily serves high school dropouts and focuses on helping them attain a high school diploma or general
The evaluation of the YouthBuild program will address the following research questions:
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The evaluation study started in June 2010 and is scheduled to continue until July 2017. MDRC, the prime contractor, is working with Mathematica Policy Research and Social Policy Research Associates to design and implement the evaluation. The study includes a baseline information collection, a Web-based questionnaire and a Web-based survey of YouthBuild grantees, site-specific qualitative and cost data, and three mixed-mode (Web and computer-assisted telephone interviewing) surveys of youth that will take place 12-, 30- and 48 months after random assignment.
The target population for the study is out-of-school youth aged 16–24, who are from low-income families, in foster care, offenders, migrants, disabled, or are children of incarcerated parents. Of the universe of YouthBuild programs, the study team will recruit 83 sites (60 Department-funded sites and 23 sites that did not receive Fiscal Year 2011 funding from the Department but did receive funding from the Corporation for National and Community Service [CNCS], referred to hereafter as CNCS-funded programs) and will seek to enroll 3,465 eligible participants into the study. Study participants will be randomly assigned to either the treatment group, which will be eligible for YouthBuild services, or to the control group which will not be eligible. Study participants will be followed for 4 years after random assignment.
Data for the study will be collected from YouthBuild grantees and from study participants through the following methods:
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At this time, clearance is requested for the youth follow-up surveys.
Currently, the Department is soliciting comments concerning the youth follow-up survey data collection for the Impact Evaluation of the YouthBuild Program. Comments are requested to:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the information collection on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
At this time, the Department is requesting clearance for the youth follow-up surveys.
a. Youth Follow-up Surveys:
Note that, due to rounding, the total amounts may differ from the sum of the components.
Comments submitted in response to this request will be summarized and/or
Employment and Training Administration (ETA), Labor.
Notice.
The Department of Labor (Department), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 3506(c)(2)(A)]. This program helps ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Currently, ETA is soliciting comments concerning the extension of the expiration date (November 30, 2012) for ETA Forms 790 and 795 to November 30, 2015, and revisions made to ETA Form 790, with respect to the collection of information on the recruitment of agricultural workers. In situations where an adequate supply of workers does not exist locally, agricultural employers must use the Agricultural and Food Processing Clearance Order, ETA Form 790, to list the job opening with the State Workforce Agency (SWA) for recruiting temporary agricultural workers. The Agricultural and Food Processing Clearance Memorandum, ETA Form 795, is used by SWAs to extend job orders beyond their jurisdictions, give notice of action on a clearance order, request additional information, amend the order, report results, and accept or reject the extended job order. No changes were made to the ETA Form 795.
Written comments must be submitted to the office listed in the
Submit written comments to: Amy Young, Office of Workforce Investment, Room C–4510, Employment and Training Administration, Office of Workforce Investment, 200 Constitution Avenue NW., Room C–4510, Washington, DC 20210. Telephone number: 202–693–2758 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1–877–889–5627 (TTY/TDD). Fax: 202–693–3015. Email:
Currently, ETA is soliciting comments regarding the extension of the expiration date for the Agricultural and Food Processing Clearance Order Form (ETA Form 790) with changes and for the Agricultural and Food Processing Clearance Memorandum (ETA Form 795) without changes.
The Agricultural and Food Processing Clearance Order, ETA Form 790, is used by agricultural employers to list the job opening with the State Workforce Agencies (SWAs) for recruiting temporary agricultural workers in situations where an adequate supply of workers does not exist locally. The Agricultural and Food Processing Clearance Memorandum, ETA Form 795, is used by SWAs to extend job orders beyond their jurisdictions, give notice of action on a clearance order, request additional information, amend the order, report results, and accept or reject the extended job order.
The Department is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The calculations are based on a normal biweekly work week, as most jobs are 8 hours a day for 10 days bi-weekly. There are 26 bi-weeks in a year. Therefore, 8 hours × 10 days × 26 bi-weeks = 2,080 hours worked in a year. Also the calculations are based on the average median salary of a state worker of $69,992 per year, and the estimated hours expended in completing and processing ETA Form 790 and ETA Form 795 respectively, providing the grand total of burden cost reflected above.
The burden is estimated to be 60 minutes for Form 790 and 15 minutes for Form 795:
ETA 790—8,356 multiplied by 60 minutes = 501,360 divided by 60 = 8,356;
ETA 795—1,000 multiplied by 15 minutes = 15,000 divided by 60 = 250;
The average median salary of a state works is $69,992 divided by 2,080 hours = $33.65 P/Hr.;
The annual hours of 8,606 multiplied by the hourly rate of $33.65 = $289,592 total annual burden cost.
The estimate above is based on the Bureau of Labor Statistics data provided in the Occupational Employment Statistics (OES) at
Comments submitted in response to this comment request will be summarized and/or included in the request for OMB approval of the ICR; they will also become a matter of public record.
8:30 a.m. to 12:30 p.m., Tuesday, May 22, 2012.
JW Marriott Starr Pass, 3800 W. Starr Pass Boulevard, Tucson, Arizona 85745.
This meeting will be open to the public, unless it is necessary for the Board to consider items in executive session.
(1) Program reports; (2) management committee report; (3) Parks in Focus Program report; (4) financial scenarios report; (5) Board governance and (6) personnel matters.
All agenda items except as noted below.
Executive session to review personnel matters.
Ellen K. Wheeler, Executive Director, 130 South Scott Avenue, Tucson, AZ 85701, (520) 901–8500.
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from April 19, 2012 to May 2, 2012. The last biweekly notice was published on May 1, 2012 (77 FR 25753).
You may access information and comment submissions related to this document, which the NRC possesses and is publicly available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Please refer to Docket ID NRC–2012–0107 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by the following methods:
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Please include Docket ID NRC–2012–0107 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information in their comment submissions that they do not want to be publicly disclosed. Your request should state that the NRC will not edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in Title 10 of the Code of Federal Regulations (10 CFR) 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. NRC regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E–Filing rule (72 FR 49139, August 28, 2007). The E–Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E–Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E–Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC's public Web site at
A person filing electronically using the agency's adjudicatory E–Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E–Filing, may require a participant or party to use E–Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E–Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Non-
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed Technical Specifications changes are: (1) Adding Optimized ZIRLO
Westinghouse topical report WCAP–12610–P–A & CENPD–404–P–A, Addendum 1–A, “Optimized ZIRLOTM,” provides the details and results of material testing of Optimized ZIRLO
The NRC has previously approved use of Optimized ZIRLO
The change to the title of Reference 8 in Technical Specification 6.9.1.6.b is administrative in nature and does not alter any of the requirements of the affected TS. The proposed change does not modify any plant equipment and does not impact any failure modes that could lead to an accident. Additionally, the proposed change has no effect on the consequence of any analyzed accident since the change does not affect any equipment related to accident mitigation.
Based on this discussion, the proposed change does not significantly increase the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed Technical Specifications change adds Optimized ZIRLO
Therefore, the proposed changes to the MPS3 TSs related to the use of Optimized ZIRLO
The change to the title of Reference 8 in Technical Specification 6.9.1.6.b is administrative in nature. It does not modify any plant equipment and there is no impact on the capability of the existing equipment to perform their intended functions. No system setpoints are being modified and no changes are being made to the method in which plant operations are conducted. No new failure modes are introduced by the proposed changes. The proposed change does not introduce accident initiators or malfunctions that would cause a new or different kind of accident.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The cladding materials used for fuel rods are designed and tested to prevent excessive fuel temperatures, excessive fuel rod internal gas pressures due to fission .as releases, and excessive cladding stresses and strains. Optimized ZIRLO
The change to the title of Reference 8 in Technical Specification 6.9.1.6.b is administrative in nature. This change does not alter any of the requirements of the affected TS. The proposed change does not affect any of the assumptions used in the accident analysis, nor does it affect any operability requirements for equipment important to plant safety.
Therefore, the proposed change will not result in a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment changes the rated thermal power from 3411 megawatts thermal (MWt) to 3469 MWt; an increase of approximately 1.7% Rated Thermal Power. Duke Energy's evaluations have shown that all structures, systems and components (SSCs) are capable of performing their design function at the uprated power of 3469 MWt. A review of station accident analyses found that all acceptance criteria are still met at the uprated power of 3469 MWt.
The radiological consequences of operation at the uprated power conditions have been assessed. The proposed power uprate does not affect release paths, frequency of release, or the analyzed reactor core fission product inventory for any accidents previously evaluated in the Final Safety Analysis Report. Analyses performed to assess the effects of mass and energy releases remain valid. All acceptance criteria for radiological consequences continue to be met at the uprated power level.
As summarized in Sections IV, V, and VI of Enclosure 2, the proposed change does not involve any change to the design or functional requirements of the safety and support systems. That is, the increased power level neither degrades the performance of, nor increases the challenges to any safety systems assumed to function in the plant safety analysis.
While power level is an input to accident analyses, it is not an initiator of accidents. The proposed change does not affect any accident precursors and does not introduce any accident initiators. The proposed change does not impact the usefulness of the Surveillance Requirements (SRs) in evaluating the operability of required systems and components.
In addition, evaluation of the proposed TS change demonstrates that the availability of equipment and systems required to prevent or mitigate the radiological consequences of an accident is not significantly affected. Since the impact on the systems is minimal, it is concluded that the overall impact on the plant safety analysis is negligible.
Therefore, the proposed TS changes do not significantly increase the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
A Failure Modes and Effects Analysis of the new system was performed and the possible effects of failures of the new equipment and the increased power level on the overall plant systems were reviewed. This review found that no new or different accidents were created by the new equipment or the uprated power levels.
No installed equipment is being operated in a different manner. The proposed changes have no significant adverse affect on any safety-related structures, systems or components and do not significantly change the performance or integrity of any safety-related system.
The proposed changes do not adversely affect any current system interfaces or create any new interfaces that could result in an accident or malfunction of a different kind than previously evaluated. The uprated power does not create any new accident initiators. Credible malfunctions are bounded by the current accident analyses of record or recent evaluations demonstrating that applicable criteria are still met with the proposed changes.
Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Although the proposed amendment increases the operating power level of the plants, it retains the margin of safety because it is only increasing power by the amount equal to the reduction in uncertainty in the heat balance calculation. The margins of safety associated with the power uprate are those pertaining to core thermal power. These include fuel cladding, reactor coolant system pressure boundary, and containment barriers. Analyses demonstrate that the design basis continues to be met after the measurement uncertainty recapture (MUR) power uprate. Components associated with the reactor coolant system pressure boundary structural integrity, including pressure-temperature limits, vessel fluence, and pressurized thermal shock are bounded by the current analyses. Systems will continue to operate within their design parameters and remain capable of performing their intended safety functions.
The current McGuire safety analyses including the revised design basis radiological accident dose calculations, bound the power uprate.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Does operation of the facility in accordance with the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed single discharge header operation configuration for NSWS operation and the associated proposed TS and Bases changes have been evaluated to assess their impact on plant operation and to ensure that the design basis safety functions of safety related systems are not adversely impacted. During single discharge header operation, the operating NSWS header will be able to discharge all required NSWS flow from safety related components. [Probabilistic risk assessment] PRA has demonstrated that due to the limited proposed time in the single discharge header configuration, the resultant plant risk remains acceptable.
The purpose of this amendment request is to ultimately facilitate inspection and maintenance of the Unit 2 NSWS discharge headers within the Auxiliary Building. Therefore, NRC approval of this request will ultimately help to enhance the long-term structural integrity of the NSWS and will help to ensure the system's reliability for many years.
In general, the NSWS serves as an accident mitigation system and cannot by itself initiate an accident or transient situation. The only exception is that the NSWS piping can serve as a source of floodwater to safety related equipment in the Auxiliary Building or in the diesel generator buildings in the event of a leak or a break in the system piping. The probability of such an event is not significantly increased as a result of this proposed request. Safety related NSWS piping is tested and inspected in accordance with all applicable inservice testing and inservice inspection requirements. Given the negligible influence of flooding events on the NSWS for the submittal configuration (i.e., no dominant contribution from floods), it is judged that the analyses assessing the influence of these events provide an acceptable evaluation of the contribution of the flood risk for the requested Completion Time of 14 days.
The proposed 14 day TS Required Action Completion Time has been evaluated for risk significance and the results of this evaluation have been found acceptable. The probabilities of occurrence of accidents presented in the [updated final safety analysis report] UFSAR will not increase as a result of implementation of this change. Because the PRA analysis supporting the proposed change yielded acceptable results, the NSWS will maintain its required availability in response to accident situations. Since NSWS availability is maintained, the response of the plant to accident situations will remain acceptable and the consequences of accidents presented in the UFSAR will not increase.
Does operation of the facility in accordance with the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Implementation of this amendment will not create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed request does not affect the basic operation of the NSWS or any of the systems that it supports. These include the Emergency Core Cooling System, the Containment Spray System, the Containment Valve Injection Water System, the Auxiliary Feedwater System, the Component Cooling Water System, the Control Room Area Ventilation System, the Control Room Area Chilled Water System, the Auxiliary Building Filtered Ventilation Exhaust System, or the Diesel Generators. During proposed single discharge header operation, the NSWS will remain capable of fulfilling all of its design basis requirements. No new accident causal mechanisms are created as a result of NRC approval of this amendment request. No changes are being made to the plant which will introduce any new type of accident outside those assumed in the UFSAR.
Does operation of the facility in accordance with the proposed amendment involve a significant reduction in the margin of safety?
Implementation of this amendment will not involve a significant reduction in any margin of safety. Margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident situation. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The performance of these fission product barriers will not be impacted by implementation of this proposed TS amendment. During single discharge header operation, the NSWS and its supported systems will remain capable of performing their required functions. No safety margins will be impacted.
The PRA conducted for this proposed amendment demonstrated that the impact on overall plant risk remains acceptable during single discharge header operation. Therefore, there is not a significant reduction in the margin of safety.
Based upon the preceding discussion, Duke Energy has concluded that the proposed amendment does not involve a significant hazards consideration.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change revises the Steam Generator (SG) Program to modify the frequency of verification of SG tube integrity and SG tube sample selection. A steam generator tube rupture (SGTR) event is one of the design basis accidents that are analyzed as part of a plant's licensing basis. The proposed SG tube inspection frequency and sample selection criteria will continue to ensure that the SG tubes are inspected such that the probability of a SGTR is not increased. The consequences of a SGTR are bounded by the conservative assumptions in the design basis accident analysis. The proposed change will not cause the consequences of a SGTR to exceed those assumptions. The proposed change to reporting requirements and clarifications of the existing requirements have no affect on the probability or consequences of SGTR.
Therefore, it is concluded that the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes to the Steam Generator Program will not introduce any adverse changes to the plant design basis or postulated accidents resulting from potential tube degradation. The proposed change does not affect the design of the SGs or their
Therefore, the proposed change does not create the possibility of a new or different type of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The SG tubes in pressurized water reactors are an integral part of the reactor coolant pressure boundary and, as such, are relied upon to maintain the primary system's pressure and inventory. As part of the reactor coolant pressure boundary, the SG tubes are unique in that they are also relied upon as a heat transfer surface between the primary and secondary systems such that residual heat can be removed from the primary system. In addition, the SG tubes also isolate the radioactive fission products in the primary coolant from the secondary system. In summary, the safety function of a SG is maintained by ensuring the integrity of its tubes. Steam generator tube integrity is a function of the design, environment, and the physical condition of the tube. The proposed change does not affect tube design or operating environment. The proposed change will continue to require monitoring of the physical condition of the SG tubes such that there will not be a reduction in the margin of safety compared to the current requirements.
Therefore, it is concluded that the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The diesel generators (DGs) provide a source of emergency power when offsite power is either unavailable, or is degraded below a point that would allow safe unit operation. Undervoltage protection will generate a loss of power (LOP) DG start if a loss of voltage or degraded voltage condition occurs on the 4.16 kV [kilovolt] vital bus. The proposed technical specification (TS) change affects the voltage at which an emergency bus that is experiencing sustained degraded voltage will disconnect from offsite power and transfer to the DGs. While the TS limits are revised, the function remains the same and will continue to be performed. The first level undervoltage relays (FLUR) and second level undervoltage relays (SLUR) will continue to meet their required function to transfer 4.16 kV buses to the DGs in the event of insufficient offsite power voltage. This transfer will ensure that the class 1E equipment is capable of performing its function to meet the requirements of the accident analysis. The revised TS surveillance requirement (SR) 3.3.5.3 setpoints will not cause unnecessary separation of engineered safety [feature] (ESF) loads from the 230 kV System. The proposed change does not affect any accident initiators or precursors.
The ESF function delay times are bounding input parameters that represent actual plant performance for when these ESF functions can be credited to begin operating after an accident has already occurred. The increased ESF delay times are not physically related to the cause of any accident. Therefore, the increase in ESF delay times do not introduce the possibility of a change in the frequency of an accident previously evaluated. The revised LOCA control room operator and offsite dose analysis results remain within the applicable [General Design Criterion (GDC)] 19–1971 and 10 CFR 100 limits. Therefore, the proposed activity does not result in an increase in the consequence of an accident previously evaluated in the FSARU.
Therefore, the probability or consequences of any accident previously evaluated will not be significantly increased as a result of the proposed change.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
No new accident scenarios, transient precursors, failure mechanisms, or limiting single failures are introduced as a result of the proposed change. The revised surveillance requirements will continue to assure equipment reliability such that plant safety is maintained or will be enhanced. An increased ESF delay time is not an initiator of any accident and does not create any new system interactions or failure modes of any structures, systems or components (SSC).
Equipment important to safety will continue to operate as designed. The changes do not result in adverse conditions or result in any increase in the challenges to safety systems. Therefore, operation of the Diablo Canyon Power Plant in accordance with the proposed amendment will not create the possibility of a new or different type of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different accident from any accident previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
The DGs provide emergency electrical power to the safeguard buses in support of equipment required to mitigate the consequences of design basis accidents and anticipated operational occurrences, including an assumed loss of all offsite power. SR 3.3.5.3 verifies that the LOP DG start instrumentation channels respond to measured parameters within the necessary range and accuracy. The proposed amendment corrects nonconservative values in the TS limits for the degraded voltage protection function. The proposed change to this SR assures that design requirements of the emergency electrical power system continue to be met.
There are no new or significant changes to the initial conditions contributing to accident severity or consequences. The proposed increase in ESF delay times is considered an analysis input change. However, the safety analyses continue to meet all applicable acceptance criteria. The proposed amendment will not otherwise affect the plant protective boundaries, will not cause a release of fission products to the public, nor will it degrade the performance of any other SSCs important to safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change is to revise the Updated Final Safety Analysis Report to allow the use of the BEACON code methodology contained in WCAP–12472–P–A, Addendum 1–A. The BEACON code will be used to perform core flux mapping to support the performance of Technical Specification surveillances for power distribution limits and the use of the BEACON code will not cause an accident.
No physical changes are being made to the plant. With the change, Diablo Canyon Power Plant will continue to operate within the power distribution limits contained in the plant Technical Specifications.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change does not involve any physical changes to the plant. The BEACON code performs flux mapping of the core and is not used to control the performance of any plant equipment. Therefore, use of the BEACON code cannot cause an accident. If it is determined that the plant is not operating within the power distribution limits during the performance of a Technical Specification Surveillance using BEACON, then the applicable Technical Specification Condition and Required Action(s) will be entered.
Therefore, the proposed change does not create the possibility of a new or different accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
With the use of the BEACON code methodology contained in WCAP–12472–P–A, Addendum 1–A, the plant will continue to operate within the power distribution limits contained in the plant Technical Specifications. The use of the BEACON code does not involve any changes to the fuel, reactor vessel, or containment fission product barriers. The use of the BEACON code methodology includes requirements for control of uncertainties associated with use of the methodology and therefore there will be no impact on the accident analyses that are contained in the Updated Final Safety Analysis Report.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequence of an accident previously evaluated?
The proposed TS changes do not adversely affect any fission product barrier nor do they alter the safety function of safety systems, structures, or components, or their roles in accident prevention or mitigation. They do not change any credited operator actions nor do they physically change any plant system, structure, or component. The amount of iodine in the primary coolant and the Allowable Value for the main control room radiation monitors do not affect the initiation of any accident or transient. Therefore, the proposed amendment does not result in a significant increase in the probability of an accident previously evaluated. The changes do not adversely affect the protective and mitigative capabilities of the plant. The SSCs [structures, systems, and components] will continue to perform their intended safety functions. The proposed reduction in the amount of DOSE EQUIVALENT 1–131 (DEI–131) in the reactor coolant following a load transient has no impact on any plant configuration or system performance relied upon to mitigate the consequences of an accident.
The calculated radiological doses remain within the limits prescribed in 10 CFR Part 100 and GDC–19 [General Design Criterion 19 of Appendix A to 10 CFR Part 50] and are consistent with the methodology and acceptance criteria of Section 15.6.3 of NUREG–0800 and Appendix A of Section 15.1.5 of NUREG–0800.
The change to the Allowable Value for the main control room radiation monitors continues to ensure that the monitors are capable of performing their intended design function of isolating the main control room subsequent to an accident.
Therefore, the proposed amendment does not involve a significant increase in the consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed TS changes do not alter the configuration of the plant nor do they directly affect plant operation. The proposed TS changes do not result in the installation of any new equipment or system or the modification of any existing equipment or systems. No new operation procedures, conditions, or modes are created. As a result, the proposed TS changes do not introduce any new failure mechanisms, malfunctions, or accident initiators not already considered in the design and licensing basis. There will be no adverse effects or challenges imposed on any safety-related system as a result of these changes.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The calculated radiological doses remain within the limits prescribed in 10 CFR Part 100 and GDC–19, and are consistent with the methodology and acceptance criteria of
Therefore, the proposed amendment does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the NRC's Public Document Room (PDR), located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through the Agencywide Documents Access and Management System (ADAMS) in the NRC Library at
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 20, 2012.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 23, 2012.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 2, 2012.
The supplemental letter contained clarifying information and did not change the initial no significant hazards consideration determination, and did not expand the scope of the original
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 23, 2012.
The supplemental letter dated January 26, 2012, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 20, 2012.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 25, 2012.
The September 2, 2011, and November 18, 2011, supplements contained clarifying information and did not change the staff's initial proposed finding of no significant hazards consideration.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated March 30, 2012.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 23, 2012.
The supplements dated March 23, March 29, and April 2, 2012, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 19, 2012, which also contains its final no significant hazards consideration determination.
The licensee's supplemental letter contained clarifying information, did not change the scope of the original license amendment request, did not change the NRC staff's initial proposed finding of no significant hazards consideration determination, and did not expand the scope of the original
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 1, 2012.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 27, 2012.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Fukushima will hold a meeting on May 22–23, 2012, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review and discuss the staff's plans for implementation of the Near-Term Task Force Tier 3 Recommendations. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Antonio Dias (Telephone 301–415–6805 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240–888–9835) to be escorted to the meeting room.
The ACRS Subcommittee on Power Uprates will hold a meeting on May 24, 2012, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance, with the exception of portions that may be closed to protect information that is proprietary pursuant to 5 U.S.C. 552b(c)(4).
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the Safety Evaluation Report (SER) associated with the Grand Gulf Nuclear Station Unit 1 extended power uprate application. The Subcommittee will hear presentations by and hold discussions with the NRC staff, the licensee (Entergy Operations, Inc.), and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), John Lai (Telephone 301–415–5197 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with
Nuclear Regulatory Commission.
Weeks of May 14, 21, 28, June 4, 11, 18, 2012.
Commissioners' Conference Room, 11555 Rockville Pike Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of May 14, 2012.
There are no meetings scheduled for the week of May 21, 2012.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of June 18, 2012.
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—301–415–1292. Contact person for more information: Rochelle Bavol, 301–415–1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301–415–6200, TDD: 301–415–2100, or by email at
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an email to
Office of Special Counsel.
Notice For public comment.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), and implementing regulations at 5 CFR part 1320, the U.S. Office of Special Counsel (OSC), plans to request approval from the Office of Management and Budget (OMB) for use of four previously approved information collections consisting of three complaint forms and an electronic survey form. These collections are listed below. The current OMB approval for Forms OSC–11, OSC–12, OSC–13, and the OSC Survey expire 9/30/12. We are submitting all three forms and the electronic survey for renewal, based on the upcoming date of expiration. There are no changes being submitted with this request for renewal of the use of these forms. Current and former Federal employees, employee representatives, other Federal agencies, state and local government employees, and the general public are invited to comment on this information collection for the second time. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of OSC functions, including whether the information will have practical utility; (b) the accuracy of OSC's estimate of the burden of the proposed collections 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 should be received by June 11, 2012.
Karl Kammann, Director of Finance, at the address shown above; by facsimile at (202) 254–3711.
OSC is an independent agency responsible for, among other things, (1) investigation of allegations of prohibited personnel practices defined by law at 5 U.S.C. 2302(b), protection of whistleblowers, and certain other illegal employment practices under titles 5 and 38 of the U.S. Code, affecting current or former Federal employees or applicants for employment, and covered state and local government employees; and (2) the interpretation and enforcement of Hatch Act provisions on political activity in chapters 15 and 73 of title 5 of the U.S. Code.
Copies of the OSC Forms 11, 12, and 13 can be found at:
The survey form for the collection of information is available for review by calling OSC at (202) 254–3600.
These forms are used by current and former Federal employees and applicants for Federal employment to submit allegations of possible prohibited personnel practices or other prohibited activity for investigation and possible prosecution by OSC. This survey form is used to survey current and former Federal employees and applicants for Federal employment who have submitted allegations of possible prohibited personnel practices or other prohibited activity for investigation and possible prosecution by OSC, and whose matter has been closed or otherwise resolved during the prior fiscal year, on their experience at OSC. Specifically, the survey asks questions relating to whether the respondent was: (1) Apprised of his or her rights; (2) successful at the OSC or at the Merit Systems Protection Board; and (3) satisfied with the treatment received at the OSC.
U.S. Office of Personnel Management.
60-Day notice and request for comments.
The Combined Federal Campaign, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on a revision to an existing information collection request, Combined Federal Campaign Applications OMB Control No. 3206–0131, which include OPM Forms 1647 A–E. As required by the Paperwork Reduction Act of 1995, (Pub. L. 104–13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104–106), OPM is soliciting comments for this collection. The Office of Personnel Management is particularly interested in comments that:
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, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until July 16, 2012. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the U.S. Office of Personnel Management, Combined Federal Campaign, 1900 E. Street NW., Washington, DC 20415, Attention: Curtis Rumbaugh or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the U.S. Office of Personnel Management, Combined Federal Campaign, 1900 E. Street NW., Washington, DC 20415, Attention: Curtis Rumbaugh or sent via electronic mail to
The Combined Federal Campaign Eligibility Applications are used to review the eligibility of national, international, and local charitable organizations that wish to participate in the Combined Federal Campaign. The proposed revisions reflect changes in eligibility guidance from the Office of Personnel Management.
Office of Personnel Management.
Notice.
The CFC–50 Advisory Commission will hold its fourth and final meeting on May 29, 2012, at the time and location shown below. The Commission shall advise the Director of the U.S. Office of Personnel Management (OPM) on strengthening the integrity, the operation and effectiveness of the Combined Federal
The meeting is open to the public. Please contact the Office of Personnel Management at the address shown below if you wish to present material to the Commission at the meeting. The manner and time prescribed for presentations may be limited, depending upon the number of parties that express interest in presenting information.
May 29, 2012 at 2 p.m.
Keith Willingham, Director, Combined Federal Campaign, U.S. Office of Personnel Management, 1900 E St. NW., Suite 6484, Washington, DC 20415. Phone (202) 606–2564, FAX (202) 606–5056 or email at
U.S. Office of Personnel Management.
Notice.
The Federal Prevailing Rate Advisory Committee is issuing this notice to cancel the May 24, 2012, public meeting scheduled to be held in Room 5A06A, U.S. Office of Personnel Management Building, 1900 E Street NW., Washington, DC. The original
Madeline Gonzalez, 202–606–2838; email
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add Parcel Select and Parcel Return Service Contract 3 to the competitive product list. This notice addresses procedural steps associated with this filing.
Comments are due: May 17, 2012.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product.
• Attachment A—a redacted version of Governors' Decision No. 11–6 and accompanying analysis. An explanation and justification is provided in the Governors' Decision and analysis filed in the unredacted version under seal;
• Attachment B—a redacted version of the instant contract;
• Attachment C—the proposed change in the Mail Classification Schedule;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a)(1), through (a)(3); and
• Attachment F—an Application for Non-public Treatment of the material filed under seal. The materials filed under seal are the unredacted version of the instant contract and the required cost and revenue data.
In the Statement of Supporting Justification, Karen F. Key, Manager, Shipping Products, asserts that the instant contract will cover its attributable costs, make a positive contribution to cover institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's institutional costs.
The Postal Service filed much of its supporting materials, including the unredacted version of the instant contract, under seal.
The Commission establishes Docket Nos. MC2012–15 and CP2012–22 to consider the Request and the instant contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in these dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than May 17, 2012. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Natalie Rea Ward to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2012–15 and CP2012–22 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Natalie Rea Ward is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due not later than May 17, 2012.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 11A(a)(3) of the Securities Exchange Act of 1934 (“Act”)
The current Sponsors of the OLPP are BATS, BSE., CBOE, C2, ISE., NYSE Amex, NYSE Arca, OCC, Phlx and Nasdaq. The proposed amendment to the OLPP would add BOX as a Sponsor of the OLPP. A national securities exchange may become a Sponsor if it satisfies the requirement of Section 7 of the OLPP. Specifically an Eligible Exchange
Section 7(ii) of the OLPP sets forth the process by which an Eligible Exchange may effect an amendment to the OLPP. Specifically, an Eligible Exchange must: (a) execute a copy of the OLPP with the only change being the addition of the new sponsor's name in Section 8 of the OLPP;
The foregoing proposed OLPP amendment has become effective pursuant to Rule 608(b)(3)(iii)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed amendment is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, May 17, 2012 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Gallagher, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting scheduled for Thursday, May 17, 2012 will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551–5400.
Closed Meeting.
100 F Street NE., Washington, DC.
May 10, 2012 at 2 p.m.
Time Change and Additional Item.
The Closed Meeting scheduled for Thursday, May 10, 2012 at 2 p.m. has been changed to start at 3:30 p.m. on May 10, 2012.
The following matter will also be considered during the 3:30 p.m. Closed Meeting scheduled for Thursday, May 10, 2012:
An examination of a financial institution.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions as set forth in 5 U.S.C. 552b(c)(4) and (8) and 17 CFR 200.402(a)(4) and (8), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Gallagher, as duty officer, voted to consider the item listed for the Closed Meeting in closed session, and determined that no earlier notice thereof was possible.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551–5400.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Friday, May 11, 2012 at 4 p.m.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions as set forth in 5 U.S.C. 552b(c)(4) and (8) and 17 CFR 200.402(a)(4) and (8), permit consideration of the scheduled matters at the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
Commissioner Gallagher, as duty officer, voted to consider the item listed for the Closed Meeting in closed session, and determined that no earlier notice thereof was possible.
The subject matter of the May 11, 2012 Closed Meeting will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend certain sections of the Amended and Restated Bylaws of EDGX Exchange, Inc. (the “Current Bylaws”) to conform with the Exchange's current corporate governance practices. The text of the proposed rule change is attached as Exhibit 5 and is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend certain sections of the Current Bylaws to conform with the Exchange's current corporate governance practices. In addition, the Exchange proposes to address other non-substantive revisions to reflect changes since the Securities and Exchange Commission (the “SEC” or the “Commission”) granted the Exchange's registration as a national securities exchange in March 2010.
Article III, Section 5 of the Current Bylaws state that the Chief Executive Officer shall also be the Chairman of the Board of Directors (the “Board”). The Exchange proposes to revise this provision in the New Bylaws to state, “[t]he Directors shall choose among themselves who will be the Chairman of the Board (the “Chairman”), who may also be the Chief Executive Officer,” because the Exchange believes separating the two roles is a good corporate governance practice and provides the Board additional flexibility when determining the Chairman. In addition, the Exchange proposes to add clarifying language that states that if the Chief Executive Officer or other member of management of the Exchange is the Chairman, then he or she shall not participate in executive sessions of the Board. The Exchange believes this amendment helps to preserve the purpose of the executive session, which is for the Board to meet without the Exchange's management present. Similarly, the Exchange proposes to make a conforming amendment to Article VII, Section 6, to provide that the Chief Executive Officer may be the Chairman of the Board.
The Exchange's Board consists of an Appeals Committee, an Audit Committee, a Compensation Committee, an Executive Committee and a Regulatory Oversight Committee (collectively, the “Board Committees”). In Article V, the Exchange proposes to amend the Current Bylaws to more fully describe the responsibilities of the Board Committees and to be consistent with the provisions of the Board Committees' charters.
In Article V, Section 5(a), the Exchange proposes to amend the Current Bylaws to state that the Compensation Committee is also responsible for assisting the Board in fulfilling its responsibilities to ensure the structures of compensation systems of the Exchange do not interfere with the Exchange's ability to fulfill its responsibilities as a Self Regulatory Organization (“SRO”).
In Article V, Section 5(b) (proposed to be re-numbered as Section 5(b)(i)–(vii)), the Exchange proposes to amend the Current Bylaws to state that the Audit Committee is also responsible for assisting the Board in fulfilling its responsibilities to oversee the financial soundness and compliance resources and the effectiveness of financial and compliance control processes related to the operation of the Exchange; taking appropriate actions to oversee overall corporate policy for quality activities and reporting of an SRO, sound business risk management practices and ethical behavior; overseeing all activities of the Exchange's internal audit function, including management's responsiveness to internal audit recommendations and selecting and replacing and determining the compensation of the head of the Internal Audit Department (or if such position is outsourced, selecting and replacing and determining the compensation of the third party provider), in consultation with management; and overseeing enterprise risk and technology operations, including security and business continuity measures. The Exchange also proposes to amend the language in Article V, Section 5(b)(iv) and (v), respectively, to elaborate on the Audit Committee's responsibility to provide oversight over the systems of internal controls, technology and information integrity established by management and the Board and the Exchange's legal and compliance process as well as to further clarify the Audit Committee's responsibilities around independent auditors.
In Article V, Section 5(c), the Exchange proposes to amend the Current Bylaws to elaborate on the Regulatory Oversight Committee's duties to assist the Board in fulfilling its responsibilities to oversee the adequacy and effectiveness of the Exchange's regulatory and SRO responsibilities, including those responsibilities with regard to each of its facilities, as defined in Section 3(a)(2) of the Securities and Exchange Act of 1934 (the “Act”). The Exchange also proposes to amend the language in Article V, Section 5(c) to clarify that the Regulatory Oversight Committee's responsibility to oversee the overall effectiveness of the
In Article V, Section 5(e), the Exchange proposes to amend the Current Bylaws to clarify that the Executive Committee is also responsible for facilitating coordination of the Board processes among other things.
The Exchange proposes to amend the title of Article VI from “Nominating and Governance Committees” to “Committees of the Exchange” in the New Bylaws because this section includes the Nominating and Governance Committees and the Exchange Member Nominating Committee.
In Article VI, Section 2, the Exchange proposes to amend the Current Bylaws to elaborate on the Nominating and Governance Committee's responsibilities to-develop and recommend governance policies to the Board and to oversee an orientation for new Directors. The Exchange also proposes to amend the language in Article VI, Section 2 to clarify that the Nominating and Governance Committee nominates Director candidates and chairpersons to serve on the Board's Committee. Other non-substantive grammatical and stylistic changes are also proposed.
In Article VI, Section 3, the Exchange proposes to amend the Current Bylaws to state that the Exchange Member Nominating Committee is also responsible for nominating candidates for all other vacant or new Exchange Member Director positions on the Board.
Article VII of the Current Bylaws state that the officers of the Exchange include a President, Vice President, Assistant Secretary, Treasurer and Assistant Treasurer, among others. However, the Exchange has not now or ever designated a person to be a President, Vice President, Assistant Secretary, Treasurer or Assistant Treasurer. In addition, the duties enumerated in the Current Bylaws are currently performed by other employees at the Exchange. Specifically, the Chief Executive Officer has general supervision over the operations of the Exchange. In addition, the Chief Executive Officer will delegate to certain Exchange employees the powers and duties usually incident to the office of President and Vice President in the event of the Chief Executive Officer's absence. Therefore, the Exchange proposes deleting the provisions in Article VII, Sections 7 and 8 that refer to the responsibilities of the President and the Vice President since these responsibilities are included within the role of the Chief Executive Officer, which is generally described in Article VII, Section 6.
In addition, the Secretary will delegate to certain Exchange employees the powers and duties usually incident to the office of Secretary in the event of the Secretary's absence. Therefore, the Exchange proposes deleting the provisions in Article VII, Section 11 that refers to the responsibilities of the Assistant Secretary. Similarly, the Exchange proposes making a non-substantive stylistic change to move the placement of the reference to the “Secretary” in Article VII, Section 1.
Lastly, the Chief Financial Officer has general supervision over the powers and duties usually incident to the office of the Treasurer. The Board approves the appointment of a Chief Financial Officer in the form of a Board resolution annually. In addition, the Chief Financial Officer will delegate to certain Exchange employees the powers and duties usually incident to the office of Treasurer and Assistant Treasurer in the event of the Chief Financial Officer's absence. Therefore, the Exchange proposes deleting the provisions in Article VII, Sections 12 and 13 that refer to the responsibilities of the Treasurer and Assistant Treasurer. Similarly, the Exchange proposes making a conforming amendment to delete the reference to the Treasurer in Article VII, Section 1.
In addition, the Exchange proposes to replace references to the President with the Chief Executive Officer, where applicable, given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer. The Exchange's proposed revisions include the following specific amendments:
Article III, Section 7(b) of the Current Bylaws states, “Any Director may resign at any time either upon notice of resignation to the Chairman, the President or the Secretary.” The Exchange proposes to replace the reference to “the President” with “the Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer.
Article III, Section 10(a) of the Current Bylaws states, “Special meetings of the Board may be called on a minimum of two (2) days notice to each Director by the Chairman or the President, and shall be called by the Secretary upon the written request of three (3) Directors then in office.” The Exchange proposes to replace the reference to “the President” with “the Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer.
Article IV, Section 2 of the Current Bylaws states, “Special meetings of the stockholders, for any purpose or purposes, may be called by the Chairman, the Board or the President, and shall be called by the Secretary at the request in writing of stockholders owning not less than a majority of the then issued and outstanding capital stock of the Company entitled to vote.” The Exchange proposes to replace the reference to “the President” with the “Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer.
Article VII, Section 1 of the Current Bylaws states, “The officers of the Company shall include a Chief Executive Officer, a President, a Chief Regulatory Officer, a Secretary, a Treasurer and such other officers as in the Board's opinion are desirable for the conduct of the business of the Company. Any two or more offices may be held by the same person, except that the offices of the President and Secretary may not be held by the same person.” The Exchange proposes to delete the references to the Treasurer and to replace the reference to “the President” with “the Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer.
Article VII, Section 3 of the Current Bylaws states, “Any officer may resign at any time upon notice of resignation to the Chairman, the President or the Secretary.” The Exchange proposes to replace the reference to “the President” with “the Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer. In addition, the Exchange proposes to add language stating that an officer may also resign to a designee of the Board, if none such officers are then-appointed, in order to improve the Exchange's governance framework by providing for an additional option should the Chief Executive Officer or Secretary not be appointed at the time of the officer's resignation.
In addition, in Article VII, Section 9 (proposed to be re-numbered as Section 7), the Exchange proposes to make conforming amendments to delete the
In Article XI, Section 7(a) (proposed to be re-numbered as Section 6(a)), the Exchange proposes to specifically identify the persons authorized as signatories of all checks, drafts, bills of exchange, notes or other obligations or orders for the payment of money that are signed in the name of the Exchange. The New Bylaws will state, “All checks, drafts, bills of exchange, notes or other obligations or orders for the payment of money shall be signed in the name of the Company by such officer or officers or person or persons as the Board, or a duly authorized committee thereof, may from time to time designate, or by the Chief Executive Officer, the Chief Regulatory Officer, the Secretary or such other officer or officers or person or persons as the Chief Executive Officer, the Chief Regulatory Officer or the Secretary may from time to time designate (collectively, the “Authorized Officers”).” The Exchange proposes to make conforming amendments to the provisions in Article XI, Section 7(b) (proposed to be re-numbered as Section 6(b)) in order to permit any Authorized Officer of the Exchange to execute all applications, written instruments and papers required by any department of the United States government or by any state, county, municipal or other governmental authority in the name of the Company.
The Current Bylaws do not address stock certificates and uncertificated shares. Therefore, the Exchange proposes to add Article XI, Section 10 in the New Bylaws to state, “[t]he shares of the Exchange may be represented by certificates, provided that the Board may provide by resolution that some or all of any or all classes or series of the Exchange's stock shall be uncertificated shares. Every holder of stock of the Exchange represented by certificates shall otherwise be entitled to have a certificate, in such form as may be prescribed by law and by the Board, representing the number of shares held by such holder registered in certificate form. Each such certificate (if any) shall be signed in a manner that complies with Section 158 of the DGCL.”
In addition to the changes set forth above, the Exchange proposes to make the following non-substantive changes to the Current Bylaws.
The Exchange proposes to include the date that the Current Bylaws were amended on the title page to notify Members of the effective date of the New Bylaws.
The Exchange proposes to re-number various sections of the Current Bylaws in order to eliminate gaps in the numbering and/or lettering of the sections resulting from the proposed revisions as described in Exchange's rule filing.
The Exchange proposes to delete the defined terms “broker” in Article I, paragraph (d), and “dealer” in Article I, paragraph (j) since neither term is referenced again in the Current Bylaws.
The Exchange proposes to amend the reference to the “Holdings Operating Agreement” in Article I, paragraph (u) (proposed to be re-numbered as paragraph (s)), to notify Members that the Fifth Amended and Restated Limited Liability Company Operating Agreement of Direct Edge Holdings LLC, that was revised on June 12, 2010, is currently in effect.
In Article I, paragraph (v) (proposed to be re-numbered as paragraph (t)), the Exchange proposes to replace the reference to the “EDGX Exchange, Inc.” with “EDGA Exchange, Inc.” to correct a typographical error.
The Exchange proposes to delete dated references to time periods and events that have expired since the proposal of the New Bylaws. Specifically, the Exchange proposes to delete references to the Operational Date in Article I, paragraph (y) and Article XI, Section 1 because the Commission granted the Exchange's registration as a national stock exchange on March 12, 2010.
Similarly, the Exchange proposes to delete provisions regarding the initial Board in Article III, Section 2(a), and the initial Nominating and Governance Committee and the initial Exchange Member Nominating Committee in Article VI, Section 1, since these appointments have already occurred. Similarly, the Exchange proposes deleting Exhibits A and B in the Current Bylaws as this information is obsolete. The Exchange proposes to omit Exhibits A and B in the New Bylaws because the Exchange updates this information through the Commission's Form 1 amendment (Exhibits C and J),
The Exchange proposes to correct a typographical error in Article I, paragraph (cc) (proposed to be re-numbered as paragraph (z)), by referencing “an” Exchange in the New Bylaws.
The Exchange proposes to correct a typographical error by deleting “and Governance” in Article III, Section 6(b) when identifying the Exchange Member Nominating Committee.
The Exchange proposes to insert “of” and delete “or” in Article IX, Section 3(a) to correct a typographical error. Therefore, the New Bylaws will state, “* * * the trading in, or operation of, the national securities exchange operated by the Company or any other organized securities markets that may be operated by the Company, the operation of any automated system owned or operated by the Company, and the participation in any such system
In Article XI, Section 9 (proposed to be re-numbered as Section 8), the Exchange proposes to clarify that “PDF or similar transmission,” where the receipt can be confirmed, will satisfy the notice requirement.
The Exchange believes that its proposal is consistent with the requirements of Section 6(b)(1) of the Act,
Specifically, the proposed amendments to certain provisions will conform the Current Bylaws with the Exchange's current corporate governance practices. In addition, the Exchange's proposed amendments address other non-substantive revisions to reflect changes since the Commission
In addition, these proposed amendments will improve efficiency and coordination among the Board and its Committee's by revising the Current Bylaws to clearly delineate each Committee's responsibilities. The proposed amendments will also benefit the Exchange and its Members because the New Bylaws will reflect the current governance structure, including the responsibilities of its officers thereby increasing the transparency of this process.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
The Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing.
The proposed amendments to certain provisions of the Current Bylaws are designed to conform with the Exchange's current corporate governance practices. In addition, the Exchange's proposed amendments address other non-substantive revisions to reflect changes since the Commission granted the Exchange's registration as a national securities exchange in March 2010.
EDGX further requests that the Commission waive the 30-day operative delay period after which a proposed rule change under Rule 19b–4(f)(6) becomes operative. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. It will enable the Exchange to immediately adopt the New Bylaws which should provide an enhanced, more transparent governance structure for the Exchange and its Members. The Commission designates the proposed rule change as operative upon filing.
the proposed rule's impact on efficiency, competition, and capital formation.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ proposes to institute an excess order fee. NASDAQ will implement the proposed change on June 1, 2012. The text of the proposed rule change is available at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NASDAQ is concerned that the inefficient order entry practices of certain market participants may be placing excessive burdens on the systems of NASDAQ and its members and may negatively impact the usefulness and life cycle cost of market data.
The fee will be imposed on market participant identifiers (“MPID”) that have characteristics indicative of inefficient order entry practices. In general, the determination of whether to impose the fee on a particular MPID will be made by calculating the ratio between (i) entered orders, weighted by the distance of the order from the national best bid or offer (“NBBO”), and (ii) orders that execute in whole or in part. The fee is imposed on MPIDs with an “Order Entry Ratio” of more than 100. The Order Entry Ratio is calculated, and the Excess Order Fee imposed, on a monthly basis.
For each MPID, the Order Entry Ratio is the ratio of (i) the MPID's “Weighted Order Total” to (ii) the greater of one (1) or the number of displayed, non-marketable orders
Thus, in calculating the Weighted Order Total, an order that was more than 2.0% away from the NBBO would be equivalent to three orders that were 0.50% away. Due to the applicable Weighting Factor of 0x, orders entered less than 0.20% away from the NBBO would not be included in the Weighted Order Total, but would be included in the “executed” orders component of the Order Entry Ratio if they execute in full or part. Orders sent by market makers in securities in which they are registered, through the MPID applicable to the registration, are excluded from both components of the ratio.
The following example illustrates the calculation of the Order Entry Ratio:
• A member enters 35,000,000 displayed, liquidity-providing orders:
o The member is registered as a market maker with respect to 20,000,000 of the orders. These orders are excluded from the calculation.
o 10,000,000 orders are entered at the NBBO. The Weighting Factor for these orders is 0x.
○ 5,000,000 orders are entered at a price that is 1.50% away from the NBBO. The Weighting Factor for these orders is 2x.
• Of the 15,000,000 orders included in the calculation, 90,000 are executed.
• The Weighted Order Total is (10,000,000 × 0) + (5,000,000 × 2) = 10,000,000. The Order Entry Ratio is 10,000,000/90,000 = 111
If an MPID has an Order Entry Ratio of more than 100, the amount of the Order Entry Fee will be calculated by determining the MPID's “Excess Weighted Orders.” Excess Weighted Orders are calculated by subtracting (i) the Weighted Order Total that would result in the MPID having an Order Entry Ratio of 100 from (ii) the MPID's actual Weighted Order Total. In the example above, the Weighted Order Total that would result in an Order Entry Ratio of 100 is 9,000,000, since 9,000,000/90,000 = 100. Accordingly, the Excess Weighted Orders would be 10,000,000 − 9,000,000 = 1,000,000.
The Excess Order Fee charged to the member will then be determined by multiplying the “Applicable Rate” by the number of Excess Weighted Orders. The Applicable Rate is determined based on the MPID's Order Entry Ratio:
In the example above, the Applicable Rate would be $0.005, based on the MPID's Order Entry Ratio of 111. Accordingly, the monthly Excess Order Fee would be 1,000,000 × $0.005 = $5,000.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ believes that the Order Entry Fee is reasonable because it is designed to achieve improvements in the quality of displayed liquidity and market data that will benefit all market participants. In addition, although the level of the fee may theoretically be very high, the fee is reasonable because market participants may readily avoid the fee by making improvements in their order entry practices that reduce the number of orders they enter, bring the prices of their orders closer to the NBBO, and/or increase the percentage of their orders that execute. For similar reasons, the fee is consistent with an equitable allocation of fees, because although the fee may apply to only a small number of market participants, the fee would be applied to them in order to encourage better order entry practices that will benefit all market participants. Ideally, the fee will be applied to no one, because market participants will adjust their behavior in order to avoid the fee. Finally, NASDAQ believes that the fee is not unfairly discriminatory. Although the fee may apply to only a small number of market participants, it will be imposed because of the negative externalities that such market participants impose on others through inefficient order entry practices. Accordingly, NASDAQ believes that it is fair to impose the fee on these market participants in order to incentivize them to modify their behavior and thereby benefit the market.
Finally, NASDAQ believes that the fee will help to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest, because the fee is designed to reduce the extent of non-actionable orders in the market, thereby promoting greater order interaction, increasing the quality of market data, and inhibiting potentially abusive trading practices.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Specifically, NASDAQ believes that the fee will constrain market participants from pursuing certain inefficient and potentially abusive trading strategies. To the extent that this change may be construed as a burden on competition, NASDAQ believes that it is appropriate in order to further the purposes of Section 6(b)(5) of the Act.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend certain sections of the Amended and Restated Bylaws of EDGA Exchange, Inc. (the “Current Bylaws”) to conform with the Exchange's current corporate governance practices. The text of the proposed rule change is attached as Exhibit 5 and is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend certain sections of the Current Bylaws to conform with the Exchange's current corporate governance practices. In addition, the Exchange proposes to address other non-substantive revisions to reflect changes since the Securities and Exchange Commission (the “SEC” or the “Commission”) granted the Exchange's registration as a national securities exchange in March 2010.
Article III, Section 5 of the Current Bylaws state that the Chief Executive Officer shall also be the Chairman of the Board of Directors (the “Board”). The Exchange proposes to revise this provision in the New Bylaws to state, “[t]he Directors shall choose among themselves who will be the Chairman of the Board (the “Chairman”), who may also be the Chief Executive Officer,” because the Exchange believes separating the two roles is a good corporate governance practice and provides the Board additional flexibility when determining the Chairman. In addition, the Exchange proposes to add clarifying language that states that if the Chief Executive Officer or other member of management of the Exchange is the Chairman, then he or she shall not participate in executive sessions of the Board. The Exchange believes this amendment helps to preserve the purpose of the executive session, which is for the Board to meet without the Exchange's management present. Similarly, the Exchange proposes to make a conforming amendment to Article VII, Section 6, to provide that the Chief Executive Officer may be the Chairman of the Board.
The Exchange's Board consists of an Appeals Committee, an Audit Committee, a Compensation Committee, an Executive Committee and a Regulatory Oversight Committee (collectively, the “Board Committees”). In Article V, the Exchange proposes to amend the Current Bylaws to more fully describe the responsibilities of the Board Committees and to be consistent with the provisions of the Board Committees' charters.
In Article V, Section 5(a), the Exchange proposes to amend the Current Bylaws to state that the Compensation Committee is also responsible for assisting the Board in fulfilling its responsibilities to ensure the structures of compensation systems of the Exchange do not interfere with the Exchange's ability to fulfill its responsibilities as a Self Regulatory Organization (“SRO”).
In Article V, Section 5(b) (proposed to be re-numbered as Section 5(b)(i)–(vii)), the Exchange proposes to amend the Current Bylaws to state that the Audit Committee is also responsible for assisting the Board in fulfilling its responsibilities to oversee the financial soundness and compliance resources and the effectiveness of financial and compliance control processes related to the operation of the Exchange; taking appropriate actions to oversee overall corporate policy for quality activities and reporting of a SRO, sound business risk management practices and ethical behavior; overseeing all activities of the Exchange's internal audit function, including management's responsiveness to internal audit recommendations and selecting and replacing and determining the compensation of the head of the Internal Audit Department (or if such
In Article V, Section 5(c), the Exchange proposes to amend the Current Bylaws to elaborate on the Regulatory Oversight Committee's duties to assist the Board in fulfilling its responsibilities to oversee the adequacy and effectiveness of the Exchange's regulatory and SRO responsibilities, including those responsibilities with regard to each of its facilities, as defined in Section 3(a)(2) of the Securities and Exchange Act of 1934 (the “Act”). The Exchange also proposes to amend the language in Article V, Section 5(c) to clarify that the Regulatory Oversight Committee's responsibility to oversee the overall effectiveness of the Exchange's performance of its regulatory functions.
In Article V, Section 5(e), the Exchange proposes to amend the Current Bylaws to clarify that the Executive Committee is also responsible for facilitating coordination of the Board processes among other things.
The Exchange proposes to amend the title of Article VI from “Nominating and Governance Committees” to “Committees of the Exchange” in the New Bylaws because this section includes the Nominating and Governance Committees and the Exchange Member Nominating Committee.
In Article VI, Section 2, the Exchange proposes to amend the Current Bylaws to elaborate on the Nominating and Governance Committee's responsibilities to develop and recommend governance policies to the Board and to oversee an orientation for new Directors. The Exchange also proposes to amend the language in Article VI, Section 2 to clarify that the Nominating and Governance Committee nominates Director candidates and chairpersons to serve on the Board's Committee. Other non-substantive grammatical and stylistic changes are also proposed.
In Article VI, Section 3, the Exchange proposes to amend the Current Bylaws to state that the Exchange Member Nominating Committee is also responsible for nominating candidates for all other vacant or new Exchange Member Director positions on the Board.
Article VII of the Current Bylaws state that the officers of the Exchange include a President, Vice President, Assistant Secretary, Treasurer and Assistant Treasurer, among others. However, the Exchange has not now or ever designated a person to be a President, Vice President, Assistant Secretary, Treasurer or Assistant Treasurer. In addition, the duties enumerated in the Current Bylaws are currently performed by other employees at the Exchange. Specifically, the Chief Executive Officer has general supervision over the operations of the Exchange. In addition, the Chief Executive Officer will delegate to certain Exchange employees the powers and duties usually incident to the office of President and Vice President in the event of the Chief Executive Officer's absence. Therefore, the Exchange proposes deleting the provisions in Article VII, Sections 7 and 8 that refer to the responsibilities of the President and the Vice President since these responsibilities are included within the role of the Chief Executive Officer, which is generally described in Article VII, Section 6.
In addition, the Secretary will delegate to certain Exchange employees the powers and duties usually incident to the office of Secretary in the event of the Secretary's absence. Therefore, the Exchange proposes deleting the provisions in Article VII, Section 11 that refers to the responsibilities of the Assistant Secretary. Similarly, the Exchange proposes making a non-substantive stylistic change to move the placement of the reference to the “Secretary” in Article VII, Section 1.
Lastly, the Chief Financial Officer has general supervision over the powers and duties usually incident to the office of the Treasurer. The Board approves the appointment of a Chief Financial Officer in the form of a Board resolution annually. In addition, the Chief Financial Officer will delegate to certain Exchange employees the powers and duties usually incident to the office of Treasurer and Assistant Treasurer in the event of the Chief Financial Officer's absence. Therefore, the Exchange proposes deleting the provisions in Article VII, Sections 12 and 13 that refer to the responsibilities of the Treasurer and Assistant Treasurer. Similarly, the Exchange proposes making a conforming amendment to delete the reference to the Treasurer in Article VII, Section 1.
In addition, the Exchange proposes to replace references to the President with the Chief Executive Officer, where applicable, given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer. The Exchange's proposed revisions include the following specific amendments:
Article III, Section 7(b) of the Current Bylaws states, “Any Director may resign at any time either upon notice of resignation to the Chairman, the President or the Secretary.” The Exchange proposes to replace the reference to “the President” with “the Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer.
Article III, Section 10(a) of the Current Bylaws states, “Special meetings of the Board may be called on a minimum of two (2) days notice to each Director by the Chairman or the President, and shall be called by the Secretary upon the written request of three (3) Directors then in office.” The Exchange proposes to replace the reference to “the President” with “the Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer.
Article IV, Section 2 of the Current Bylaws states, “Special meetings of the stockholders, for any purpose or purposes, may be called by the Chairman, the Board or the President, and shall be called by the Secretary at the request in writing of stockholders owning not less than a majority of the then issued and outstanding capital stock of the Company entitled to vote.” The Exchange proposes to replace the reference to “the President” with the “Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer.
Article VII, Section 1 of the Current Bylaws states, “The officers of the Company shall include a Chief Executive Officer, a President, a Chief Regulatory Officer, a Secretary, a Treasurer and such other officers as in the Board's opinion are desirable for the conduct of the business of the Company.
Article VII, Section 3 of the Current Bylaws states, “Any officer may resign at any time upon notice of resignation to the Chairman, the President or the Secretary.” The Exchange proposes to replace the reference to “the President” with “the Chief Executive Officer,” given that the Exchange does not have a President and this is generally one of the powers or duties that is incident to the office of the Chief Executive Officer. In addition, the Exchange proposes to add language stating that an officer may also resign to a designee of the Board, if none such officers are then-appointed, in order to improve the Exchange's governance framework by providing for an additional option should the Chief Executive Officer or Secretary not be appointed at the time of the officer's resignation.
In addition, in Article VII, Section 9 (proposed to be re-numbered as Section 7), the Exchange proposes to make conforming amendments to delete the references to “Executive Vice President” or “Senior Vice President” to describe the type of officer that may be designated as the Chief Regulatory Officer.
In Article XI, Section 7(a) (proposed to be re-numbered as Section 6(a)), the Exchange proposes to specifically identify the persons authorized as signatories of all checks, drafts, bills of exchange, notes or other obligations or orders for the payment of money that are signed in the name of the Exchange. The New Bylaws will state, “All checks, drafts, bills of exchange, notes or other obligations or orders for the payment of money shall be signed in the name of the Company by such officer or officers or person or persons as the Board, or a duly authorized committee thereof, may from time to time designate, or by the Chief Executive Officer, the Chief Regulatory Officer, the Secretary or such other officer or officers or person or persons as the Chief Executive Officer, the Chief Regulatory Officer or the Secretary may from time to time designate (collectively, the “Authorized Officers”).” The Exchange proposes to make conforming amendments to the provisions in Article XI, Section 7(b) (proposed to be re-numbered as Section 6(b)) in order to permit any Authorized Officer of the Exchange to execute all applications, written instruments and papers required by any department of the United States government or by any state, county, municipal or other governmental authority in the name of the Company.
The Current Bylaws do not address stock certificates and uncertificated shares. Therefore, the Exchange proposes to add Article XI, Section 10 in the New Bylaws to state, “[t]he shares of the Exchange may be represented by certificates, provided that the Board may provide by resolution that some or all of any or all classes or series of the Exchange's stock shall be uncertificated shares. Every holder of stock of the Exchange represented by certificates shall otherwise be entitled to have a certificate, in such form as may be prescribed by law and by the Board, representing the number of shares held by such holder registered in certificate form. Each such certificate (if any) shall be signed in a manner that complies with Section 158 of the DGCL.”
In addition to the changes set forth above, the Exchange proposes to make the following non-substantive changes to the Current Bylaws.
The Exchange proposes to include the date that the Current Bylaws were amended on the title page to notify Members of the effective date of the New Bylaws.
The Exchange proposes to re-number various sections of the Current Bylaws in order to eliminate gaps in the numbering and/or lettering of the sections resulting from the proposed revisions as described in Exchange's rule filing.
The Exchange proposes to delete the defined terms “broker” in Article I, paragraph (d), and “dealer” in Article I, paragraph (j) since neither term is referenced again in the Current Bylaws.
The Exchange proposes to amend the reference to the “Holdings Operating Agreement” in Article I, paragraph (u) (proposed to be re-numbered as paragraph (s)), to notify Members that the Fifth Amended and Restated Limited Liability Company Operating Agreement of Direct Edge Holdings LLC, that was revised on June 12, 2010, is currently in effect.
In Article I, paragraph (v) (proposed to be re-numbered as paragraph (t)), the Exchange proposes to replace the reference to the “EDGA Exchange, Inc.” with “EDGX Exchange, Inc.” to correct a typographical error.
The Exchange proposes to delete dated references to time periods and events that have expired since the proposal of the New Bylaws. Specifically, the Exchange proposes to delete references to the Operational Date in Article I, paragraph (y) and Article XI, Section 1 because the Commission granted the Exchange's registration as a national stock exchange on March 12, 2010.
Similarly, the Exchange proposes to delete provisions regarding the initial Board in Article III, Section 2(a), and the initial Nominating and Governance Committee and the initial Exchange Member Nominating Committee in Article VI, Section 1, since these appointments have already occurred. Similarly, the Exchange proposes deleting Exhibits A and B in the Current Bylaws as this information is obsolete. The Exchange proposes to omit Exhibits A and B in the New Bylaws because the Exchange updates this information through the Commission's Form 1 amendment (Exhibits C and J),
The Exchange proposes to correct a typographical error in Article I, paragraph (cc) (proposed to be re-numbered as paragraph (z)), by referencing “an” Exchange in the New Bylaws.
The Exchange proposes to correct a typographical error by deleting “and Governance” in Article III, Section 6(b) when identifying the Exchange Member Nominating Committee.
The Exchange proposes to insert “of” and delete “or” in Article IX, Section 3(a) to correct a typographical error. Therefore, the New Bylaws will state, “* * * the trading in, or operation of, the national securities exchange operated by the Company or any other organized securities markets that may be operated by the Company, the operation of any automated system owned or operated by the Company, and the participation in any such system of any or all Persons or the trading therein of any or all securities * * *” (
In Article XI, Section 9 (proposed to be re-numbered as Section 8), the Exchange proposes to clarify that “PDF or similar transmission,” where the
The Exchange believes that its proposal is consistent with the requirements of Section 6(b)(1) of the Act,
Specifically, the proposed amendments to certain provisions will conform the Current Bylaws with the Exchange's current corporate governance practices. In addition, the Exchange's proposed amendments address other non-substantive revisions to reflect changes since the Commission granted the Exchange's registration as a national securities exchange in March 2010.
In addition, these proposed amendments will improve efficiency and coordination among the Board and its Committee's by revising the Current Bylaws to clearly delineate each Committee's responsibilities. The proposed amendments will also benefit the Exchange and its Members because the New Bylaws will reflect the current governance structure, including the responsibilities of its officers thereby increasing the transparency of this process.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
The Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing.
The proposed amendments to certain provisions of the Current Bylaws are designed to conform with the Exchange's current corporate governance practices. In addition, the Exchange's proposed amendments address other non-substantive revisions to reflect changes since the Commission granted the Exchange's registration as a national securities exchange in March 2010.
EDGA further requests that the Commission waive the 30-day operative delay period after which a proposed rule change under Rule 19b–4(f)(6) becomes operative. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. It will enable the Exchange to immediately adopt the New Bylaws which should provide an enhanced, more transparent governance structure for the Exchange and its Members. The Commission designates the proposed rule change as operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 5, 2012, the Municipal Securities Rulemaking Board (“MSRB”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on this proposed rule change. In particular, an extension of time will ensure the Commission has sufficient time to consider and take action on the MSRB's proposal in light of, among other things, the comment letters received on the proposal, and the MSRB's response to those comment letters.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Fees Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of
The Exchange proposes to amend its Fees Schedule's Volume Incentive Program (the “Program”), which was implemented on January 1, 2012.
Under the current top tier of the Program, a TPH trading more than 375,000 CPD gets a $0.20 per contract rebate for all CPD traded above 375,000. While the Program is intended to attract greater customer volume, which benefits all market participants, the potential for an industry-wide volume surge could mean CBOE's average daily volume (ADV) also increases, commensurate with the industry, to a level unexpected during the design of the Program. As such, the Program's ADV thresholds would no longer reflect actual conditions. The lack of a CPD ceiling means that the Exchange could potentially be giving back a $0.20 per contract rebate on an extremely high, unlimited amount of contracts. The Program is intended to attract greater customer volume, which benefits all market participants, but it is not economically feasible to be providing an unlimited number of $0.20 rebates (the Exchange needs to retain much of the fees collected to maintain its administrative and regulatory operations). As such, the Exchange proposes to cap the $0.20 per contract rebate tier at 650,000 CPD. For all CPD traded above 650,000, the Exchange will continue offering a rebate, but that rebate will be reduced to $0.05 per contract. The addition of this new tier would ensure that the economic balances in the program would remain in place in the event of an unexpected volume surge.
This change is to take effect May 1, 2012.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Department of State's Advisory Committee on International Communications and Information Policy (ACICIP) will hold a public meeting on June 14, 2012 from 1:30 p.m. to 4:30 p.m. in Room 647 of Annex Building 44 of the U.S. Department of State. The State Annex 44 Building is located at 301 Fourth Street SW., Washington, DC 20547.
The committee provides a formal channel for regular consultation and coordination on major economic, social and legal issues and problems in international communications and information policy, especially as these issues and problems involve users of information and communications services, providers of such services, technology research and development, foreign industrial and regulatory policy, the activities of international organizations with regard to communications and information, and developing country issues.
The meeting will be led by ACICIP Chair Mr. Thomas Wheeler of Core Capital Partners and Ambassador Philip L. Verveer, U.S. Coordinator for International Communications and Information Policy. The meeting's agenda will include discussions pertaining to various upcoming international telecommunications meetings and conferences, as well as bilateral and multilateral meetings that have taken place recently. In addition, the Committee will discuss key issues of importance to U.S. communications policy interests, including: recent private sector advisory efforts focused on the information and communications technology (ICT) aspects of international disaster response; recent public-private efforts to provide training to international communications professionals and regulators from the developing world; and human rights and economic issues related to the Internet.
Members of the public may submit suggestions and comments to the ACICIP. Comments concerning topics to be addressed in the agenda should be received by the ACICIP Executive Secretary (contact information below) at least ten working days prior to the date of the meeting. All comments must be submitted in written form and should not exceed one page. Resource limitations preclude acknowledging or replying to submissions.
While the meeting is open to the public, admittance to the building is only by means of a pre-clearance. For placement on the pre-clearance list, please submit the following information no later than 5 p.m. on Wednesday, June 6, 2012. (Please note that this information is not retained by the ACICIP Executive Secretary and must therefore be re-submitted for each ACICIP meeting):
Send the above information to Joseph Burton by fax (202) 647–7407 or email
Please note that registrations will be accepted to the capacity of the meeting room.
All visitors for this meeting must use the main entrance and show a valid ID to gain admittance. Non-U.S. Government attendees must be escorted by Department of State personnel at all times when in the building.
For further information, please contact Joseph Burton, Executive Secretary of the Committee, at (202) 647–5231 or
General information about ACICIP and the mission of International Communications and Information Policy is available at:
Department of Transportation.
Notice.
The Department of Transportation is soliciting proposals from communities or consortia of communities interested in receiving a grant under the Small Community Air Service Development Program. The full text of the Department's order is attached to this document. There are two mandatory requirements for filing of applications, both of which must be completed for a community's application to be deemed timely and considered by the Department. The first requirement is the submission of the community's proposal, as described below; the second requirement is the filing of SF424 through
Grant Proposals as well as the SF424 should be submitted no later than June 11, 2012.
Interested parties can submit applications and the SF424 electronically through
Aloha Ley, Office of Aviation Analysis, 1200 New Jersey Ave. SE., W86–310, Washington, DC 20590, (202) 366–2347.
By this order, the Department invites proposals from communities and/or consortia of communities interested in obtaining a federal grant under the Small Community Air Service Development Program (Small Community Program or SCASDP) to address air service and airfare issues in their communities. Applications of no more than 25 pages each (one-sided only, excluding the completed SF424, cover sheet, Summary Information schedule, and any letters from the community showing support for the application), including all required information, must be submitted to
This order is organized into the following sections:
The Small Community Program was established by the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (Pub. L. 106–181) and reauthorized by the Vision 100–Century of Aviation Reauthorization Act (Pub. L. 108–176). The program is designed to provide financial assistance to small communities to help them enhance their air service. The Department provides this assistance in the form of monetary grants that are disbursed on a reimbursable basis. Authorization for this program is codified at 49 U.S.C. 41743.
The Small Community Program is authorized to receive appropriations under 49 U.S.C. 41743(e)(2), as amended. Appropriations are provided for this program for award in FY 2012 pursuant to the FAA Modernization and Reform Act of 2012 (Pub. L. 112–95). The Department has up to $14 million available for FY 2012 grant awards to carry out this program. There is no limit on the amount of individual awards, and the amounts awarded will vary depending upon the features and merits of the proposals selected. In past years, the Department's individual grant sizes have ranged from $20,000 to nearly $1.6 million.
Eligible applicants are small communities that meet the following statutory criteria (49 U.S.C. 41743):
1. As of calendar year 1997, the airport serving the community was not larger than a small hub airport, and it has insufficient air carrier service or unreasonably high air fares; and
2. The airport serving the community presents characteristics, such as geographic diversity or unique circumstances, that demonstrate the need for, and feasibility of, grant assistance from the Small Community Program.
No more than 4 communities or consortia of communities, or a combination thereof, from the same state may be selected to participate in the program in any fiscal year. No more than 40 communities or consortia of communities, or a combination thereof, may be selected to participate in the program in each year for which the funds are appropriated.
The Department is authorized to award grants under 49 U.S.C. 41743 to communities that seek to provide assistance to:
• An air carrier to subsidize service to and from an underserved airport for a period not to exceed 3 years;
• An underserved airport to obtain service to and from the underserved airport; and/or
• An underserved airport to implement such other measures as the Secretary, in consultation with such airport, considers appropriate to improve air service both in terms of the cost of such service to consumers and the availability of such service, including improving air service through marketing and promotion of air service and enhanced utilization of airport facilities.
Applicants also should keep in mind the following statutory restrictions on eligible projects:
• An applicant may not receive an additional grant to support the same project from a previous grant (
• An applicant may not receive an additional grant, prior to the completion of its previous grant (
SCASDP grants will be awarded based on the selection criteria as outlined below. There are two categories of selection criteria: Priority Selection Criteria and Secondary Selection Criteria. Applications that meet one or more of the priority selection criteria will be viewed more favorably than those that do not meet any priority selection criteria.
The law directs the Department to give priority consideration to those communities or consortia where the following criteria are met:
•
•
•
•
•
•
1.
• The extent to which the applicant's proposed solution(s) to solving the problem(s) is new or innovative, including whether the proposed project utilizes or encourages intermodal or regional solutions to connect passengers to the community's air service (i.e., cost-effective inter/intra city passenger bus service, marketing of intermodal surface transportation options also available to air travelers, or projects that have a positive impact on travel and tourism); whether the proposed project, if successfully implemented, could serve as a working model for other communities; and
• Whether the proposed project clearly addresses the applicant's stated problems.
2.
• Whether the proposed project has broad community support; and
• The community's demonstrated commitment to and participation in the proposed project.
3.
• The geographic location of each applicant, including the community's proximity to larger centers of air service and low-fare service alternatives;
• The population and business activity, as well as the relative size of each community; and
• Whether the community's proximity to an existing or prior grant recipient could adversely affect either its proposal or the project undertaken by the other recipient.
4.
• The community's existing level of air service and whether that service has been increasing or decreasing;
• Whether the applicant has a plan to provide any necessary continued financial support for the proposed project after the requested grant award expires;
• The grant amount requested compared with total funds available for all communities;
• The proposed federal grant amount requested compared with the local share offered;
• Any letters of intent from airline planning departments or intermodal
• Whether the applicant has plans to continue with the proposed project if it is not self-sustaining after the grant award expires; and
• Equitable and geographic distribution of available funds.
The Department will first review each application to determine whether it has satisfied the following eligibility requirements:
1. The applicant is an Eligible Applicant;
2. The application is for an Eligible Project (including compliance with the Same Project Limitation); and
3. The application is complete (including submission of a completed SF424 and all of the information listed in Contents of Application, in Section IV below).
To the extent that the Department determines that an application does not satisfy these eligibility requirements, the Department will deem that application ineligible and will not consider it further.
The Department will then review all eligible applications based on the selection criteria outlined above in Section II. Applications that meet one or more of the priority selection criteria will be viewed more favorably than those that do not meet any priority selection criteria.
Grant awards will be made as promptly as possible so that selected communities can complete the grant agreement process and implement their plans. Given the competitive nature of the grant process, the Department will not meet with applicants regarding their applications. All non-confidential portions of each application, all correspondence and ex-parte communications, and all orders will be posted in the above-captioned docket on
The Department will announce its grant selections in a Selection Order that will be posted in the above-captioned docket, served on all applicants and all parties served with this Solicitation Order, and posted on the Department's SCASDP Web site at
• Determine eligibility;
• Register with
• Submit an Application for Federal Domestic Assistance (SF424);
• Submit a cover sheet including all required information (
• Submit a completed “Summary Information” schedule (
• Submit a detailed application of
• Attach any letters from the community showing support for the application to the proposal, which should be addressed to Aloha Ley, Associate Director, Small Community Program; and
• Provide separate submission of confidential material, if requested. (
Each application must be no longer than 25 one-sided pages (excluding
An application will not be complete and will be deemed ineligible for a grant award until and unless all required materials, including SF424, have been submitted through
•
•
✓ For applications involving new or improved service, explain how the service will become self-sufficient.
✓ Fully and clearly outline the goals and objectives of the project. When an application is selected, these goals and objectives will be incorporated into the grant agreement and define its basic project scope. Once a grant agreement is signed, if an amendment is sought to allow for different activities or a different approach, the Department will consider whether the amendment sought is consistent with the project scope as set forth in the grant agreement. Amendments that would alter the scope will not be permitted.
✓ Include alternative or back-up strategies for achieving their desired goals and objectives. These strategies will be incorporated into the grant agreement.
•
•
•
As part of the Small Community Program, the Department may also designate one grant recipient as an Air Service Development Zone. The purpose of the designation is to provide communities interested in attracting business to the area surrounding the airport and/or developing land-use options for the area to work with the Department on means to achieve those goals. The Department will assist the designated community in establishing contacts with and obtaining advice and assistance from appropriate government agencies, including the Department of Commerce and other offices within the Department of Transportation, and in identifying other pertinent resources that may aid the community in its efforts to attract businesses and to formulate land-use options. However, the community receiving this designation will be responsible for developing, implementing, and managing activities related to the air service development zone initiative. Only communities that are interested in these objectives and have a plan to accomplish them should apply for this designation. There are no additional funds associated with this designation, and applying for this designation will provide no special benefit or priority to a community applying for a SCASDP grant.
Grant applicants interested in selection for the Air Service Development Zone designation must include in their applications a separate section, titled,
For further information concerning this notice please contact Aloha Ley at
This order is issued under authority delegated in 49 CFR 1.56a(f).
1. Applications for funding under the Small Community Air Service Development Program should be submitted via
2. This order will be published in the
By:
Applications must be submitted through
In order to apply for SCASDP funding and to apply for funding through
1. Acquire a DUNS Number. A DUNS number is required for
2. Acquire or Renew Registration with the Central Contractor Registration (CCR) Database. All applicants for federal financial assistance maintain current registrations in the Central Contractor Registration (CCR) database. An applicant must be registered in the CCR to successfully register in
3. Acquire an Authorized Organization Representative (AOR) and a
4. Acquire Authorization for your AOR from the E-Business Point of Contact (E-Biz POC). The E-Biz POC at your organization must log in to
5. Search for the Funding Opportunity on
6. Submit an Application Addressing All of the Requirements Outlined in this Funding Availability Announcement. Within 24–48 hours after submitting your electronic application, you should receive an email validation message from
When uploading attachments please use generally accepted formats such as .pdf, .doc, and .xls. While you may imbed picture files such as .jpg, .gif, .bmp, in your files, please do not save and submit the attachment in these formats. Additionally, the following formats will not be accepted: .com, .bat, .exe, .vbs, .cfg, .dat, .db, .dbf, .dll, .ini, .log, .ora, .sys, and .zip.
If you experience unforeseen
The cover page for all applications should bear the title “Application Under the Small Community Air Service Development Program, Docket DOT–OST–2012–0069” and should include:
(1) The name of the community or consortium of communities applying for the grant;
(2) The legal sponsor and its Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number, including + 4; Employee Identification Number (EIN) or Tax ID; and
(3) The 2-digit Congressional district code applicable to the sponsoring organization and, if a consortium, to each participating community.
Applicants will be able to provide certain confidential business information relevant to their proposals on a confidential basis. Under the Department's Freedom of Information Act regulations (49 CFR 7.17), such information is limited to commercial or financial information that, if disclosed, would either likely cause substantial harm to the competitive position of a business or enterprise or make it more difficult for the Federal Government to obtain similar information in the future.
Applicants seeking confidential treatment of a portion of their applications must segregate the confidential material in a sealed envelope marked “Confidential Submission of X (the applicant) in Docket DOT–OST–2012–0069,” and include with that material a request in the form of a motion seeking confidential treatment of the material under 14 CFR 302.12 (Rule 12) of the Department's regulations. The applicant should submit an original and two copies of its motion and an original and two copies of the confidential material in the sealed envelope.
The confidential material should
A template for the confidential motion can be found at
Applicants will be able to provide certain confidential business information relevant to their proposals on a confidential basis. Under the Department's Freedom of Information Act regulations (49 CFR 7.17), such information is limited to commercial or financial information that, if disclosed, would either likely cause substantial harm to the competitive position of a business or enterprise or make it more difficult for the Federal Government to obtain similar information in the future.
Applicants seeking confidential treatment of a portion of their applications must segregate the confidential material in a sealed envelope marked “Confidential Submission of X (the applicant) in Docket DOT–OST–2011–0119,” and include with that material a request in the form of a motion seeking confidential treatment of the material under 14 CFR 302.12 (Rule 12) of the Department's regulations. The applicant should submit an original and two copies of its motion and an original and two copies of the confidential material in the sealed envelope.
The confidential material should
A template for the confidential motion can be found at
Federal Aviation Administration, DOT.
Notice, Request for Public Comment.
The Federal Aviation Administration is requesting public comment on the Plattsburgh International Airport (PBG), Plattsburgh, New York, Notice of Proposed Release from Aeronautical Use, and from the Airport, of approximately 1.73 +/− acres of airport property, to allow for non-aeronautical development.
The parcel is located on the southeast corner of the Plattsburgh International Airport. The Tract (Tract I–901) is currently part of Plattsburgh International Airport and is currently vacant. The requested release is for the purpose of permitting the airport owner (Clinton County) to sell and convey title of 1.73 +/− acres for expansion of a single family residence owned by Mr. Brian K. and Karen L. Dumesnil.
Documents reflecting the Sponsor's request are available, by appointment only, for inspection at the Office of the Clinton County Legislature and the FAA New York Airport District Office.
Comments must be received by June 14, 2012.
Comments on this application may be mailed or delivered to the FAA at the following address: Steven M. Urlass, Manager, FAA New York Airports District Office, 600 Old Country Road, Suite 446, Garden City, New York 11530. In addition, a copy of any comments submitted to the FAA must be mailed or delivered to Mr. James R. Langley, Chairman, Clinton County Legislature, at the following address: Clinton County Government Center, 137 Margaret Street, Plattsburgh, New York 12901.
Steven M. Urlass, Manager, New York Airports District Office, 600 Old Country Road, Suite 446, Garden City, New York 11530; telephone (516) 227–3803; FAX (516) 227–3813; email
Section 125 of the Wendell H. Ford Aviation Investment and Reform Act for the 1st Century (AIR21) requires the FAA to provide an opportunity for public notice and comment before the Secretary may waive a Sponsor's Federal obligation to use certain airport land for aeronautical use.
Federal Aviation Administration (FAA), DOT.
Notice of cancellation of Technical Standard Order (TSO)–C91a, Emergency Locator Transmitter (ELT) Equipment.
This notice announces the FAA's cancellation of TSO–C91a, Emergency Locator Transmitter (ELT) Equipment. The effect of the cancelled TSO will result in no new TSO–C91a design or production approvals being issued. Applicants wanting to apply for TSO Authorization (TSOA) for new Emergency Locator Transmitters (ELTs) after December 1, 2012, must seek authorization for TSO–C126a, 406 MHz Emergency Locator Transmitter (ELT), or subsequent.
Mr. Albert Sayadian, AIR–130, Federal Aviation Administration, 470 L'Enfant Plaza, Suite 4102, Washington, DC 20024. Telephone (202) 385–4652, fax (202) 385–4651, email to:
On February 1, 2009 Cospas-Sarsat satellite system stopped processing signals from 121.5 MHz ELTs and now only processes signals from 406 MHz ELTs. The decision to discontinue processing of the 121.5 MHz signal was made by the International Cospas-Sarsat program with guidance from the United Nations. This was made due to the problems within the 121.5 MHz frequency band which inundated SAR authorities with reports of poor accuracy and numerous false alerts, thus impacting the effectiveness of lifesaving services.
The 406 MHz ELT technology is an advance over the older 121.5 MHz ELT technology. TSO–C126a ELT equipment is more accurate and reliable than the 121.5 MHz ELT equipment. Examples of these improvements are: (1) Global satellite coverage; (2) a unique beacon identification which is required to be registered so that if an alert is activated the rescue coordination center can confirm whether the distress is real, who they are looking for, and where the search should begin; (3) 406 MHz ELTs can be received by geostationary satellites which are always visible and provide instantaneous alerting, and (4) increased position accuracy which reduces the search area to less than two nautical miles in radius. Additionally, 406 MHz ELTs can optionally include a GPS position which can potentially reduce the search area to within 100 meters of the accident site.
The performance and benefits of TSO–C126a equipment surpasses TSO–C91a equipment. The 406 MHz technology is mature and prevalent in the ELT market today. New TSO authorizations for ELTs should be accomplished to TSO–C126a, or subsequent, thus the FAA is canceling TSO–C91a.
On January 11, 2012, a notice was published in the
The FAA received comments from four organizations in response to the
The second commenter, Astronics DME Corporation, provided two comments. First, Astronics commented that cancellation of TSO–C91a eliminates procedural access to the TSO requirements of 14 CFR 21, Subpart O when a major change to the TSO's article is required. Under 14 CFR Part 21, a major change requires the TSO authorization holder to apply for a new TSO authorization utilizing the latest revision of the TSO. Major changes to TSO–C91a articles will be accepted when applied for utilizing the latest revision of TSO–C126.
Astronics also commented that elimination of satellite detection on the 121.5 MHz frequency is not sufficient justification for TSO–C91a cancellation. The FAA acknowledges that the 121.5 MHz ELT signal is still monitored in many cases and provides limited search and rescue functionality. However, TSO–C126a is a more mature standard, and the 406 MHz signal provides satellite detection, which enhances search and rescue efforts. Because the 121.5 MHz ELT continues to provide this basic functionality, the TSO–C91a ELTs can continue to be used to meet 14 CFR § 91.207, however because a more mature standard is available, it is appropriate to require new ELTs designs to meet the standards of TSO–C126a, or subsequent.
Astronics also commented that the TSO–C126a requirement to include a 121.5 MHz homing beacon in the 406 MHz ELT should be modified to allow manufacturers to include a GPS locator instead of the 121.5 homing beacon. The FAA acknowledges the benefits of including GPS position with the 406 MHz ELT transmission, and encourages this optional capability. However, this action is canceling TSO–C91a, and is not modifying TSO–C126a.
The General Aviation Manufacturers Association (GAMA) and the Aircraft Owners and Pilots Association (AOPA) both provided comments that they do not oppose the TSO–C91a cancelation, but that they would oppose any future retrofit requirement. Both organizations requested the FAA reiterate that cancelation of TSO–C91a does not impact the continued production of articles with an existing TSO authorization nor impact the sale, installation, or the use of 121.5 MHz ELTs to comply with 14 CFR 91.207.
The General Aviation Manufacturers Association (GAMA) also conducted a survey of the manufacturers of general aviation aircraft and determined that all current production airplanes include dual or tri-band ELTs. Additionally, these dual or tri-band ELTs have been installed in new production airplanes for over the past 5-years.
The FAA reiterates in this final notice that cancelation of TSO–C91a does not affect production under an existing TSO authorization. Articles produced under an existing TSO–C91a authorization can still be installed according to existing airworthiness approvals and applications for new installation approvals will still be processed. This
GAMA also commented that the FAA should reconsider the ELT operational mandate as newer technology, such as ADS–B, becomes more commonplace. The FAA has determined that the ADS–B system currently cannot replace the ELT function. The ADS–B system is not required to be crashworthy and, thus, may not be operable or able to transmit following an aircraft accident. Additionally, current search-and-rescue technology is not compatible with ADS–B operations because ELTs broadcast on 121.5 or 406 MHz (not 1090 or 978 MHz). The FAA recognizes the value of a ground application that could allow for timely and accurate flight tracking of downed aircraft and is evaluating this capability separate from this action.
TSO–C91a is canceled effective December 1, 2012. Manufacturers applying for new ELT technical standard order authorizations after December 1, 2012 must use TSO–C126a, or a subsequent ELT technical standard order.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on a new one-time Information Collection (IC) on Excess Flow Valves (EFVs). PHMSA will request approval for this new information collection from the Office and Management and Budget (OMB). The collection involves a census of gas operators to gather data on operators' experiences, practices, benefits, and costs associated with the use of EFVs. This data is necessary to conduct a cost-benefit analysis of requiring an expansion in the use of EFVs.
Interested persons are invited to submit comments on or before July 16, 2012.
Comments may be submitted in the following ways:
Cameron Satterthwaite by telephone at 202–366–1319, by fax at 202–366–4566, or by mail at U.S. DOT, PHMSA, 1200 New Jersey Avenue SE., PHP–30, Washington, DC 20590–0001.
Section 1320.8(d), Title 5, Code of Federal Regulations requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies a new one-time information collection request that PHMSA will be submitting to OMB for approval. The information collection will be titled: “Information Collection on Excess Flow Valves.”
In 1996, PHMSA's predecessor agency, the Research and Special Programs Administration (RSPA), issued a final rule adopting a performance standard for the use of excess flow valves (EFVs) in single-family-residence service lines (61 FR 31449; codified at 49 CFR 192.381). That standard only applied to the EFVs voluntarily installed on service lines that operated at pressures at or above 10 pounds per square inch gas (psig) on a continuous basis throughout the year.
In 2001, the National Transportation Safety Board (NTSB) issued Safety Recommendation P–01–2 to RSPA. This recommendation, which was based on the results of NTSB's investigation into a 1998 natural pipeline accident that occurred in South Riding, Virginia, advised RSPA to require the installation of EFVs in all new and renewed gas service lines, regardless of a customer's classification, when operating conditions are compatible with readily available valves.
On December 29, 2006, Congress enacted the Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006 (Pub. L. 109–468). Section 9 of the PIPES Act (codified at 49 U.S.C. 60109(e)) stated that “[n]ot later than December 31, 2007, the Secretary [of Transportation] shall prescribe minimum standards for integrity management programs for distribution pipelines.” Section 9 further stated that those “minimum standards shall include a requirement for an operator of a natural gas distribution system to install an excess flow valve on each single family residence service line” under certain prescribed conditions.
In 2009, PHMSA issued the Distribution Integrity Management Program (DIMP) final rule (74 FR 63906). The DIMP final rule required that operators install EFVs on all new or
In 2011, PHMSA also published an Advance Notice of Proposed Rulemaking (ANPRM) (November 25, 2011; 76 FR 72666) seeking public comment on several issues relating to the expanded use of EFVs in gas distribution systems. During the comment period, President Obama signed the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011. Section 22 of the Act (codified in Section 60109(e)(3)(B)) states that “[n]ot later than 2 years after the date of enactment of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, and after issuing a final report on the evaluation of the National Transportation Safety Board's recommendation on excess flow valves in applications other than service lines serving one single family residence, the Secretary, if appropriate, shall by regulation require the use of excess flow valves, or equivalent technology, where economically, technically, and operationally feasible on new or entirely replaced distribution branch services, multifamily facilities, and small commercial facilities.”
To comply with Congress's recent mandate and address NTSB's prior safety recommendation, PHMSA needs comprehensive data on the operations, costs, and benefits of EFVs, as well as information on how those operations, costs, and benefits may vary for other customer classification service lines (in addition to single family residence service lines). This information collection will provide the data necessary to conduct a cost-benefit analysis of EFVs for different customer classification service lines.
PHMSA is proposing to use an online census for this information collection. A copy of the census will be placed in the docket for comment. The following information is provided for this information collection: (1) Title of the information collection; (2) OMB control number; (3) Type of request; (4) Abstract of the information collection activity; (5) Description of affected public; (6) Estimate of total annual reporting and recordkeeping burden; and (7) Frequency of collection. PHMSA will request a three-year term of approval for this information collection activity.
PHMSA requests comments on the following information collection:
(a) The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury 's Office of Foreign Assets Control (“OFAC”) is publishing the names of four individuals whose property and interests in property have been blocked pursuant to the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”) (21 U.S.C. 1901–1908, 8 U.S.C. 1182).
The designation by the Director of OFAC of the four individuals identified in this notice pursuant to section 805(b) of the Kingpin Act is effective on May 8, 2012.
Assistant Director, Sanctions Compliance & Evaluation, Office of Foreign Assets Control, U.S. Department of the Treasury, Washington, DC 20220, Tel: (202) 622–2490.
This document and additional information concerning OFAC are available on OFAC's Web site at
The Kingpin Act became law on December 3, 1999. The Kingpin Act establishes a program targeting the activities of significant foreign narcotics traffickers and their organizations on a worldwide basis. It provides a statutory framework for the imposition of sanctions against significant foreign narcotics traffickers and their organizations on a worldwide basis, with the objective of denying their businesses and agents access to the U.S. financial system and the benefits of trade and transactions involving U.S. companies and individuals.
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Secretary of the Treasury, in consultation with the Attorney General, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security may designate and block the property and interests in property, subject to U.S. jurisdiction, of persons who are found to be: (1) Materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; or (3) playing a significant
On May 8, 2012 the Director of OFAC designated the following four individuals whose property and interests in property are blocked pursuant to section 805(b) of the Kingpin Act.
Department of Veterans Affairs.
Notice.
Notice is hereby given that the Department of Veterans Affairs (VA), Office of Research and Development, intends to grant to algorithmRx, LLC, 7400 Beaufont Springs Drive—Suite 300, North Chesterfield, Virginia 23225, an exclusive license to practice the following: U.S. Patent Application Serial No. 12/928,894 (Methods for Predicting the Response to Statins) filed December 21, 2010, and published on October 6, 2011, under Publication No. US–2011–0245283.
Comments must be received by VA on or before May 30, 2012.
Written comments may be submitted through
Dr. Lee A. Sylvers, Technology Transfer Program, Office of Research and Development (10P9TT), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 443–5646. This is not a toll free number. Copies of the published patent applications may be obtained from the U.S. Patent and Trademark Office at
The interests of the Federal Government and the public will be best served if this license is awarded to algorithmRx, LLC because the invention can lead to a more efficacious use of statins. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within 15 days from the date of this published Notice, VA's Office of Research and Development receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and announcement of public meeting.
The U.S. Department of Energy (DOE) proposes to establish test procedures for residential products that use electricity for purposes of circulating air through duct work, hereafter referred to as “furnace fans.” Specifically, this notice proposes to establish a test method for measuring the airflow performance and electrical consumption of these products. Concurrently, DOE is undertaking an energy conservation standards rulemaking to address the electrical energy used by these products for circulating air. Once these energy conservation standards are promulgated, the adopted test procedures will be used to determine compliance with the standards. DOE is also announcing a public meeting to discuss and receive comments on issues presented in this test procedure rulemaking.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E–089 1000 Independence Avenue SW., Washington, DC 20585. To attend, please notify Ms. Brenda Edwards at (202) 586–2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the meeting should advise DOE as soon as possible by contacting Ms. Edwards at the phone number above to initiate the necessary procedures. Please also note that any person wishing to bring a laptop computer into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing laptops, or allow an extra 45 minutes. Persons may also attend the public meeting via webinar. For more information, refer to section V, “Public Participation,” of this NOPR.
Any comments submitted must identify the NOPR on Test Procedures for Residential Furnace Fans, and provide docket number EERE–2010–BT–TP–0010 and/or regulatory information number (RIN) number 1904–AC21. Comments may be submitted using any of the following methods:
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4.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).
A link to the docket web page can be found at:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586–2945 or by email:
For information on how to submit or review public comments, contact Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–2945. Email:
Title III, Part B
Under the Act, this program consists essentially of four parts: (1) Testing; (2) labeling; (3) Federal energy conservation standards; and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA and for making representations about the efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s)). Similarly, DOE must use these test procedures in any enforcement action to determine whether covered products comply with these energy conservation standards. (42 U.S.C. 6295(s)).
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides in relevant part that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)). In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)). Finally, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of a covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1)). If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2)).
On December 19, 2007, the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110–140, was enacted. The EISA 2007 amendments to EPCA, in relevant part, require DOE to amend the test procedures for all covered products to include measures of standby mode and off mode energy consumption.
Pursuant to EPCA under 42 U.S.C. 6295(f)(4)(D), DOE is currently conducting a rulemaking to consider new energy conservation standards for furnace fans. EPCA directs DOE to establish test procedures in conjunction with new or amended energy conservation standards, including furnace fans. (42 U.S.C. 6295(o)(3)(A). To fulfill these requirements, DOE is simultaneously initiating a test procedure rulemaking for furnace fans. DOE intends for the test procedure to include: (1) An annual electrical energy consumption metric normalized by total annual operating hours and airflow capacity in the maximum airflow-control setting; and (2) the methods necessary to measure the performance of the covered products. The metric will also account for the electrical energy consumption in standby mode and off mode for furnace fans used in heating ventilation and air-conditioning (HVAC) products for which consumption in those modes is not already fully accounted for in other DOE rulemakings. Manufacturers will be required to use these methods and this metric for the purposes of verifying compliance with the new energy conservation standards when they take effect.
DOE does not currently have a test procedure for furnace fans. On June 3, 2010, DOE published a Notice of Public Meeting and Availability of the Framework Document to initiate the energy conservation standard rulemaking for furnace fans. 75 FR 31323. DOE posted the furnace fans
In this notice of proposed rulemaking, DOE proposes to establish a test method for measuring the electrical energy consumption of furnace fans, as well as airflow performance (which has a direct effect on efficiency), and the standby mode and off mode energy consumption of such fans. DOE intends for the proposed test procedure to be broadly applicable to electrically-powered devices used in residential central HVAC systems for the purposes of circulating air through duct work (
Pursuant to EPCA, DOE must establish these test procedures in order to allow for the development of energy conservation standards that will address the electrical consumption of these products. (42 U.S.C. 6295(o)(3)(A)) As further required by EPCA, the NOPR also includes proposed methods for measuring the standby mode and off mode electrical energy consumption for furnace fans used in HVAC products, to the extent that electrical energy consumption in these modes is not already covered (
To rate the electrical efficiency of furnace fans (active mode energy consumption), DOE proposes to incorporate by reference into the test procedure specific provisions from American National Standards Institute (ANSI)/Air Movement and Control Association International, Inc. (AMCA) 210–07 | ANSI/American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE) 51–07,
DOE proposes to use as the furnace fan efficiency rating metric the “estimated annual electrical energy consumption” normalized by: (a) The total number of annual operating hours, and (b) the airflow in the maximum airflow-control setting in standard cubic feet per minute. Standard cubic feet per minute (scfm) is a measure of airflow corrected for predetermined standard air conditions. The estimated annual electrical energy consumption, as proposed, is a weighted average of the input power (in Watts) measured separately for multiple airflow-control settings at different external static pressures (ESPs). These ESPs are determined by a reference system that represents national average duct work system characteristics. The airflow-control settings proposed to be rated correspond to operation in cooling mode, heating mode, and constant-circulation mode. Table II.1 illustrates the airflow-control settings that will be rated for various product types.
For products with single-stage heating, the three proposed rating airflow-control settings are the maximum setting, the default heating setting, and the default constant-circulation setting. For products with multi-stage heating or modulating heating, the proposed rating airflow-control settings are the maximum setting, the default low heating setting, and the default constant-circulation setting. For products that are not designed to be paired with an evaporator coil, hereinafter referred to as “heating-only products,” the proposed rating airflow-control settings are the maximum airflow-control setting (expected to be the default heat airflow-control setting) and the default constant-circulation setting. The lowest default airflow-control setting is used to represent constant circulation if a constant-circulation setting is not specified. DOE proposes to weight the Watt measurements using designated annual operating hours for each function (
DOE also proposes to establish methods for measuring the standby mode and off mode electrical energy consumption of furnace fans for which consumption in these modes is not already covered by existing standards or currently proposed amendments to those standards (
Under 42 U.S.C. 6295(f)(4)(D), EPCA directs DOE to consider and prescribe standards for electricity used for purposes of circulating air through duct work. Although the title of this statutory section refers to “furnaces and boilers,” this particular provision was written using notably broader language than the other provisions within the same section. Consequently, in the June 2010 framework document for the energy conservation standards rulemaking, DOE tentatively interpreted this relevant statutory language to allow DOE to cover the electricity used by any electrically-powered device used in residential, central HVAC systems for the purpose of circulating air through duct work. 75 FR 31323 (June 3, 2010).
Ultimately, the scope of applicability of the proposed test procedure will be determined by the scope of coverage of the energy conservation standards rulemaking for furnace fans. Therefore, DOE proposes a scope of applicability for this notice that is broad enough to cover the products currently under consideration for the energy conservation standards rulemaking, including single-phase, electrically-powered devices that circulate air through duct work in HVAC systems with heating input capacities less than 225,000 Btu per hour, cooling capacities less than 65,000 Btu per hour, and airflow capacities less than 3,000 cfm. These specifications are consistent with the DOE definitions for residential “furnace” and “central air conditioner” (10 CFR 430.2), and the airflow typically required to provide these levels of heating and cooling. DOE proposes to exclude from the scope of applicability of the test procedure any non-ducted products, such as whole-house ventilation systems without duct work, CAC condensing unit fans, room fans, and furnace draft inducer fans because these products do not circulate air through duct work. DOE believes this proposed scope of applicability is broad enough to anticipate the scope of coverage of the energy conservation standard.
DOE proposes to incorporate by reference in section 2 of Appendix AA to Subpart B of Part 430, all definitions in section 3.1 of ANSI/AMCA 210–07. DOE also proposes to include in section 2 of Appendix AA to Subpart B of Part 430 the additional and modified definitions listed below:
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In the June 2010 framework document for the furnace fans energy conservation standards rulemaking, DOE requested interested-party comments on the methods specified in the December 2009 draft version of Canadian Standard CSA C823,
Rheem and the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) stated that ANSI/AMCA 210–07 is a well-known and widely-used reference test procedure (Rheem, No. 29 at pp. 4–5; AHRI, No. 20 at pp. 3–4). Rheem recommended that DOE use ANSI/AMCA 210–07 as its reference test procedure (Rheem, No. 29 at pp. 4–5). AHRI proposed basing the standard on ANSI/AHRI Standard 210–240–2008, but conceded that this test method might increase burden because it is different from the way furnaces are currently tested (AHRI, No. 20 at p. 5). Ingersoll Rand suggested that DOE use the methods specified in DOE's existing residential furnace test procedure codified in 10 CFR part 430, subpart B, appendix N, because the test procedures referenced in CSA C823 (
After carefully considering these comments, DOE is proposing to incorporate by reference ANSI/AMCA 210–07. DOE believes that ANSI/AMCA 210–07 is an appropriate reference standard because it is a well-known and widely-used industry standard for measuring fan performance. DOE is aware that manufacturers use ANSI/AMCA 210–07 to generate the airflow performance data tables that they publish in product specification sheets. These tables include measurements of airflow (and sometimes electrical consumption) at various ESPs across a wide range. These tables and comments from interested parties indicate that manufacturers already possess or have access to test facilities suitable for ANSI/AMCA 210–07 testing. DOE also expects that manufacturers are practiced in or at least familiar with the methods necessary to take these measurements. AHRI stated that manufacturers currently perform furnace fan tests according to ANSI/AMCA 210–07 to generate airflow data for intended application of products (AHRI, No. 21 at pp. 3, 4). For these reasons, DOE does not expect that these methods would be overly burdensome to manufacturers. In addition, ANSI/AMCA 210–07 is more suitable for measuring airflow and electrical consumption across a range of ESPs and in multiple airflow-control settings; in contrast, the DOE residential furnace test procedure and ANSI/AHRI 210–240–2008 specify methods for measuring these parameters in a single airflow-control setting per heating stage as long as a minimum ESP has been achieved. The benefits of measuring performance in multiple airflow-control settings is discussed in detail in section III.F.1 While the ESP values specified in the DOE residential furnace test procedure and ANSI/AHRI 210–240–2008 are appropriate for rating furnaces, they are inconsistent with the values determined to be appropriate for rating furnace fan electrical performance, as proposed in this notice. A detailed discussion of the ESP values proposed in this notice compared to the suggested methods is provided in section III.E.
DOE proposes to incorporate by reference most aspects of ANSI/AMCA 210–07, except for specifications related to measuring rotational speed, beam load, torque, and mechanical measurement of input power. Specifically, DOE proposes to incorporate by reference the following provisions from ANSI/AMCA 210–07:
• Definitions, units of measure, and symbols (section 3);
• Instruments and methods of measurement (sections 4.1 through 4.3 and 4.6), excluding those for mechanical measurement of fan input power and motor calibration (section 4.4) and rotational speed (section 4.5);
• Test setup and equipment provisions (section 5) and observation and conduct of test guidelines (section 6), excluding test data to be recorded for rotational speed (N), beam load (F), or torque (T);
• Calculations (sections 7.1 through 7.7 and section 7.9), excluding calculations for fan power input or fan efficiency (sections 7.7 and 7.8); and
• Report and results of test requirements (section 8).
In addition to the methods incorporated by reference from ANSI/AMCA 210–07, DOE proposes to include specification of the range and increments of ESPs at which determinations are to be made. ANSI/AMCA 210–07 defines a “determination” as a complete set of measurements for a particular point of operation for a fan. For this notice, a complete set of measurements at a particular point of operation includes airflow, electrical consumption, and ESP.
DOE also proposes to include provisions for using an electrical meter to measure electrical energy consumption at each determination to replace the mechanical methods specified in section 4.4 of ANSI/AMCA 210–07. The proposed provisions are necessary because measuring electrical energy consumption using electrical power meters is a more widely used method by manufacturers of HVAC products. In addition, the voltage requirements in ANSI/AMCA 210–07 are specified in relation to the results of its specified motor calibration procedure (section 4.4.1.1), which DOE is not proposing to adopt in this notice. The proposed voltage requirements are consistent with those included in the DOE test procedures for residential furnaces and central air conditioners and heat pumps and are, therefore, also widely used by HVAC product manufacturers. DOE proposes to specify the use of an electrical meter with a certified accuracy of ±1 percent of observed readings to measure the electrical input power consumption of the HVAC product in which the furnace fan is incorporated at each determination. In addition, DOE proposes to specify that the electrical power supplied to the HVAC product be maintained within 1 percent of the nameplate voltage of the HVAC product. If a dual voltage is used for nameplate voltage, DOE proposes that the electrical supply be maintained within 1 percent of the higher voltage.
In the June 2010 framework document, DOE requested comment to aid in determining an appropriate metric for rating furnace fan performance. Specifically, DOE identified two possible metrics: (1) the annual electrical energy consumption rating (AECR), as specified in the December 2009 draft version of Canadian Standard Association (CSA) C823,
Several interested parties stated that using an annualized energy consumption rating metric, such as AECR, is inappropriate for rating furnace fan performance. The American Council for an Energy-Efficient Economy (ACEEE) commented that it is not sure that fans can be rated both simply and meaningfully using a single certifiable number, like AECR, because of the diversity of expected furnace fan electricity consumption levels, depending on house size, duct restrictions, local climate, whether the unit is run in full-time “circulate” mode, and myriad other factors. (ACEEE, No. 19 at p. 2) Ingersoll Rand stated that adopting a rule that estimates the annualized energy usage would be confusing and misleading to consumers, as operating hours vary greatly across the country and from house to house. (Ingersoll Rand, No. 25 at p. 1) AHRI commented that an annual electrical energy consumption metric is not appropriate because of variations in climate, usage patterns, and installation. (AHRI, No. 21 at p. 3) Rheem expressed a similar view, that a less complicated, less specific, and less technically detailed energy descriptor would be a more powerful tool to guide HVAC professionals and consumers in the selection of energy-efficient equipment for specific climates, installations, and use patterns (Rheem, No. 29 at p. 1).
Many interested parties stated that cubic feet per minute per watt (cfm/W), or a similar efficiency metric should be used to rate furnace fan performance. The Northeast Energy Efficiency Partnership (NEEP) recommended that the efficiency metric be based on cfm/W or watts per cubic feet per minute (W/cfm). According to NEEP, this approach would avoid making the calculation overly complicated and potentially watered down with conditional assumptions, which contribute to a very difficult and, potentially, misleading metric to use for comparison. (NEEP, No. 16 at p. 3) Ingersoll Rand stated that the use of the single descriptor, cfm/W, provides the most direct way to compare furnace fan performance regardless of geography and how closely the furnace is sized to the house load. (Ingersoll Rand, No. 25 at p. 1) The Northwest Energy Efficiency Alliance (NEEA) recommended use of an air-delivery efficiency metric, such as cfm/W, to avoid the expectedly large standard deviation of actual energy use values around the rating value, which would be misleading for most installations. (NEEA, No. 9 at p. 2) Regal Beloit and the American Gas Association (AGA) also expressed support for the use of a rating metric expressed in cfm/W or W/cfm. (Regal Beloit, No. 32 at p. 3 and AGA, No. 7 at p. 101)
Interested parties also suggested a number of alternative metrics. AHRI and certain manufacturers, including Rheem, Nordyne, and Lennox, suggested that DOE use “e,” a dimensionless descriptor that expresses the electrical consumption of a furnace, including electrical components other than the furnace fan, as a percentage of its total (electrical and fuel) energy consumption. The “e” metric is a function of the average annual auxiliary electrical energy consumption, E
In order to determine an appropriate metric for furnace fan efficiency to propose in this notice, DOE carefully considered the suggestions and other points raised in public comments, and conducted additional research, as explained below. One tentative conclusion that DOE reached is that a furnace fan efficiency metric must capture operation at multiple key operating points. DOE's investigation of furnace fan performance data indicates that input power can drop dramatically as airflow is reduced. In addition, different furnace fans exhibit very different behavior with respect to their range of achievable airflows and the corresponding reduction in power input as airflow is reduced. DOE expects that examination of a furnace fan at a single operating point would not likely provide a full representation of energy use of a furnace fan in a typical installation. Therefore, DOE is proposing a metric that evaluates the furnace fan operation at multiple key operating points, as suggested by ACEEE. DOE proposes that the energy use in these modes is combined into a single metric, however, because DOE cannot set energy conservation standards based on multiple metrics.
Another tentative conclusion which DOE reached was that, consistent with comments received from interested parties, a metric in units of watts per cfm at specified ESPs would provide a useful metric for interested parties to compare and evaluate furnace fan performance. DOE finds that interested parties are familiar with discussing fan efficiency in terms of watts per 1000 cfm, as this is how fan performance is estimated in the alternative rating method for coil-only CAC products. Accordingly, in DOE's proposed metric (discussed below), the average power
Finally, DOE tentatively concluded that it would not be possible for a furnace fan efficiency metric to capture all aspects of field operation. Several interested parties pointed out the dependence of furnace fan operating hours in the field on a wide range of factors such as climate, house size, duct characteristics, etc., as discussed above. However, the field performance of many products is dependent on the range of field installation and operating conditions. For example, the integrated combined energy efficiency ratio (CEER) for room air conditioners is based on active mode operation for 750 hours in outdoor temperature conditions of 95 °F dry bulb temperature and 75 °F wet bulb temperature.
In light of the parameters discussed above, DOE proposes to use a new rating metric called the “fan efficiency rating” (FER). FER is not included in the aforementioned industry standards, but is derived from data collected using the methods specified in ANSI/AMCA 210–07. The proposed FER is the estimated annual electrical consumption normalized by total operating hours and the airflow measured in the maximum airflow-control setting at a specified ESP. The proposed estimate of annual electrical consumption is a weighted average of Watts measured separately for multiple airflow-control settings at different ESPs. These ESPs are determined by a reference system curve, which is developed using a specified airflow-control setting and ESP. This reference system curve is intended to represent typical duct work systems used for circulation of air. DOE determined the reference system criteria specified in this notice through analysis of measured ESP field data. Section III.E discusses in greater detail the reference system concept proposed in this notice.
The airflow-control settings in which determinations are specified to be made depend on the number of heating stages that the HVAC product has and whether the HVAC product is designed to be used for cooling. Two-stage and modulating controls allow HVAC products to meet heating load requirements more precisely. When low heating load conditions exist, a two-stage or modulating HVAC product can operate at a reduced input rate for an extended period of burner on-time to meet the reduced heating load. For products with single-stage heating, the three proposed rating airflow-control settings are the maximum setting, the default heating setting, and the default constant-circulation setting. For products with multi-stage or modulating heating, the proposed rating airflow-control settings are the maximum setting, the default low-heating setting, and the default constant-circulation setting. For heating-only products (
DOE understands that furnace fans typically have three or more airflow-control settings which are designated for specific functions. DOE is also aware that some furnace fans have more than one airflow-control setting designated for heating and/or cooling in multi-stage or modulating products. DOE requests comments on whether rating furnace fans using multiple but fewer than the total number of available airflow-control settings is appropriate, including multi-stage products. DOE expects that furnace fan factory settings typically designate the highest default airflow settings for cooling, median default airflow settings for heating, and the lowest default airflow settings for constant circulation. DOE also requests comments on the proposed assumptions for factory set airflow-control setting designations for specific functions. (See Issue 1 under “Issues on Which DOE Seeks Comment” in section V.E of this NOPR.)
DOE proposes to weight the input power at the operating points of the proposed rating airflow-control settings using estimates of the annual operating hours that the furnace fan spends performing each of the functions typically designated for each airflow-control setting. The proposed average annual operating hours for furnace fans take into account differences in climate and constant-circulation operation. DOE recognizes that furnace fan annual operating hours vary significantly by region, but DOE believes the proposed values provide a reasonable estimate of average national annual operating hours by function. The following paragraphs include a detailed description of the approach and sources used to derive the proposed operating hour values, which are included in Table III.2.
DOE proposes to specify one set of annual operating hours for products with single-stage heating and another for products with multi-stage or modulating heating. This proposed rule specifies use of the default low-heating setting to rate multi-stage or modulating furnaces because DOE expects that these furnaces spend most of their heating operating time in the low-heating mode. In addition, as compared to single-stage furnaces, multi-stage and modulating furnaces also spend more total time operating in heating mode, due to the reduced heat output for the low-heating mode. Consequently, the proposed heating mode hours used to calculate annual energy use in the metric are calculated based on the reduced heat output, as described below. DOE does not propose to account for multi-stage cooling because the presence and capacity of low-stage cooling is dependent on the cooling system with which the furnace fan HVAC products are paired. DOE found in its review of publicly-available product literature that detailed characteristics of the cooling system are not provided in the product literature for furnace fan HVAC products. In addition, multi-stage heating is not necessarily associated with multi-stage cooling capability (
For products with single-stage heating, national average annual heating operating hours are calculated using the following formula:
The inputs to this equation are determined as follows. The ratio of blower on-time to average burner on-time is derived from manufacturer default blower delay settings for non-weatherized gas furnace models found in the 2007 Furnace Database
The average annual heating energy use is derived using the average Energy Information Administration's (EIA) RECS 2005
DOE proposes to account for the differences in operation between single-stage and multi-stage or modulating units in its estimated annual heating operating hours. When heating a residential building, a certain amount of heat is required to reach a desired indoor temperature in that given building. The heat output of the HVAC product installed in that building is the rate at which the product provides that heat. The lower the heating output capacity of the installed HVAC product in that building, the longer that HVAC product must operate to provide the necessary heat to reach a desired temperature rise. For products with multi-stage or modulating heating, DOE is aware that heating operation hours are distributed between two or more heating operating modes that have different output capacities, referred to as “stages.” DOE finds that product literature refers to multi-stage/modulating heating as a comfort feature characterized by long run-times in the low-heat setting, which can account for 90 percent or more of heating operation time. As a result, DOE recognizes that total heating operating hours for multi-stage and modulating furnace fans will likely be higher than for single-stage furnace fans in a given installation, because the HVAC product will be operating at its lower output capacity for a majority of these hours. Therefore, for the purposes of this test procedure, DOE proposes to rate multi-stage and modulating furnace fans using input power in the default low-heating stage only. The increase in heating operating hours, and ultimately the energy consumed for heating, in multi-stage and modulating furnace fans is determined by the ratio of high-output heating capacity to low-output heating capacity. DOE proposes to use the following equation to determine average annual heating operating hours for multi-stage and modulating furnace fans:
Because fans can also be used to circulate cool air through duct work, DOE is also proposing calculations intended to capture energy use for that purpose. DOE estimates national average cooling operating hours using the following formula:
Most furnace fans come with a cooling blower-on and blower-off delay feature. To account for this feature, DOE estimated the ratio of blower on-time to average compressor on-time based on manufacturer default blower delay settings listed in publically-available product literature for non-weatherized gas furnace models. DOE found that the median values are 45 seconds for blower off-delay and 2 seconds for blower on-delay. The average compressor on-time per cycle is 6 minutes for single-stage central air conditioners based on DOE's central air conditioner test procedure (10 CFR part 430, subpart B, Appendix M). Therefore, DOE estimates the ratio of blower on-time to average compressor on-time,
The average cooling energy use is derived using the average EIA's RECS 2005
The average annual constant-circulation hours are based on data from surveys. The first survey was conducted by researchers in Wisconsin in 2003.
DOE assumed a value for average number of constant-circulation hours for each survey response. For “no constant circulation” responses, DOE assumed zero annual furnace fan constant-circulation hours. For “year-round” responses, DOE assumed 7,290 average annual furnace fan constant-circulation hours, which DOE calculated by subtracting furnace fan heating and cooling operating hours for single-stage furnace fans (830 and 640, as estimated above) from the total annual hours (8,760). For “during heating season” responses, DOE assumed 1,097 hours, which is half of the quantity of heating season operating hours less furnace fan heating operating hours. More specifically, DOE calculated this value by subtracting furnace fan heating operating hours (830, as estimated
Table III.1 also shows the estimated weighted average national fraction of consumers and derived annual constant-circulation hours. To derive the annual constant-circulation hours, DOE assumed that on average, the combined data from the Wisconsin/Minnesota studies overestimate the fraction of consumers that use constant-circulation by 50 percent in the North and South Hot Dry region and by 90 percent in the South Hot Humid region.
As shown in Table III.1, the weighted average annual constant-circulation hours is 401 hours, rounded to 400 hours for the purposes of this test procedure.
For hydronic air handlers, DOE proposes to use a variation of FER that integrates standby mode and off mode electrical energy consumption with active mode electrical energy consumption. This variation of FER will be referred to as the integrated fan efficiency rating (IFER). The proposed standby mode hours are the remainder of annual hours not designated for cooling, heating, constant circulation, or off mode. Therefore:
DOE proposes a value of zero for hydronic air handler off mode operating hours because DOE expects that hydronic air handlers are not typically equipped with a seasonal off switch or that consumers will not turn off power to the hydronic air handler. Consideration of standby mode and off mode is discussed in more detail in section III.G. Table III.2 shows the proposed furnace fan annual operating hours by mode, as estimated according to the methods detailed above.
DOE is aware that climate conditions vary across the United States. DOE seeks comment on the appropriate values and methods for estimating these values for weighting fan efficiency in each rated airflow-control setting. DOE also seeks comment on how these operating hours may vary for multi-stage products. (See Issue 2 under “Issues on Which DOE Seeks Comment” in section V.E of this NOPR.)
DOE believes the AECR metric specified by CSA C823 is less appropriate than FER, because AECR is more burdensome without providing any additional useful information. AECR is more burdensome because it requires as many as 26 more determinations for the proposed range of ESP (0.1 in.w.c. to 0.75 in.w.c.). The number of determinations proposed to be specified for FER is discussed in detail in section III.F.2. In contrast to the proposed metric, DOE believes the approach suggested by ACEEE is also less appropriate, because DOE cannot set standards based on multiple metrics, as explained above. Furthermore, DOE believes the metric variations based on the current DOE furnace test procedure (
In the June 2010 framework document, DOE sought comment on the appropriate reference system for the purposes of rating furnace fan performance. 75 FR 31323 (June 3,
To circulate air through duct work, a furnace fan motor rotates an impeller, which increases the velocity of an airstream. As a result, the airstream gains kinetic energy. This kinetic energy is converted to a static pressure increase when the air slows downstream of the impeller blades. This static pressure created by the fan must be enough to overcome the pressure losses the airstream will experience throughout the duct work, and to a smaller degree, within the HVAC product itself, to provide sufficient delivery of conditioned air to the residence. Pressure losses are the result of directional changes in the duct work, friction between the moving air and surfaces of the duct work, and possible appurtenances in the airflow path. (In layman's terms, the conditioned air slows and eventually would stop the further it travels from the fan. However, in effective systems, continued action of the furnace fan overcomes such resistance and provides conditioned air to the intended space.) Therefore, the geometry of any HVAC component that obstructs the airflow path, the length of the duct work path, and number and nature of direction changes in the ductwork of a given system contribute to the pressure losses of the system. In most duct systems, the static pressure required to move the air is approximately equal to the square of the airflow rate. The duct static pressure is the ESP, which can be represented as follows:
A reference system is defined by specifying an airflow-control setting and a standardized ESP to determine values for Q and ESP. Once these values are known, K, which characterizes the reference system, can be calculated. The quadratic relationship described above is assumed for the duct work system to relate ESP to airflow in different airflow-control settings.
In the June 2010 framework document, DOE requested comment on a definition of the reference system based on a standardized ESP of 0.5 in.w.c. for the default heating airflow-control setting. For the framework document, DOE identified this reference system definition so as to be consistent with the reference system specified in the December 2009 draft of CSA C823.
Rheem recommended testing at an external static pressure of 0.2 in. w. c. in the default heating speed, and Morrison made the same point. (Rheem, No. 7 at p. 76; Morrison, No. 7 at p. 77) Mortex stated that 0.3 in. w.c. in cooling mode is used to test coil-only units and that similar criteria would be appropriate for furnace fans. (Mortex, No. 7 at p. 86) Ingersoll Rand stated that the default heating mode speed does not match up with any other conditions under which furnaces are already tested. Ingersoll Rand added that default heating speeds are typically lower than cooling speeds, which would result in better ratings when compared to air conditioners. (Ingersoll Rand, No. 7 at p. 79) Rheem commented that it expects ducting is designed for the highest airflow, which is typically the cooling mode, so specifying a heating speed for the reference system can be problematic, because it could result in extrapolating operating points for higher airflow-control settings that are beyond the manufacturer-recommended operating points. (Rheem, No. 7 at pp. 74–75)
Many interested parties stated that the ESP at which furnace fans are rated should reflect the ESP that furnace fans will face in the field. The National Resources Defense Council (NRDC), ACEEE, Center for Energy and Environment (CEE), NEEP, and Adjuvant Consulting all stated that an ESP of at least 0.5 in.w.c. should be used because it would best reflect actual field conditions. (ACEEE, No. 19 at p. 2; NRDC, No. 28 at p. 4; NEEP, No. 16 at pp. 3–4; Adjuvant Consulting, No. 7 at p. 80; CEE, No. 22 at p. 1) Pacific Gas and Electric Company asserted that the ESPs at which furnace fans are tested should be higher than those at which furnaces are currently rated in order to mirror the ESPs of systems in the field. (Pacific Gas and Electric Company, No. 7 at p. 81) CEE measured the ESP in 81 homes and found that the average was 0.55 in.w.c. in heating mode. (CEE, No. 22 at p. 1)
Not all interested parties agreed with setting the reference ESP at 0.5 in.w.c. AHRI and Morrison stated that DOE should utilize the methods outlined in ANSI/ASHRAE Standard 103,
DOE proposes to use an ESP value that is consistent, to the extent possible, with known field conditions. DOE expects this approach would result in ratings that are most representative of field energy use. DOE also expects that the use of manufacturer-recommended ESPs might overestimate furnace fan efficiency, because the ESP of field-installed HVAC systems typically exceeds the ESP recommended by manufacturers. Like manufacturers, DOE is also concerned about the energy use impact of installations with high static pressures. However, DOE does not expect that a reduction in average field ESPs that approaches the manufacturer-recommended levels is likely to occur, because installing new, larger, and more-efficient ducts in existing homes is generally cost-prohibitive. DOE is concerned that a metric based on a low, albeit desirable, static pressure level would not best represent furnace fan efficiency. Also, DOE is concerned that
In addition, DOE does not agree with contentions from Morrison, NEEA, Rheem, and AHRI that defining the reference system using an ESP value other than those already specified in associated DOE test procedures would be overly burdensome. Based on DOE's review of publicly-available product literature, airflow performance data is already measured and listed by manufacturers at ESPs that exceed those specified in the DOE test procedures for residential furnaces and central air conditioners. The ESPs specified in the residential central air conditioner test procedure at 10 CFR part 430, subpart B, Appendix M range from 0.1 to 0.2 in.w.c. for conventional split systems. The ESPs specified in the furnace test procedure at 10 CFR part 430, subpart B, Appendix N range from 0.12 to 0.58 in.w.c., depending on the fuel source and rated input capacity of the furnace. In contrast, most of the publicly-available product specification sheets that DOE reviewed include airflow performance data up to 1 in.w.c.
DOE gathered field data from available studies and research reports to determine an appropriate ESP value to propose for the reference system. DOE compiled over 1300 field ESP measurements from several studies that included furnace fans in single-family and manufactured homes in different regions of the country. DOE has included a list of citations for these studies in the docket for this rulemaking. A link to the docket Web page can be found at:
Data across studies were not consistent because some included external evaporator coil and/or filter pressure drops in their ESP measurements, whereas others did not. So that DOE could compare the data, DOE calculated adjusted ESP values for each study to derive one value that included the measured/estimated evaporator coil pressure drop and one that did not for each residence. All values included a measured or estimated filter pressure drop. Three of the aforementioned studies included filter and coil pressure drop data that DOE used to estimate average filter and coil pressure drops for these adjustments.
Table III.3 includes the weighted average “with-coil” and “without-coil” ESP results for single-family homes and manufactured homes.
DOE identified four installation types with unique reference system ESP considerations:
• Heating-only units;
• Units with an internal evaporator coil;
• Units designed to be paired with an evaporator coil; and
• Manufactured home units.
DOE proposes to treat these types of units as follows. DOE is aware that some hydronic air handlers are not designed to provide cooling. DOE has identified these as heating-only products. DOE proposes to specify a lower reference system ESP for these products, because they do not experience the additional pressure drop of circulating air past an evaporator coil.
DOE has identified weatherized gas furnaces as units with an internal evaporator coil. DOE proposes to specify a reference system ESP for these products that does not include the pressure drop of circulating air past an evaporator coil because FER already accounts for internal losses.
DOE is aware that non-weatherized gas furnaces, oil-fired furnaces, electric furnaces, modular blowers, and some hydronic air handlers are designed to accommodate an evaporator coil for cooling. DOE has identified these products as products not originally supplied with an evaporator coil but designed to be paired with an evaporator coil in the field. DOE proposes a higher reference system ESP for these products to ensure their FER accounts for the pressure drop of circulating air past an evaporator coil.
DOE proposes to use a different reference system ESP for manufactured home products to account for the space constraints and installation requirements that are unique to the manufactured home market.
DOE recognizes that units designed to be paired with an evaporator coil and manufactured home products are not always paired with evaporator coils, even though they are designed for this option. Using EIA's RECS 2005 data, DOE estimated the fraction of furnace installations paired with an evaporator coil in the field. DOE determined that 72.9 percent of single-family households with a non-weatherized gas or oil-fired furnace had central air-conditioners (
DOE
DOE found that field ESP values vary compared to manufacturer-recommended ESP values and considered the use of multiple reference systems. This notice refers to the December 2009 draft version of CSA C823, because that was the version that was referenced in the June 2010 furnace fan framework document. For the reasons discussed in section III.C, DOE is not proposing to use CSA C823 as a reference standard for this notice. However, DOE is aware that for the final version of CSA C823, CSA considered specifying multiple reference systems to account for differences in ESP and ultimately, fan performance at manufacturer-recommended operating conditions and typical, poor field operating conditions. Rheem supported the use of two reference system curves if the rating must include the effects of incorrect and potentially unsafe installation practices that occur in the field in spite of the manufacturers' installation instructions. Rheem suggested that these two curves should be based on a static pressure of 0.3 in.w.c. and 0.6 in.w.c. in the default heating airflow-control setting. (Rheem, No. 29 at p. 6)
DOE proposes to use only one reference system curve for each installation type, as described above because for the reasons discussed previously, DOE cannot set standards based on multiple metrics. In addition, DOE investigated the use of a combined metric based on multiple reference system curves. For a subset of fans, DOE averaged an FER based on a high reference system ESP value and an FER based on a low reference system ESP value by increasing and decreasing the proposed ESP values by 0.15 in.w.c. For example, the resulting high and low reference system ESP values for this investigation for furnace fan products that are designed to be paired with evaporator coils (
In the June 2010 framework document, DOE requested feedback on the appropriate number of measurements (
Comments from interested parties indicate that some are in favor of a metric that accounts for fan electrical consumption while operating in a single airflow-control setting, while others are in favor of a metric that accounts for operation in multiple airflow-control settings. AHRI and certain manufacturers, including Rheem, Nordyne, and Lennox, suggested that DOE should use “e,” which is based on the measured electrical energy consumption of the fan at a single operating point. (AHRI, No. 21 at p. 4; Rheem, No. 29 at p. 3; Nordyne, No. 31 at p. 2; and Lennox, No. 23 at p. 2) Ingersoll Rand added that it questions whether more than one test point per airflow-control setting and whether more airflow-control settings than there are heat stages (with possible consideration of an additional point for cooling) is necessary to rate furnace fans, given that they perform quite predictably in accordance with well-established “fan laws.” (Ingersoll Rand, No. 25 at p. 1) Johnson Controls stated that electrically-commutated motors (ECM) have an efficiency advantage over permanent split capacitor (PSC) motors at low or partial-load conditions but not necessarily at higher/maximum-load conditions. (Johnson Controls, No. 7 at p. 145) In contrast, ACEEE remarked that DOE should not use a single annual energy consumption metric, but instead, the minimum efficiency standard should be based on the power for circulation, heating, and cooling modes weighted by average annual operating hours in each mode. (ACEEE, No. 30 at p. 3) NEEP recommended that DOE use a rating system based on two or three fan speeds to capture the efficiency of fans that use ECM motors. (NEEP, No. 16 at p. 3)
After considering available information and public comments on this issue, DOE has tentatively concluded that a metric based on measurements in multiple airflow-control settings would be appropriate to account for furnace fan energy consumption across its entire operating range. DOE recognizes that furnace fans are used not just for circulating air through duct work during heating operation, but also for circulating air during cooling and constant-circulation operation. As mentioned previously, DOE understands that higher airflow-control settings are factory set for cooling operation. Therefore, DOE expects that the electrical energy consumption of a furnace fan is generally higher while performing the cooling function. Consequently, DOE expects that using a metric based on a single measurement in an airflow-control setting designated for heating could result in an incomplete assessment of overall performance. DOE further recognizes that the potential for significant power reduction occurs when the fan is operating in its lowest airflow-control setting, which DOE finds is typically factory set for constant-circulation. This significant power reduction is consistent with the theory that fan input power is proportional to the cube of the airflow. Consequently, a “snapshot approach” which specifies only a single airflow-control setting may not be representative of the product's average use. However, some fan technologies may not reduce power input in this fashion. DOE is concerned that rating furnace fan performance at a single airflow-control setting would incentivize manufacturers to design fans optimized to perform efficiently at the selected rating airflow-control setting but that are not efficient over the broad range of field operating conditions. DOE expects that a rating metric that includes measurements at multiple airflow-control settings would help ensure that the rating metric captures the efficiency advantages of using motor technologies that maintain higher efficiencies over a broad range of operating conditions. DOE is aware that other technologies, such as improved impeller designs, may also improve efficiency in some, but not all, of the expected range of operation.
For the reasons above, DOE proposes that FER be based on measurements taken in multiple airflow-control settings, which have been selected to represent the main product functions that have varied energy usage profiles. For products with single-stage heating, the three proposed rating airflow-control settings would be the maximum setting, the default heating setting, and the default constant-circulation setting. For products with multi-stage heating or modulating heating, the proposed rating airflow-control settings would be the maximum setting, the default low-heating setting, and the default constant-circulation setting. For heating-only products, the proposed rating airflow-control settings would be the default heating setting and the default constant-circulation setting. The lowest default airflow-control setting would be used to represent constant circulation, for units in which a constant-circulation setting is not specified. The default low-heat setting would be the airflow-control setting used to circulate air when the HVAC product is operating at its lowest nominal heating input capacity. DOE believes that using the FER metric would ensure that the operating characteristics of all of the relevant airflow-control settings are accounted for in the efficiency metric, and it would, thus, rate at higher efficiency a furnace fan that does reduce power more consistently with the theoretical cubic relationship. In selecting the multiple airflow-control settings discussed above, it is noted that DOE is aware that some furnace fans are designed to have more than three airflow-control settings. DOE compared ratings that use measurements in two, three, and five airflow-control settings and found that a metric that uses measurements in three (or two for heating-only products) of the available airflow-control settings appropriately captures the efficiency advantages of using more-efficient technologies while minimizing burden on manufacturers.
In the June 2010 framework document, DOE sought comment on the appropriate total number of determinations that DOE should specify that manufacturers make in each airflow-control setting to develop performance curves without being overly burdensome.
As described above in section III.D, the proposed active mode metric incorporates furnace fan input power at multiple operating points, which are determined by the intersections of the performance curves (
Rheem commented that the maximum ESP for PSC motors is typically 0.7 in.w.c. and that the maximum ESP for ECM motors is documented up to 1 in.w.c. (Rheem, No. 29 at p. 4) Ingersoll Rand expressed a similar view, stating that the maximum reported testing data are taken at about 1 in.w.c. ESP for ECM motors and 0.8 in.w.c. for PSC motors. (Ingersoll Rand, No. 7 at p. 67)
Many interested parties commented that fewer determinations are necessary than are specified in the December 2009 draft version of CSA C823. The December 2009 draft of CSA C823 required measurements at increments of at least 0.1 in.w.c. for the desired range of operation, so under that approach, a furnace fan with 5 airflow-control settings and a range of operation from 0 to 1 in.w.c. would require 50 determinations. ACEEE recommended that manufacturers be required to certify the smallest set of data required to build performance maps for intended applications. ACEEE added that few measurements would need to be certified. (ACEEE, No. 19 at p. 4) Rheem stated that, theoretically, only three points are required to develop a performance curve. Rheem also stated that it is important to get the high and low points correct to avoid extrapolation. (Rheem, No. 7 at p. 67) Ingersoll Rand, NRDC, Johnson Controls, and AHRI recommended that determinations be made in 0.2 in.w.c. increments. (Ingersoll Rand, No. 7 at pp. 65–66; NRDC, No. 28 at p. 4; Johnson, No. 7 at pp. 67–69; and AHRI, No. 20 at p. 5) Regal Beloit recommended that DOE rate furnace fans at ESPs from 0.5 in.w.c. to 1.4 in.w.c. at 0.1 in.w.c. increments. Regal Beloit added that there must be multiple static points to help define the operating range of the blower with 0.5 in.w.c. maximum difference between points. (Regal Beloit, No. 32 at p. 2)
DOE agrees that the total number of determinations resulting from measuring at 0.1 in.w.c. increments would be unnecessary to derive reasonably accurate ratings for furnace fans. In seeking to determine the appropriate number of measurements, DOE explored three determination methods by generating FER values using airflow and electrical consumption measurement data from testing and publically-available product literature at: (1) 0.1 in.w.c. increments; (2) 0.2 in.w.c. increments; and (3) the minimum, mid-point, and maximum ESP. The test data and product-literature data were measured according to ANSI/AMCA 210–07, and the methodology used to derive the FER values is described in detail in section III.H. DOE analyzed measurements for 15 furnace fans used in various product types, including non-weatherized condensing and non-condensing gas furnaces, weatherized gas furnaces, oil-fired furnaces, electric furnaces, hydronic air handlers, and modular blowers. DOE found that the FER changes by an average of less than 1 percent (with a standard deviation of 3 percent) when using the 3-point determination method, as compared to the 0.1 in.w.c. increment method. Similar differences resulted for the 0.2 in.w.c. increment determination method, as compared to the 0.1 in.w.c. increment method. DOE expects that the FER differences between the 0.1 in.w.c. and 3-point determination methods are small enough that using the 3-point determination method would still result in reasonably accurate ratings and rankings of furnace fan efficiency. Therefore, DOE proposes to specify that 3 determinations be made for each rating airflow-control setting. DOE proposes to specify determinations at: (1) 0.1 in.w.c.; (2) an ESP equal to the applicable reference system ESP divided by 2; and (3) an ESP between the applicable reference system ESP and 0.1 in.w.c. above that reference system ESP.
EPCA, as amended by EISA 2007, requires that any final rule for a new or amended energy conservation standard adopted after July 1, 2010, must address standby mode and off mode energy use pursuant to 42 U.S.C. 6295(o). (42 U.S.C. 6295(gg)(3)) Thus, the statute implicitly directs DOE, when developing new test procedures to support new energy conservation standards, to account for standby mode and off mode energy consumption. EISA 2007 also requires that such energy consumption be integrated into the overall energy efficiency, energy consumption, or other energy descriptor, unless the current test procedure already accounts for standby mode and off mode energy use. If an integrated test procedure is technically infeasible, DOE must prescribe a separate standby mode and off mode test procedure for the covered product, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)) Accordingly, DOE must address the standby mode and off mode energy use of residential furnace fans in this test procedure. However, DOE has already incorporated standby mode and off mode energy use in the test procedures (or proposed test procedures) for several of the products to which this test procedure rulemaking is applicable.
Table III.5 summarizes the test procedure rulemaking vehicles through which DOE is addressing standby mode and off mode energy consumption for the various types of products which circulate air through duct work.
Measurement of standby mode and off mode energy use for non-weatherized gas furnaces, oil-fired furnaces, and electric furnaces is already prescribed in the furnace test procedure (10 CFR part 430, subpart B, appendix N, section 8.0). In a September 13, 2011 NOPR, DOE proposed amendments to the furnaces test procedure related to standby mode and off mode. 76 FR 56339. DOE proposed coverage of standby mode and off mode energy use for modular blowers and weatherized gas furnaces in a June 2, 2010 NOPR. 75 FR 31224. DOE subsequently published one SNOPR on April 1, 2011 and another on October 24, 2011 regarding standby mode and off mode test procedures for these products. 76 FR 18105; 76 FR 65616. Furnace fans are integrated in the electrical systems of the HVAC products in which they are used and controlled by the main control board. Therefore, there is no standby mode and off mode energy use associated with furnace fans used in the aforementioned products that would not already be measured by the established or proposed test procedures associated with these products. Hence, given that the standby mode and off mode energy consumption of these types of furnace fans either has been or is in the process of being fully addressed, there is no need for DOE to adopt additional test procedure provisions for these modes in this rulemaking.
There are no current DOE test procedures for measurement of electrical energy use in hydronic air handlers nor is there an ongoing rulemaking for which such test procedures have been proposed. Hence, the standby mode and off mode energy use for furnace fans that are incorporated into these products must be considered in this rulemaking. DOE proposes to incorporate in this notice test methods to measure the standby mode and off mode energy of hydronic air handlers that are identical to those specified in the DOE test procedure for residential furnaces and boilers (10 CFR part 430, subpart B, appendix N, section 8.0). On September 13, 2011, DOE published a NOPR to update the DOE test procedure for furnaces through incorporation by reference of the latest edition of the relevant industry standard, specifically IEC Standard 62301 (Second Edition). 75 FR 56339. DOE proposes to also adopt the updates proposed in the September 2011 furnaces test procedure NOPR for measurement of standby mode and off mode energy of furnace fans incorporated in hydronic air handlers. DOE believes these methods are appropriate, because both furnaces and hydronic air handlers are used primarily in central heating applications, and DOE expects that the electrical systems (
First, three determinations (
Next, calculate the reference system airflow using the quadratic performance curve derived for the maximum airflow-control setting and the appropriate reference system ESP, ESP
The intersections of the reference system curve and the performance curves of each rating airflow-control setting are the expected operating points for the furnace fan in ducting with the characteristics of the reference system. Determine the airflows of the operating points in the other (non-maximum) rating airflow-control settings by identifying at which airflows the reference system curve intersects each performance curve. Do this by solving separately for each control setting the set of two equations representing the reference system curve and performance curve. To calculate the ESPs of the operating points, use the previously calculated airflows and the reference system equation.
Electrical consumption at the operating points is determined using curve fits for power input derived from the power measurements made for the rating airflow-control settings. Fit a separate quadratic curve to the electrical consumption and ESP measurements made for each airflow-control setting to derive an equation providing electrical consumption as a function of ESP for each rating airflow-control setting in the following form:
Input the previously calculated ESPs of the operating points into the electrical consumption curve to derive the expected electrical consumption at the operating point for each rating airflow-control setting. Use these electrical consumption measurements to calculate FER.
A general form of the FER equation is as follows:
There are a number of variations of the FER equation depending on the product type. For furnace fans used in HVAC products other than hydronic air handlers, standby mode and off mode electrical energy consumption is not integrated in the FER calculation, because such energy consumption is captured in other test procedure provisions. The standby mode and off mode variables (
Table III.6 presents the proposed values for the operating hour variables in the above FER equations.
DOE provides sampling plans for all covered products. The purpose of these sampling plans is to provide uniform statistical quality for the various test procedure representations of energy consumption and energy efficiency for each covered product. These sampling plans apply to all aspects of the EPCA program for consumer products, including public representations, labeling, and energy conservation standards. 10 CFR 429.11 DOE proposes that the existing sampling plans used for furnaces be adopted and applied to measures of energy consumption for furnace fans, with some exceptions as noted in the discussion below.
For purposes of certification testing, the determination that a basic model complies with the applicable energy conservation standard must be based on testing conducted using DOE's test procedures and the sampling procedures, which are found at 10 CFR 429.18 for residential furnaces. The sampling procedures provide that “a sample of sufficient size shall be randomly selected and tested to ensure [compliance].” A minimum of two units must be tested to certify a basic model as compliant. This minimum is implicit in the requirement to calculate a mean—an average—which requires at least two values. Under no circumstances is a sample size of one (1) authorized. Manufacturers may need to test more than two samples depending on the variability of their sample. Therefore, the sample size can be an important element when evaluating the compliance of a basic model.
DOE uses statistically meaningful sampling procedures for selecting test specimens of residential products, which would require the manufacturer to select a sample at random from a production line and, after each unit or group of units is tested, either accept the sample or continue sampling and testing additional units until a rating determination can be made. DOE did not propose a specific sample size for each product because the sample size is determined by the validity of the sample and how the mean compares to the standard, factors which cannot be determined in advance.
In this notice, DOE proposes to create a provision at 10 CFR 429.55 for furnace fan certification. This section would include sampling procedures and certification report requirements for furnace fans. DOE proposes that 10 CFR 429.55 adopt, for furnace fans, the same statistical sampling procedures that are applicable to residential furnaces, which are contained in 10 CFR 429.18. DOE proposes that these statistical sampling procedures be applied to covered products addressed by the test procedures in this NOPR. DOE believes product variability and measurement repeatability associated with the electrical energy consumption measurements proposed for rating residential furnace fans are similar to the variability and measurement repeatability associated with electrical energy consumption measurement required for residential furnaces. Hence, DOE believes that the existing statistical sampling procedures for furnace measures of energy consumption and efficiency are appropriate for the corresponding measures for furnace fans.
Although the statistical sampling procedures would be the same for furnaces and furnace fans, DOE proposes to create the new section 429.55 within 10 CFR part 429, because certification reporting requirements for furnace fans will be different than those specified for furnaces. DOE proposes that this section specify reporting of the general certification report requirements within 10 CFR 429.12, as well as the following additional information in certification reports for furnace fans:
•
•
DOE requests comment on whether the sampling plan specified in 10 CFR 429.18 for residential furnaces is appropriate for residential furnace fans. DOE also requests comment on whether the proposed certification report requirements are appropriate. (See Issue 10 under “Issues on Which DOE Seeks Comment” in section V.E of this NOPR.)
The Office of Management and Budget has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. 68 FR 7990. DOE has tentatively concluded that the proposed rule would not have a significant economic impact on a substantial number of small entities under the provisions of the Regulatory Flexibility Act. The factual basis for this certification is as follows:
The Small Business Administration (SBA) considers an entity to be a small business if, together with its affiliates, it employs fewer than a threshold number of workers specified in 13 CFR part 121. The threshold values set forth in these regulations use size standards and codes established by the North American Industry Classification System (NAICS) that are available at:
This proposed rule would establish test procedures that would be used for representations of energy use and to test compliance with new energy conservation standards, which are being developed in a concurrent rulemaking, for the products that are the subject of this rulemaking. This notice proposes new test procedures for active mode testing for all covered products, and, for furnace fans used in hydronic air handlers, it proposes test procedures for standby mode and off mode testing as well. For active mode testing, the proposed rule would require the use of the testing methods prescribed in ANSI/AMCA 210–07. As discussed in section III.C above, this would not represent a substantial burden to any furnace fan manufacturer, small or large. According to AHRI, the trade organization that represents manufacturers of furnace fans, manufacturers currently routinely perform furnace fan tests according to ANSI/AMCA 210–07 to generate airflow data for intended application of products (AHRI, No. 21 at pp. 3,4). Therefore, DOE expects little or no additional cost as the result of the new test procedure. If there were to be a new manufacturer which does not own the necessary equipment (
For standby mode and off mode testing, the proposed rule would require the use of the testing methods prescribed in IEC Standard 62301 (Second Edition). As discussed in section III.G, the proposed rule would only result in additional testing related to standby mode and off mode electrical energy consumption for manufacturers of furnace fans used in hydronic air handlers. Manufacturers of furnace fans used in HVAC products other than hydronic air handlers are (or will be) required to conduct standby mode and off mode testing pursuant to other rulemakings. DOE expects that furnace fan manufacturers would incur no additional equipment costs as a result of the proposed standby mode and off mode testing because an electrical power meter is already required to conduct the proposed active mode testing. Also, manufacturers of furnace fans used in hydronic air handlers are often manufacturers of furnace fans used in other HVAC products. These manufacturers should already possess or will have to purchase an electrical power meter as a result of other rulemakings that require standby mode and off mode testing of the non-hydronic products covered in this rulemaking. DOE estimates the cost per unit for standby mode and off mode testing to be less than $300 and the time to complete a single standby mode and off mode test according to the proposed test procedure to be less than one hour.
Even in the unlikely scenario that a small manufacturer with low annual shipments has to purchase testing equipment or contract with a third-party test facility as a result of this rule, DOE estimates that the per-unit investment would not be significant. For example, a small manufacturer that ships 1,000 units per year could choose to purchase the necessary equipment for approximately $150,000. DOE estimates that, over the life of the test equipment (20 years), the additional cost of testing for the manufacturer would be $7.50 per unit shipped. A less costly option for the same manufacturer would be to use third-party testing to certify its products. In this scenario, the small manufacturer would likely pay less than $2,300 per test for at least two tests to certify one new product every two years. DOE estimates that this would cost the small manufacturer $2.30 per unit shipped. DOE finds that the selling price for HVAC products that incorporate furnace fans ranges from approximately $400 to $4,000. Therefore, the added cost of testing, at most, would be less than 2 percent of the manufacturer selling price (and lower than 0.1 percent in some cases).
For these reasons, DOE certifies that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a
There is currently no information collection requirement related to the test procedure for residential furnace fans. In the event that DOE proposes an energy conservation standard with which manufacturers must demonstrate compliance, or otherwise proposes to require the collection of information derived from the testing of residential furnace fans according to this test procedure, DOE will seek OMB approval of such information collection requirement.
Manufacturers of covered products must certify to DOE that their products comply with any applicable energy conservation standard. In certifying compliance, manufacturers must test their products according to the applicable DOE test procedure, including any amendments adopted for that test procedure.
DOE established regulations for the certification and recordkeeping requirements for certain covered consumer products and commercial equipment. 76 FR 12422 (March 7, 2011). The collection-of-information requirement for the certification and recordkeeping was subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement was approved by OMB under OMB Control Number 1910–1400. Public reporting burden for the certification was estimated to average 20 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
As stated above, in the event DOE proposes an energy conservation standard for residential furnace fans with which manufacturers must demonstrate compliance, DOE will seek OMB approval of the associated information collection requirement. DOE will seek approval either through a proposed amendment to the information collection requirement approved under OMB control number 1910–1400 or as a separate proposed information collection requirement.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this notice of proposed rulemaking, DOE proposes a new test procedure for furnace fans. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 10, 1999) imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has tentatively determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of today's proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104–4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988) that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must provide a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that today's regulatory action, which would prescribe the test procedure for measuring the energy efficiency of residential furnace fans, is not a significant energy action because the proposed test procedure is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on the proposed rule.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95–91), DOE must comply with all laws applicable to the former Federal Energy Administration, including section 32 of the Federal Energy Administration Act of 1974 (Pub. L. 93–275), as amended by the Federal Energy Administration Authorization Act of 1977. (Pub. L. 95–70) 15 U.S.C. 788. Section 32 provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.
The proposed rule incorporates testing methods contained in ANSI/AMCA 210–07 | ANSI/ASHRAE 51–07, “Laboratory Methods of Testing Fans for Certified Aerodynamic Performance Rating”; IEC Standard 62301 (Second Edition),
The time, date and location of the public meeting are listed in the
In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site at:
Any person who has an interest in the topics addressed in this notice, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the public meeting. Such persons may hand-deliver requests to speak to the address shown in the
DOE requests persons selected to make an oral presentation to submit an advance copy of their statements at least one week before the public meeting. DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Program. As necessary, request to give an oral presentation should ask for such alternative arrangements.
Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the public meeting, interested parties may submit further comments on the proceedings, as well as on any aspect of the rulemaking, until the end of the comment period.
The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will allow, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be posted on the DOE Web site and will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a compact disk (CD), if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English, and are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
DOE is aware that furnace fan control schemes typically include airflow-control settings (
DOE is aware that climate conditions and consumer behavior vary in the United States. DOE's proposed furnace fan annual operating hour values are intended to be representative of the national average operating hours that furnace fans are expected to spend performing each primary function: cooling, heating, and constant-circulation. DOE proposes to specify one set of annual operating hours for products with single-stage heating and another for products with multi-stage or modulating heating. DOE does not propose to account for multi-stage cooling, because detailed characteristics of the cooling system with which furnace fan HVAC products are paired, such as the presence and capacity of low-stage cooling, are not known. In addition, multi-stage heating is not necessarily associated with multi-stage cooling capability (
Table V.1 below summarizes the proposed operating hour values to be specified for calculating FER.
DOE requests comment on whether the proposed operating hour values are reasonable estimations of national average operating hours for each furnace fan function. DOE also requests comment on the methodology and assumptions used to estimate these values, which are described in detail in section III.D.
As described in section III.E, DOE compiled field ESP data to determine reference system ESP values that are representative of field conditions. Based on the data collected, DOE proposes the reference system ESP values in Table V.2 below for the four identified installation types.
DOE seeks
DOE is aware that field ESPs can be higher than recommended by manufacturers. DOE is also aware that CSA considered rating fan performance in multiple reference systems for the finalized version of CSA C823: one at 0.3 in.w.c. in the heating speed to represent a manufacturer-recommended installation, and one at 0.6 in.w.c. in the heating speed to be more representative of a typical (poor) field installation. A multiple-reference system rating metric would specify reference systems to represent the expected range of installations. DOE expects that a furnace fan may provide enough airflow for 4 tons of cooling in a house with generously-sized ducts, but it may only provide enough airflow for 3 tons of cooling in a house with a more restrictive duct system. Therefore, a furnace fan with these performance characteristics might be installed in 2-ton to 4-ton cooling systems in large-duct houses and 1.5-ton to 3-ton cooling systems in tight-duct houses. DOE recognizes that rating the furnace fan using one reference system defined by a high ESP and one reference system defined by a low ESP (determined by statistical methods from field ESP data) could give a good indication of the ability of the furnace fan to provide good performance over a range of ESP. DOE investigated the use of a combined, multi-reference system FER, but found that it provided no additional useful information compared to the proposed, single-reference system FER. This comparison is discussed in detail in section III.E. DOE requests comment on multiple-reference system rating approaches and whether they would give a better indication of the overall performance, as compared to the proposed single reference system approach.
DOE proposes to incorporate in this test procedure the methods specified in the DOE test procedure for residential furnaces and boilers (10 CFR part 430, subpart B, appendix N, section 8.0) to measure the standby mode and off mode energy consumption for furnace fans used in hydronic air handlers. On September 13, 2011, DOE published a NOPR to update the DOE test procedure for furnaces through incorporation by reference of the latest edition of the industry standard, specifically IEC Standard 62301 (Second Edition). 76 FR 56339. DOE proposes to also adopt the updates proposed in the September 2011 furnaces test procedure NOPR for measurement of standby mode and off mode energy of furnace fans incorporated in hydronic air handlers. The standby mode and off mode electrical energy consumption of the other HVAC products discussed in this notice are already fully accounted for in other proposed or established DOE test procedures. DOE believes the methods specified in the DOE test procedure for residential furnaces and boilers to measure the standby mode and off mode energy consumption are appropriate because both furnaces and hydronic air handlers are used primarily in central heating applications, and DOE expects that the electrical systems (
DOE proposes to integrate the standby mode and off mode electrical energy consumption measurements, E
DOE is aware that higher-efficiency motors have complicated control schemes that make selecting their available airflow-control settings during performance testing difficult. The ability to select and operate a furnace fan in multiple airflow-control settings is imperative to conducting the proposed test procedure as intended and to derive FER. While this may be simple for manufacturers who are familiar with HVAC controls, independent test labs may need guidance. Therefore, DOE seeks comment on the appropriateness of the proposed test procedures for controlling furnace fans that use higher-efficiency motors, including recommendations for any necessary modifications.
DOE recognizes that ANSI/AMCA 210–07 includes 16 setup variations. DOE requests comments on which of these setups are best-suited for the purposes of this test procedure. DOE expects that the blow-through setups, such as test setup 12, may be more appropriate than pull-through setups, such as setup 13, because they are more representative of typical installations of the HVAC products discussed in this notice. DOE also requests comments on
DOE expects that measurements referred to as “external static pressure” in manufacturer product literature are the same as “fan static pressure” measurements in ANSI/AMCA 210–07 (ANSI/AMCA 210–07 section 3.1.25). The ANSI/AMCA 210–07 “fan static pressure” measurement is defined to be equal to the outlet total pressure minus the inlet total pressure minus the outlet velocity pressure. Therefore, this notice proposes an equivalent definition for “external static pressure.” However, DOE notes that this value is not equal to the difference between outlet and inlet static pressure—it is less than such a difference by an amount equal to the inlet velocity pressure. DOE requests comments on the proposed definition of “external static pressure” and whether DOE is correct in assuming that external static pressure ratings reported in product literature are equivalent to ANSI/AMCA 210–07 fan static pressure measurements.
DOE is aware that barometric pressure changes may have an impact on test measurement results and notes that the ANSI/AMCA 210–07 standard does not appear to include correction for this effect. DOE requests comment on whether any limitations on the barometric pressure range or adjustments to address the impact of barometric pressure should be included in the test procedure.
DOE proposes to adopt the existing sampling plan procedures applicable to residential furnaces for certification of residential furnace fans. DOE requests comments on whether the sampling plan procedures for residential furnaces are appropriate for representation and certification of residential furnace fans measures of electrical energy consumption. DOE also proposes to specify the general certification report requirements within 10 CFR 429.12, as well as the following additional information in certification reports for furnace fans:
•
•
DOE also requests comment on whether these certification report requirements are appropriate.
The Secretary of Energy has approved publication of today's notice of proposed rulemaking.
Confidential business information, Energy conservation, Household appliances, Imports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
For the reasons stated in the preamble, DOE proposes to amend parts 429 and 430 of chapter II, subchapter D, of Title 10 of the Code of Federal Regulations to read as set forth below:
1. The authority citation for part 429 continues to read as follows:
42 U.S.C. 6291–6317.
2. Add new § 429.55 to read as follows:
(a)
(2) For each basic model of heating, ventilation, and air-conditioning (HVAC) product using a furnace fan, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of fan efficiency rating (FER) or integrated fan efficiency rating (IFER) for which consumers would favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
(ii) The upper 97
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i)
(ii)
3. The authority citation for part 430 continues to read as follows:
42 U.S.C. 6291–6309; 28 U.S.C. 2461 note.
4. Section 430.3 is amended by:
a. Adding paragraph (d)(1);
b. Redesignating paragraphs (d)(1) through (d)(18) as (d)(2) through (d)(19);
c. Removing, in paragraph (f)(9) “and appendix N to subpart B” and adding in its place “appendix N and appendix AA to subpart B”;
d. Removing, in paragraph (m)(2), “IBR approved for Appendix J2 and AA to subpart B” and adding in its place “IBR approved for appendix G, N, O, P, and AA” .
The addition reads as follows:
(d)
(1) ANSI/AMCA 210–07 | ANSI/ASHRAE 51–07 (“ANSI/AMCA 210–07”), Laboratory Methods of Testing Fans for Certified Aerodynamic Performance Rating, approved 2007, IBR approved for Appendix AA to Subpart B.
5. Section 430.23 is amended by adding a new paragraph (cc) to read as follows:
(cc)
6. Appendix AA to subpart B of part 430 is added to read as follows:
1.
2.
2.1.
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
2.8.
2.9.
2.10.
2.11.
3.
3.1.
3.1.1.
3.1.2.
4.
5.
5.1.
5.2.
5.2.1.
5.2.2.
6.
6.1.
For products with single-stage heating, the rating airflow-control settings are the maximum setting, the default heating setting, and the default constant-circulation setting. For products with multi-stage heating or modulating heating, the rating airflow-control settings are the maximum setting, the default low-heating setting, and the default constant-circulation setting. For hydronic air handlers that are not designed to be paired with an evaporator coil, the rating airflow-control settings are the default heating setting (expected to be the maximum airflow-control setting) and the default constant-circulation setting. The lowest default airflow-control setting is used to represent constant circulation if a constant-circulation setting is not specified.
6.2.
6.3.
6.4.
6.5.
6.6.
6.6.1.
6.6.2.
Table 1 includes the operating hour values to be used to calculate FER.
7.
7.1.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service, propose to list Umtanum desert buckwheat (
We will consider all comments received or postmarked on or before July 16, 2012. We must receive requests for public hearings, in writing, at the address shown in the
(1)
(2)
We request that you send comments only by the methods described above. We will post all information received on
Ken Berg, Manager, U.S. Fish and Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond Drive, Suite 102, Lacey, Washington 98503–1263, by telephone (360) 753–9440, or by facsimile (360) 753–9405. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
We have made the following finding related to these criteria:
• Umtanum desert buckwheat is threated by wildfire, nonnative plants, seed predation, small population size, limited geographic range, and low recruitment.
• White Bluffs bladderpod is threatened by wildfire, irrigation-induced landslides and slope failure, harm by recreational activities and off-road vehicle use, nonnative plants, small population size, and limited geographic range.
This rule proposes to designate critical habitat for both species.
• Critical habitat designation would not be expected to increase threats to either species, and we have sufficient scientific information on both species to determine the areas essential to their conservation. Accordingly, we have determined the designation of critical habitat is both prudent and determinable.
• Approximately 2,400 acres of Federal land, 17 acres of State land, and 419 acres of private land are being proposed as critical habitat for both species.
• Based on the best available scientific and commercial data, we have not identified a significant number of small entities that may be impacted by the proposed critical habitat designation. Small entities are consequently anticipated to bear a relatively low cost as a result of the designation of critical habitat.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) Additional information concerning the historical and current status, range, distribution, population size, pollinators and the foraging distances of these species, including the locations of any additional populations of these species.
(2) Any information on the biological or ecological requirements of these species and ongoing conservation measures for these species and their habitat.
(3) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act, which are:
(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
(4) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats, as discussed in this proposed rule.
(5) Current or planned activities in the areas occupied by
(6) The reasons why areas should or should not be designated as critical habitat as provided by section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531,
(7) Specific information on:
(a) The amount and distribution of habitat for Umtanum desert buckwheat or White Bluffs bladderpod;
(b) What areas occupied at the time of the proposed listing that contain features essential to the conservation of the species should be included in the designation and why;
(c) Special management considerations or protections that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) What areas that are not occupied at the time of the proposed listing are essential for the conservation of the species and why.
(8) Land use designations and current or planned activities in the area and their possible impacts on the proposed critical habitat.
(9) Information on the projected and reasonably likely impacts of climate change on Umtanum desert buckwheat or White Bluffs bladderpod and the proposed critical habitat areas.
(10) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.
(11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act and why.
(12) Information on whether the draft economic analysis (DEA) identifies all costs and benefits attributable to the proposed critical habitat designation for each of the plants, and information on any costs or benefits that we have overlooked.
(13) Information on whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes likely if we designate critical habitat.
(14) Information on whether the DEA identifies all costs reasonably likely to occur that could result from the critical habitat designation and whether you agree with the analysis.
(15) Economic data on the incremental costs of designating any particular area as critical habitat.
(16) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available,” and section 4(b)(2) directs that critical habitat designations be made based on the best scientific data available and after consideration of economic and other relevant impacts.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information 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
It is our intent to discuss only those topics directly relevant to the proposed listing and critical habitat designations for Umtanum desert buckwheat and White Bluffs bladderpod in this proposed rule. A summary of topics relevant to this proposed rule is provided below. Additional information on both species may be found in the Candidate Notice of Review, which was published October 26, 2011 (76 FR 66370).
Umtanum desert buckwheat and White Bluffs bladderpod are found only on the Hanford Reach of the Columbia River, the last free-flowing stretch of the Columbia River within U.S. borders. The Hanford Reach lies within the semi-arid shrub steppe Pasco Basin of the Columbia Plateau in south-central Washington State. The region's climate is influenced by the Pacific Ocean, the Cascade Mountain Range to the west, and other mountain ranges located to the north and east. The Pacific Ocean moderates temperatures throughout the Pacific Northwest, and the Cascade Range generates a rain shadow that limits rain and snowfall in the eastern half of Washington State. The Cascade Range also serves as a source of cold air drainage, which has a considerable effect on the wind regime on the Hanford Installation. Daily maximum temperatures vary from an average of 1.7 °Celsius (C) (35 °Fahrenheit (F)) in late December and early January, to 36 °C (96 °F) in late July. The Hanford Reach is generally quite arid, with an average annual precipitation of 16 centimeters (cm) (6.3 inches (in)). The relative humidity at the Hanford Reach is highest during the winter months, averaging about 76 percent, and lowest during the summer, averaging about 36 percent. Average snowfall ranges from 0.25 cm (0.1 in) in October to a maximum of 13.2 cm (5.2 in) in December, decreasing to 1.3 cm (0.5 in) in March. Snowfall accounts for about 38 percent of all precipitation from December through February (USFWS 2008, pp. 3.8–3.10).
The Hanford Reach National Monument/Saddle Mountain National Wildlife Refuge (Monument), which includes approximately 78,780 hectares (ha) (195,000 acres (ac)), contains much of the Hanford Reach of the Columbia River. All of the land is owned by the Department of Energy (DOE) and was formerly part of the 145,440-ha (360,000-ac) Hanford installation. The Hanford installation was established by the U.S. Government in 1943 as a national security area for the production of weapons grade plutonium and purification facilities. For more than 40 years, the primary mission at Hanford was associated with the production of nuclear materials for national defense. However, large tracts of land were used as protective buffer zones for safety and security purposes and remained undisturbed.
The Hanford Reach National Monument was established by Presidential Proclamation in June 2000, to connect these tracts of land, protecting the river reach and the largest remnant of the shrub steppe ecosystem in the Columbia River Basin. The Hanford Reach National Monument Proclamation identifies several nationally significant resources, including a diversity of native plant and animal species, including rare and sensitive plant species such as Umtanum desert buckwheat and White Bluffs bladderpod (USFWS 2008, p. 1–4). The Proclamation also sets forth specific management actions and mechanisms that are to be followed: (1) Federal lands are withdrawn from disposition under public land laws, including all interests in these lands, such as future mining claims; (2) off-road vehicle use is prohibited; (3) the ability to apply for water rights is established; (4) grazing is prohibited; (5) the Service and DOE (subject to certain provisions) are established as managers of the Monument; (6) a land management transfer mechanism from the DOE to the Service is established; (7) cleanup and restoration activities are assured; and (8) existing rights, including tribal rights, are protected.
All lands included in the Monument are Federal lands under the primary jurisdiction of the DOE. Approximately 66,660 ha (165,000 ac) are currently managed as an overlay refuge by the Service through agreements with the DOE. Overlay refuges exist where the Service manages lands for the benefit of fish and wildlife resources, but is not the primary holder in fee title of lands forming the refuge (Service 2008, p. 1–7). Because the Monument is administered as a component of the National Wildlife Refuge System, the legal mandates and policies that apply to any national wildlife refuge apply to the Monument. The Proclamation directs the DOE and the Service to protect and conserve the area's native plant communities, specifically recognizing the area's biologically diverse shrub steppe ecosystem (USFWS 2008, pp. 1.21, 3.5). The DOE manages approximately 11,716 ha (29,000 ac) of land within the Monument and retains land surface ownership or control on all Monument acreage. Thus, the Service and DOE have joint management responsibility for the Monument.
The parcel of land containing Umtanum desert buckwheat is on part of what was historically called the McGee Ranch, a historical homestead area of more than 364 ha (900 ac) within the greater Hanford installation. Management of this parcel has been retained by DOE due to unresolved issues with contaminants. This is expected to be resolved over time, and management conveyed to the Monument, since this area is not essential to the operation of the Hanford facility. Umtanum desert buckwheat and White Bluffs bladderpod both occur in narrow, linear bands on bluffs above and on opposite sides of the Columbia River. The populations are approximately 15 kilometers (km) (9 miles (mi)) apart, and although relatively near to each other, their habitat has a widely disparate geologic history and subsequent soil
Umtanum desert buckwheat is a long-lived, woody perennial plant that forms low mats. Individual plants may exceed 100 years of age, based on counts of annual growth rings on cross sections of recently dead plants. Growth rates are also extremely slow, with stem diameters increasing an average of only 0.17 millimeters (mm) (0.007 in) per year (The Nature Conservancy (TNC) 1998, p. 9; Dunwiddie
In 1995, Florence Caplow and Kathryn Beck resumed large-scale rare plant surveys on the Hanford Site that were initiated in 1994 by TNC and the DOE, as part of the Hanford Biodiversity Project. Two previously undescribed plant taxa were discovered, including Umtanum desert buckwheat (Caplow and Beck 1996, p. 5). The species was fully described in Reveal
Umtanum desert buckwheat was discovered in 1995 during a botanical survey of the Hanford installation (Reveal
The Lolo Flow contains higher titanium dioxide and lower iron oxide than the neighboring Rosalia Flow, also of the Priest Rapids Member. The flow top material commonly has a high porosity and permeability and has weathered to pebble and gravel-sized pieces of vesicular basalt (Reveal
Preliminary counts indicate that seed set occurs in approximately 10 percent of flowers observed, potentially limiting reproductive capacity. Based on a pollinator exclusion study (Beck 1999, pp. 25–27), the species is probably capable of at least limited amounts of self-pollination, although the percentage of seed set in the absence of pollinators appears to be low. A variety of insect pollinators were observed on Umtanum desert buckwheat flowers, including ants, beetles, flies, spiders, moths and butterflies (TNC 1998, p. 8). Wasps from the families Vespidae and
Common perennial plant associates of Umtanum desert buckwheat include
The only known population of Umtanum desert buckwheat occurs along the top edges of the steep slopes on Umtanum Ridge, a wide mountain ridge in Benton County, Washington, where it has a discontinuous distribution along a narrow (25–150 m (82–492 ft) wide by 1.6 km (1 mi) long) portion of the ridge (Dunwiddie
It is unknown if the prehistorical distribution of Umtanum desert buckwheat was different than the species' current distribution, but it is likely the species has been confined to this location during at least the last 150 years, as annual growth ring counts from fire-killed plants revealed individual ages in excess of 100 years. Individual plants with greater stem diameters (and, therefore, presumably older) are present, which supports the 150-year minimum locality occupation estimate.
The only known population of Umtanum desert buckwheat was fully censused (an accounting of the number of all individuals in a population) in 1995, 1997, 2005, and 2011 (see Table 1). In 1995, researchers counted 4,917 living individual plants, and in 1997, researchers counted 5,228 individuals (Dunwiddie
After a 1997 wildfire burned through a portion of the population, a subsequent count found 5,228 living and 813 dead individual plants. A minimum of 75 percent of the 813 dead individual plants observed died as a direct result of the fire (Dunwiddie
In 2005, researchers reported 4,408 living plants (Caplow 2005, p. 1), which represents a 15 percent decline in the population over an 8-year period. However, this result likely reflects some variability in how the census was performed over the years since the species was discovered in 1995. On July 12, 2011, a complete population census was conducted, which recorded 5,169 living individuals. This was somewhat higher than average, which could be attributable to a more thorough census, the identification of plant clusters not previously documented, and the recording of larger clumps as containing more than one individual plant. These clumps were likely counted as individual plants in previous counts (Arnett 2011a, pers. comm.).
Demographic monitoring of the largest subpopulation within the main population, commenced in 1997, and demonstrated an average 2 percent annual mortality of adult flowering plants. During the 9 years of monitoring, only 4 or 5 seedlings have been observed to survive beyond the year of their germination (Kaye 2007, p. 5). Since 2007, the demographic monitoring plots continue to reflect population declines and minimal recruitment (Arnett 2011b, pers. comm.). Dunwiddie
An unpublished draft population viability analysis (PVA) was recently completed by Thomas Kaye (2007, p. 5), based on 9 years of demographic data. A PVA is a quantitative analysis of population dynamics, with the goal of assessing the risk of extinction of a species. The 2007 study, which took into account observed environmental variability, determined there was little or no risk of a 90 percent population decline within the next 100 years; an approximate 13 percent chance of a decline of 50 percent over the next 50 years; and a 72 percent chance of a 50 percent decline within the next 100 years. The PVA concluded the decline is gradual, consistent with the decline noted by Caplow (2005, p. 1) between 1997 and 2005, and will likely take several decades to impact the population (Kaye 2007, p. 7). Although census data indicates more individuals in 2011 compared to the number of individuals in 1995 and 2005, this increase likely reflects some variability in how the census was performed. The inflorescence for Umtanum desert buckwheat consists of a cluster of flowers arranged on a main stem or branch. As stated earlier, the fact that the 2011 census was somewhat higher than previous plant counts may be attributable to the identification of plant clusters not previously documented, or individually counting plants present in plant clusters (rather than counting the cluster itself as one plant) (Arnett 2011a, pers. comm.). Since 1995, numerous surveys have been conducted at other locations within the lower Columbia River Basin, within every habitat that appears to be suitable for Umtanum desert buckwheat. However no other populations or individuals have been found.
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants (Lists). Under section 4(a)(1) of the Act, we may list a species based on any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Individual analyses of the above factors have been completed for both Umtanum desert buckwheat and White Bluffs bladderpod and are discussed below.
Caplow and Beck (1996, pp. 40–41) and other studies indicate that threats to Umtanum desert buckwheat and its habitat are primarily due to wildfire and associated firefighting activities (Beck 1999, pp. 27–29; Dunwiddie
Wildfire: Fire may be the primary threat to Umtanum desert buckwheat, and it is likely to become an even greater threat if the frequency or severity of fires increases (TNC 1998 p. 9; Dunwiddie
In mid-August 1984, approximately 80,800 ha (200,000 ac) both on and off the Hanford Site were burned in a fire that expanded westward 20 miles during a 24-hour period. The 1984 fire was initiated by a lightning strike on private land (DOE 2000, p. 3–1). During the summer of 1997, a fire escaped from the Yakima Training Center (U.S. Department of the Army) and traveled down the ridge occupied by Umtanum desert buckwheat. The fire burned on all sides and partially through the population, which caused considerable mortality of adult plants (Dunwiddie
Umtanum desert buckwheat appears to be intolerant of fire, and plants were easily killed. Even plants that were singed but not visibly charred appeared to be negatively affected, and many died the year following the fire. The fire did not stimulate vigorous new growth on established plants or sprouting from the plants' root crowns, which is sometimes observed with other species. In addition, there was no apparent flush of seedlings the following spring. Based on this lack of regeneration, or resprouting from burned plants, the species does not appear to be fire-tolerant (Dunwiddie
Fire Suppression Activities: In addition to wildfire itself, fire suppression activities could present a threat to the species if they were to occur within the population, since this species appears to be highly sensitive to any physical damage (see discussion under off-road vehicles below). The Umtanum desert buckwheat population is located on a flat natural fire break of rocky soils above steep-slopes, where fire lines and firefighting equipment would tend to be concentrated (Whitehall 2012, pers. comm.; Newsome 2011, pers. comm.). Although fire suppression activities did not take place within the Umtanum desert buckwheat population in response to the 1997 fire, the surrounding area is at high risk of wildfire from human and natural (lightning) ignition sources. The Service's fire program statistics (see Table 2) indicate a recurrence of wildfire events within Monument lands, which would be anticipated to continue.
The 2001 Hanford Reach Wildlife Fire Management Plan prescription for this area states that “except on existing roads, the use of any equipment (including light engines) within
This threat appears to have been reduced since direct access to the site has been gradually fenced off over time, the site has been marked with prohibited entry signage, and consistent enforcement is taking place. Although unauthorized access is prohibited, there is a potential for trespass since an open road is located approximately 0.5 km (0.3 mi) (slope distance) below the population through lands commonly used for recreation. However, a fence is present between the road and the Umtanum desert buckwheat population, which should further discourage ORV or hiker trespass incidents. Based on the available evidence, we have no substantive information that would indicate ORV or hiking activities represent ongoing threats to the species, provided current security and boundary integrity efforts are maintained. We will continue to monitor these activities as additional information becomes available.
Based on the information above, we find that specific activities discussed under Factor A: The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range present a threat to Umtanum desert buckwheat and its habitat. These include wildfire, nonnative plant fuel sources, and potentially wildfire suppression activities. Trespassing by off-road vehicles, hikers, and mineral prospectors are not considered ongoing threats at this time, based on permit requirements, access restrictions, boundary fencing, signage, and enforcement actions that are in effect for the area where this population occurs.
The regulations at 50 CFR 27.51 prohibit collecting any plant on any national wildlife refuge without a special use permit. Evidence of overutilization has not been documented since the discovery of Umtanum desert buckwheat in 1996. In order to maintain a secure source for seed and provide some assurance of maintaining the genome of Umtanum desert buckwheat over time, Berry Botanic Garden in Portland, Oregon, has collected and stored several seed accessions for the species. The facility currently has 401 seeds that were collected in 1997, and 1,108 seeds collected in 2001 and 2002 from an unknown number of plants (Gibble 2011, pers. comm.). Based on a thorough
Evidence of disease has not been documented in Umtanum desert buckwheat; however, predation of seeds by ants and removal of flower heads by an unknown species has been observed by researchers during demographic monitoring trips.
Researchers from The Nature Conservancy observed western harvester ants (
Because ants have been observed moving on and between flowers, they may also be contributing to the pollination of Umtanum desert buckwheat. Whether seed predation by ants is a significant threat to the species based on its current demographic status, or to what degree the threat is offset by potential benefits of pollination is unclear. During the 2011 census of Umtanum desert buckwheat, numerous flower heads that had been clipped off and were lying on top of or very near the plants were observed. The species responsible is unknown, although there was no evidence of mutilation or consumption of the flower structure (Arnett 2011c, pers. comm.). As stated earlier, no Umtanum desert buckwheat seedlings have been observed successfully germinating or becoming established near ant colonies. Because seed predation and the removal of flowering structures could significantly reduce the reproductive potential of the species, which is already in gradual decline based on the results of the PVA, we consider these activities to be ongoing threats to Umtanum desert buckwheat. We are unaware of any other disease or predation interactions that represent potential threats to this species.
Umtanum desert buckwheat is designated as endangered under the State of Washington's list of endangered, threatened, and sensitive vascular plants (WDNR 2011a, p. 5). The State of Washington's endangered, threatened, and sensitive plant program is administered through the Washington Natural Heritage Program (WNHP), which was created to provide an objective basis for establishing priorities for a broad array of conservation actions (WDNR 2011b, p. 2). Prioritizing ecosystems and species for conservation offers a means to evaluate proposed natural areas and other conservation activities (WDNR 2011b, p. 3). The WNHP is a participant in the Arid Lands Initiative, which is a public/private partnership attempting to develop strategies to conserve the species and ecosystems found within Washington's arid landscape. The WNHP assists in identifying conservation targets, major threats and potential strategies to address them (WDNR 2011b, p. 4). The DOE does not have a rare plant policy that provides specific protection for the species, and presently retains management responsibility for the lands where Umtanum desert buckwheat occurs. Once contaminant issues are resolved in this area, management responsibility will be conveyed to the Service, as a part of the Hanford Reach National Monument.
Agricultural development and livestock grazing reduced the light fuels that would normally carry a fire, and allowed nonnative invasive species like cheatgrass to increase (USFWS 2008, p. 3–15). The establishment of highly flammable cheatgrass within the Umtanum desert buckwheat population increases competition for space and moisture, and the likelihood that a wildfire could negatively impact the species. As fires become larger, the opportunity for seed dispersal is also increased as nonnative species invade burned areas. Nonnative species like cheatgrass can be dispersed in several ways, including long-distance dispersal facilitated by humans and animals. The barbed florets are ideally adapted to being picked up by clothing, feathers, and fur. Seeds can also be dispersed by machinery or vehicles. Animals may carry cheatgrass seed in their feces and hooves, and seed-caching rodents and harvester ants can disperse seeds intermediate distances through caching activity. Cropland, particularly fields of winter wheat and dryland hay, may also be potential seed sources to nearby natural areas and rangelands, as cheatgrass is a common weed in these crops (
The Hanford Fire Department maintains four fire stations on the Hanford Reservation (USFWS 2001, Appendix D, p. 74). The Service and the Hanford Fire Department have entered into a cooperative agreement under which either organization can provide firefighting support (USFWS 2001, Appendix D, p. 75) on lands under the jurisdiction or responsibility of the other party (DOE 2011, p. 84). The concept of closest forces is the guiding principle of initial attack suppression. This agreement does not provide specific conservation measures for the protection of Umtanum desert buckwheat, but does acknowledge the presence of plants unique to the site. The objective for this area states that “except on existing roads, the use of any equipment (including light engines) within
Numerous wildland fires occur annually on lands in and surrounding the Hanford Reach National Monument/Saddle Mountain National Wildlife Refuge. Many are human-caused resulting from vehicle ignitions from roads and highways, unattended
All collecting is prohibited on the Monument, including antlers, bones, rocks, artifacts, and plant life. Regulations also prohibit fires on Monument lands (Hanford Reach National Monument Hunting Regulations, 2011). The Revised Hanford Site 2011 Wildland Fire Management Plan (DOE 2011, p. 176) addresses Umtanum desert buckwheat briefly in a specific accounting of sensitive resources located on the site. The plan states that “due to the sensitive nature of the biology of the Hanford Site, an on-call Mission Support Alliance biologist will be requested to assist the command staff in protecting the environment during suppression efforts.” This requirement does not remove the wildfire threat to the species, but may make a negative incident less probable.
The 1997 wildfire initiated by the U.S. Army Yakima Training Center fire resulted in mortality to 10–20 percent of the population (see Factor A and Table 2). The threat of wildfire originating on the nearby U.S. Army Yakima Training Center and spreading to the Umtanum desert buckwheat site remains, as does the potential for ignition to occur along the BPA transmission line corridor, which crosses the population. Fire could also originate below the Umtanum desert buckwheat site on China Bar and rapidly burn upslope, since this area is commonly used by recreationists. The Hanford Reach National Monument Comprehensive Conservation Plan acknowledges that wildland fire will be suppressed when possible, suppression techniques will be designed to minimize surface disturbance in the vicinity of sensitive resources, and fire control policies will be implemented to reduce the risk of human-caused wildland fire (USFWS 2008, p. 4–8). However, based on the recent wildfire history and acreage affected (see Table 2), fire planning documents are not able to address all possible scenarios. In addition, numerous agencies must coordinate firefighting on this landscape, ignitions from recreationists remain a risk, and timely and effective initial firefighting responses may be difficult. For example, before it was contained, the 24 Command Wildfire (discussed in Factor A above) charred nearly 66,256 ha (164,000 ac) of land both on and off the Hanford site, even though the Hanford Fire Department arrived on scene approximately 20 minutes after the incident was reported. At that time the fire was approximately 4 ha (10 ac) in size (DOE 2000, pp. ES–2–ES–3).
Although the WNHP and Monument CCP are important tools for identifying conservation actions that would benefit Umtanum desert buckwheat, these programs do not appear to have been designed to function as regulatory mechanisms that would eliminate threats to the species. In addition, a fire management plan is necessarily designed to be a response, rather than prescriptive strategy, since wildfires are unpredictable with regard to their location and severity. Accordingly, the impact of wildfire to Umtanum desert buckwheat is not a threat that can be eliminated by regulatory mechanisms, because of the many potential ignition scenarios on the lands within and surrounding the area where the species occurs. Therefore, based on our review of the best available scientific and commercial information, we do not consider the inadequacy of existing regulatory mechanisms to be an ongoing threat to White Bluff's bladderpod.
Umtanum desert buckwheat has a small population size and distribution, and suffers from low recruitment (Kaye 2007, p. 3; Caplow 2005, p. 3). These features make it particularly susceptible to potentially changing climate conditions. For instance, regional climate change models indicate a rise in hotter and drier conditions, which may increase stress on individuals as well as increase wildfire frequency and intensity.
The lack of establishment and survival of seedlings is a threat, as few plants are becoming established as replacements for plants that die. Several factors may be responsible, such as exposure of young plants to high winds and temperatures and very low spring and summer precipitation. Other possible factors include low seed production, low seed or pollen viability, low seedling vigor and survival, impacts to plant pollinators or dispersal mechanisms, and flowering structure removal/insect predation of seeds (as described under Factor C). There has been some success in germinating and growing Umtanum desert buckwheat in containers, which may indicate that the failure to establish seedlings in the wild may not be due to low fertility, but may be related to conditions necessary for survival after germination (Arnett 2011c, pers. comm.). Long-term monitoring and research may determine the cause of the population's skewed size distribution. A seed bank study has shown that viability of buried seed decreases dramatically after the first year, suggesting a very small and short-lived seed bank for Umtanum desert buckwheat (Caplow 2005, p. 6).
Considered in total, these factors likely combine effects to create negative recruitment for Umtanum desert buckwheat. This theory is supported by the findings of Kaye (2007, p. 5), that the population appears to be in a gradual decline of approximately
Various types of changes in climate can have direct or indirect effects on
At a regional scale, two different temperature prediction models are presented in Stockle
The projected warming trend will increase the length of the frost-free period throughout the State, increasing the available growing season for plants, which will continue to be limited in eastern Washington by water availability, and likely by extreme heat events in some instances. This will continue the trend observed from 1948 to 2002, during which the frost-free period has lengthened by 29 days in the Columbia Valley (Jones, 2005
Given the importance of water availability to plants, precipitation change needs to be included in predictions of climate change effects on invasive plants (Bradley 2009, p. 197). Regional climate models suggest that some local changes in temperature and precipitation may be quite different than average regional changes projected by the global models (Littell
Littell
We do not know what the future holds with regard to climate change, however, this species has a very limited distribution, small population size, and low recruitment. Despite the lack of site-specific data, increased average temperatures and reduced average rainfall may further influence the current decline of the species and result in a loss of habitat. Hotter and drier summer conditions may also increase the frequency and intensity of fires in the area, as cheatgrass and other invasive plants would become better competitors for resources than Umtanum desert buckwheat. Alternatively, warmer and wetter winter conditions could potentially benefit the species by extending the growing season and providing additional moisture to the soil in the spring. However, if the frequency, intensity, and timing of the predicted changes in climate for eastern Washington are not aligned with the phenology of Umtanum desert buckwheat, the survival and reproduction of the species could be threatened over time. Accordingly, although climate change represents a potential ongoing threat based on the best available information, more thorough investigations are needed to better understand the potential impacts of climate change to this species.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to Umtanum desert buckwheat (see Table 3). The 1997 fire that escaped from the Yakima Training Center killed 813 plants, or approximately 10–20 percent of the population (Dunwiddie
As described above, Umtanum desert buckwheat is currently at risk throughout all of its range due to ongoing threats of habitat destruction and modification (Factor A), predation (Factor C), and other natural or manmade factors affecting its continued existence (Factor E). Specifically, these factors include the existing degradation or fragmentation of habitat resulting from wildfire, nonnative invasive vegetation that provides fuel for wildfires, predation of seed and flower structures, and potentially changing environmental conditions resulting from global climate change (although its magnitude and intensity are uncertain). Wildfire suppression activities could also threaten the species if they were to occur within the population, since this species appears to be highly sensitive to any physical damage. However, whether this potential threat would actually occur is unknown, given the unpredictable nature of wildfire events. Impacts to Umtanum desert buckwheat from livestock moving through the population, off-road vehicle use, hikers, and prospecting are conceivable, but unlikely, provided DOE livestock movement permit conditions are complied with, access to the site is effectively controlled, boundary integrity is monitored and maintained, and enforcement actions are taken as needed, each of which is presently occurring.
The area where Umtanum desert buckwheat is found is at high risk of frequent fire and is fully exposed to the elements. The population is extremely small, isolated, and in slow but steady decline, notwithstanding the somewhat higher count in the 2011 population census (which may be attributable to the way individual plants were counted as described earlier). These population demographics make the species particularly susceptible to extinction due to threats described in this proposal. The magnitude of the wildfire threat is high; other threats are moderate to low in magnitude. Because of the limited range of Umtanum desert buckwheat, any one of the threats may threaten its continued existence at any time. Since these threats are ongoing, they are also imminent.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” Since Umtanum desert buckwheat is highly restricted in its range and the threats occur uniformly throughout its range, we assessed the status of the species throughout its entire range. The threats to the survival of the species occur throughout the species' range and are not restricted to any particular significant portion of that range, and the number of individuals in the single population is very small and declining. Some threats are more severe than others, but the population is being affected by small population size, limited range, low recruitment, invasive cheatgrass presence that can fuel wildfire, wildfire (Table 2), seed predation, and flower predation.
Our assessment and proposed determination applies to the species throughout its entire range. In this regard, we find that Umtanum desert buckwheat is likely to become in danger of extinction throughout its entire range, based on the immediacy, severity, and scope of the threats described above (see Table 3). The Hanford Reach National Monument Comprehensive Conservation Plan was developed to protect and conserve the biological, geological, paleontological, and cultural resources described in the Monument Proclamation by creating and maintaining extensive areas within the Monument free of facility development (USFWS 2008, p. v). Several management objectives are identified that could benefit the Umtanum desert buckwheat population; these include treating invasive species and restoring upland habitat (USFWS 2008, pp. 19–22).
As stated earlier, the population is in a very gradual decline, which will take several decades to accumulate significant impacts (Kaye 2007, p. 5). Given the fact that (1) the population is in a very gradual decline; (2) the management objectives of the CCP will be beneficial to the species; (3) access is prohibited without special authorization from the DOE; (4) security fencing surrounds the population; (4) entry prohibited signs are in place; and (5) boundary enforcement is ongoing, the species is not presently in danger of extinction throughout all or a significant portion of its range. Therefore, on the basis of the best available scientific and commercial information, we propose listing Umtanum desert buckwheat as threatened in accordance with sections 3(6) and 4(a)(1) of the Act.
White Bluffs bladderpod is a low-growing, herbaceous, perennial plant with a sturdy tap root and a dense rosette of broad gray-green pubescent (having any kind of hairs) leaves (WDNR 2010). The species produces showy yellow flowers on relatively short stems in May, June, and July. The species inhabits dry, steep upper zone and top exposures of the White Bluffs area of the Hanford Reach at the lower edge of the Wahluke Slope. Along these bluffs, a layer of highly alkaline, fossilized cemented calcium carbonate (caliche) soil has been exposed (Rollins
Although specimens of this taxon were originally collected from a population in 1883, the plant material was in poor condition, no definitive identification could be made, and the plant was not recognized as a species at that time. The population was rediscovered in 1994, and was described and published as a species,
In a general paper on the taxonomy of
Rollins and Shaw (1973, entire), took a wide view of the degree of differentiation between species and subspecies (or varieties) of
Based on molecular, morphological, phenological, reproductive, and ecological data, the conclusions in Al-Shehbaz and O'Kane (2002, p. 322) and Caplow
The only known population of White Bluffs bladderpod is found primarily on near-vertical exposures of weathered, cemented, alkaline, calcium carbonate paleosol (ancient, buried soil whose composition may reflect a climate significantly different from the climate now prevalent in the area) (
Common associated plant species include:
Because of its recent discovery and limited range, little is known of the species' life-history requirements. In a presentation of preliminary life-history studies, Dunwiddie
In 1996, White Bluffs bladderpod was only known from a single population that occurred along the upper edge of the White Bluffs of the Columbia River in Franklin County, Washington. The population was described to occur intermittently in a narrow band (usually less than 10 m (33 ft) wide) along an approximately 17-km (10.6-mi) stretch of the river bluffs (Rollins
White Bluffs bladderpod is still known only from the single population that occurs along the upper edge of the White Bluffs of the Columbia River, Franklin County, Washington, although the full extent of the species' occurrence has now been described. Most of the species distribution (85 percent) is within lands owned by the DOE and
The size of the population varies considerably between years. Censuses in the late 1990s estimated more than 50,000 flowering plants in high population years (Evans
The high variability in estimated population numbers was confirmed by the 2011 data, which documented the highest population estimate since monitoring began in 1997, even though it immediately followed the year representing the lowest estimate (2010). May 2011 was identified by the Hanford Meteorological Station (
Caplow and Beck (1996, p. 42) and others state that the threats to White Bluffs bladderpod and its habitat are primarily landslides caused by subsurface water seepage, invasive species, and ORV use (TNC 1998, p. 5; Evans
In the 1960s, the Washington State Department of Game (currently known as the Washington Department of Fish and Wildlife) constructed artificial wetlands using irrigation water delivered to unlined wastewater ponds and canals in the vicinity of the White Bluffs for wildlife enhancement (Bjornstad 2006, p. 1). Water entered a preferential pathway for movement along a buried paleochannel, which connected the artificial wetlands with the White Bluffs escarpment near Locke Island only 4.8 km (3 mi) to the southwest. Water percolating from artificial wetlands moved quickly down through highly transmissive flood deposits, and then encountered the low-permeability soils of the Ringold Formation. The water then flowed laterally along the impermeable layer, and discharged through springs along the White Bluffs. Where they were wet, the unstable Ringold Formation sediments have slumped and slid along the steep White Bluffs escarpment (Bjornstad and Fecht 2002, p. 14). Although water flow to the pond has been halted due to concerns about landslides and the artificial wetlands no longer exist, water continues to seep out along the bluffs, apparently due to the large volume that accumulated in the underlying sediments over years of infiltration (Bjornstad and Fecht 2002, p. 15).
The erosional processes at work in the northern White Bluffs vicinity are somewhat different than those of the southern White Bluffs area, where White Bluffs bladderpod occurs. A record of slumping exists along the White Bluffs, beginning with periodic high-recharge, Ice Age flood events. Since the Pleistocene Epoch, landsliding on the southern bluffs where White Bluffs bladderpod is found was dormant until the 1970s, when increased infiltration of moisture from agricultural activities caused a resurgence of slumping (Bjornstad and Peterson 2009b; Cannon
The entire population of White Bluffs bladderpod is down-slope of irrigated agricultural land and is at risk of landslides induced by water-seepage. The threat is greater in the southern portion of the species' distribution where irrigated agriculture is closest in proximity, and in several locations directly adjacent to the bluffs (Bjornstad
In addition, wildfire also impacts pollinator communities by directly causing mortality, altering habitat, and reducing native plant species diversity. Since an increase in cheatgrass was observed within the White Bluffs bladderpod population and the surrounding areas affected by the 2007 fire, we presume a larger scale fire event would have similar results. Because of its invasive nature (see discussion below), cheatgrass is able to outcompete native species and, once established, increases wildfire fuel availability. White Bluffs bladderpod may be somewhat fire-tolerant based on the post-2007 wildfire response monitoring. However, the establishment and growth of highly flammable cheatgrass increases the likelihood of fire as well as its intensity, potentially elevating the risk of impacting the White Bluffs bladderpod population in the future. Given the invasive nature of cheatgrass, the increased fire frequency and wildfire history within and around the Monument (see Table 2), the increased fuel that becomes available for future wildfire events as cheatgrass proliferates, and observations that cheatgrass presence increased within and around the population after the 2007 wildfire, wildfire is considered to be an ongoing threat to White Bluffs bladderpod.
An infestation of yellow starthistle (
However, the ability to avoid fire suppression impacts to the White Bluffs bladderpod population during future wildfire events would take into account the location, direction, magnitude, and intensity of the event, firefighter safety considerations, and proximity of the fire to the plant population. If a wildfire were to occur in the surrounding area, protection of the White Bluffs bladderpod population may not be possible if wildfire circumstances necessitate establishing fire lines or response equipment staging areas within or near the population. A potential consequence of fire or any soil disturbance during fire suppression activities is the displacement of native vegetation by nonnative weedy species, which increases intraspecific competition for resources and increases the accumulation of fuels. When these conditions occur, they contribute to increases in wildfire frequency and severity in a frequent fire landscape. Accordingly, although the need for wildfire suppression activities near or within the White Bluffs bladderpod population is unpredictable, this activity is considered a potential threat to this species based on the Monument's wildfire history (see Table 2).
Based on the information above, we find that specific activities discussed under Factor A: The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range present a threat to White Bluffs bladderpod and its habitat. These activities include landslides, invasive species, wildfire, off-road vehicle use, and potentially fire suppression activities.
The regulations at 50 CFR 27.51 prohibit collecting any plant material on any national wildlife refuge. There is no evidence of commercial, recreational, scientific, or educational use of White Bluffs bladderpod, other than occasional collection of relatively few specimens (
Based on our review of the best available scientific and commercial information, we find that overutilization for commercial, recreational, scientific, or educational purposes is not now a threat to White Bluffs bladderpod in any portion of its range and is not likely to become a significant threat in the future.
Evidence of disease has not been documented in White Bluffs bladderpod; however, predation of developing fruits and infestations on flowering buds has been observed.
White Bluffs bladderpod was added to the State of Washington's list of endangered, threatened, and sensitive vascular plants in 1997 (as
The DOE does not have a rare plant policy that provides specific protection for the species, and the Service manages DOE lands where White Bluffs bladderpod is found as a part of the Hanford National Monument. A comprehensive conservation plan (CCP) for the Monument has been completed that provides a strategy and general conservation measures for rare plants that may benefit White Bluffs bladderpod. This strategy includes support for monitoring, invasive species
A Spotlight Species Action Plan has been developed for White Bluffs bladderpod, which briefly describes the species and the major threats and identifies actions to conserve the species (USFWS 2009). These actions include working with adjacent landowners to restore, manage, and reduce threats to the population, installation of fencing to eliminate ORV use, invasive species studies and potential eradication efforts, seed collection for augmentation/restoration purposes, pollinator species studies, wildfire studies, and climate change studies. However, many of these actions have not been implemented as funding sources have not been identified (Newsome 2011, pers. comm.).
Numerous wildland fires occur annually on lands in and surrounding the Hanford Reach National Monument/Saddle Mountain National Wildlife Refuge. Many are human-caused, resulting from vehicle ignitions from roads and highways, unattended campfires, burning of adjacent agricultural lands and irrigation ditches, and arson. Fires of natural origin (lightning caused) also occur on lands within and adjacent to the monument/refuge (USFWS 2001, p. 171). Since wildfires are unpredictable with regard to their location and severity, a fire management plan is necessarily designed to be a response, rather than a regulatory strategy. The Wildland Fire Management Plan for the Monument is an operational guide for managing the Monument's wildland and prescribed fire programs. The plan defines levels of protection needed to promote firefighter and public safety, protect facilities and resources, and restore and perpetuate natural processes, given current understanding of the complex relationships in natural ecosystems (USFWS 2001, p. 9). The Monument CCP also has an educational and enforcement program in place that reduces the likelihood of human-caused wildfires.
Although the WHNP, Monument CCP, and Spotlight Species Action plans are important tools to identify conservation actions that would benefit White Bluffs bladderpod, they were not designed to function as regulatory mechanisms that would eliminate threats to the species. In addition, the impact of wildfire is not a threat that is susceptible to elimination by regulatory mechanisms, because of the many potential ignition scenarios on the lands within and surrounding the area where White Bluffs bladderpod occurs.
An invasive plant species inventory and management plan has been developed for the Monument (Evans
Although the Hanford Monument Proclamation prohibits off-road vehicle (ORV) use, ORV use has been documented in the publicly accessible Wahluke Unit (where White Bluffs bladderpod occurs). Some of these violators enter the Monument from long-established access routes from adjacent private lands (USFWS 2002, p. 17), causing physical damage to plants and creating ruts in slopes that increase erosion (USFWS 2008, p. 3–57). Although ORV trespass incidents have been documented on Monument lands, and are affecting some White Bluffs bladderpod individuals, we have no information indicating they are occurring with significant frequency or are affecting a substantial portion of the population. ORV use has also been documented on private property, where the southern extent of the population occurs. We have no information that would indicate ORV trespass incidents on Monument lands are taking place over a large area within the White Bluffs bladderpod population, and there are apparently no constraints on ORV use on private property. Accordingly, we do not believe the ORV threat to White Bluffs bladderpod identified in Factor A is being exacerbated because of existing regulations that are inadequate.
As described under Factor A, groundwater movement from adjacent, up-slope agricultural activities has caused mass-failure landslides caused by subsurface water seepage, which is a threat to White Bluffs bladderpod. This threat is greatest in the southern portion of the species' distribution where irrigated agriculture is close in proximity, and in several locations directly adjacent to the bluffs (Bjornstat
Based on our review of the best available scientific and commercial information, we do not consider any of the threats described above under Factor D to be subject to elimination by existing regulatory mechanisms. Therefore, the inadequacy of existing regulatory mechanisms does not represent an ongoing threat to White Bluff's bladderpod.
Regional climate change modeling indicates a potential threat to White Bluffs bladderpod if hotter and drier conditions increase stress on individual plants, or increase the effects of wildfire frequency and intensity (See discussion under Factor A). As described for Umtanum desert buckwheat above (see Factor E), the potential impacts of a changing global climate to White Bluffs bladderpod are presently unclear. All regional models of climate change indicate that future climate in the Pacific Northwest will be warmer than the past, and, together, they suggest that rates of warming will be greater in the 21st century than those observed in the 20th century. Projected changes in annual precipitation, averaged over all models, are small (+1 to +2 percent), but some models project an enhanced seasonal precipitation cycle with changes toward wetter autumns and winters and drier summers (Littell
We do not know what the future holds with regard to climate change. Despite a lack of site-specific data, increased average temperatures and reduced average rainfall may promote a decline of the species and result in a loss of habitat. Hotter and drier summer conditions could increase the frequency and intensity of fires in the area as cheatgrass or other invasive plants compete for resources with White Bluffs bladderpod. However, if summer precipitation were to increase, some native perennial shrubs and grasses could be more competitive if they are able to use water resources when cheatgrass or other nonnative species are dormant (Loik, 2007 in Bradley 2009, pp. 204–205). Nevertheless, if the frequency, intensity, and timing of the predicted changes in climate for eastern Washington are not aligned with the phenology of White Bluffs bladderpod, the survival and reproduction of the species could be threatened over time. Although climate change represents a potential threat based on the available information, more thorough investigations are needed to determine the degree to which climate change may be affecting the species.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to White Bluffs bladderpod (see Table 5). Under the Act and our implementing regulations, a species may warrant listing if it is threatened or endangered throughout all or a significant portion of its range. We assessed the status of White Bluffs bladderpod throughout its entire range and found it to be highly restricted within that range. The threats to the survival of the species occur throughout the species' range and are not restricted to any particular significant portion of that range. Accordingly, our assessment and proposed determination applies to the species throughout its entire range.
Approximately 35 percent of the known range of the species has been moderately to severely affected by landslides, resulting in an apparently permanent destruction of the habitat. The entire population of the species is down-slope of irrigated agricultural land, the source of the water seepage
Fire suppression activities could potentially be as great a threat as the fire itself, given the location of the species on the tops of bluffs where firelines are often constructed. In addition, firefighting equipment and personnel are commonly staged on ridge tops for safety and strategic purposes (Whitehall 2012, pers. comm.), although this has not been necessary within the White Bluffs bladderpod population to date. During a wildfire response effort in 2007, responders were able to avoid damage to White Bluffs bladderpod habitat during suppression activities by limiting soil disturbance to areas outside a 50–100 m (164–228 ft) buffer around the population. The threats to the population from landslides, ORV use, and potentially fire suppression (contingent on location, safety, the ability to avoid, and other particulars) are ongoing, and will continue to occur in the future. In addition, invasion by nonnative plants is a common occurrence post-fire in the Hanford vicinity, and will likely spread or increase throughout the areas that were burned during the 2007 fire that occurred in the area of the existing population or in future events.
As described above, White Bluffs bladderpod is currently at risk throughout all of its range due to ongoing threats of habitat destruction and modification (Factor A), and other natural or manmade factors affecting its continued existence (Factor E). Specifically, these factors include the existing degradation or fragmentation of habitat resulting from landslides due to water seepage, invasive species establishment, ORV use, wildfire, potential fire suppression activities, and potential global climate change. Most of these threats are ongoing and projected to continue and potentially worsen in the future. The population is small and apparently restricted to a unique geological setting, making it particularly susceptible to extinction due to threats described in the proposed rule. The magnitude of the threat of wildfire is high, while other threats are moderate to low in magnitude (see Table 5). Because of the limited range of the species, any one of the threats could affect its continued existence at any time.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that White Bluffs bladderpod is likely to become endangered throughout all or a significant portion of its range within the foreseeable future, based on the immediacy and scope of the threats described above and, therefore, meets the definition of a threatened species under the Act. There are no portions of the species' range where threats are geographically concentrated such that the species is in danger of extinction within that portion of its range. White Bluffs bladderpod is primarily surrounded by Federal ownership, where the lands are managed as an overlay national wildlife refuge for general conservation purposes.
The Hanford Reach National Monument Comprehensive Conservation Plan was developed to protect and conserve the biological, geological, paleontological, and cultural resources described in the Monument Proclamation by creating and maintaining extensive areas within the Monument free of facility development (USFWS 2008, p. v). Several management objectives are identified that could benefit the White Bluffs bladderpod population, include treating invasive species and restoring upland habitat (USFWS 2008, pp. 19–22). The species is also fairly numerous and continuous where it occurs over 17 km (10.6 mi), and the threats are acting with uniform magnitude, intensity, or severity throughout the species' distribution. Since 85 percent of the species distribution is on Federal lands managed as a national wildlife refuge for conservation purposes, and refuge management plans are in place to help protect and conserve the species, we do not believe White Bluffs bladderpod is presently in danger of extinction throughout all or a significant portion of its range. Therefore, on the basis of the best available scientific and commercial information, we propose listing White Bluffs bladderpod as threatened in accordance with sections 3(6) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, the development of a recovery plan (including implementation of recovery actions), requirements for Federal protection, and prohibitions against certain practices. Recognition through listing actions results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection measures required of Federal agencies and the prohibitions against certain activities involving listed wildlife are discussed in Effects of Critical Habitat Designation and are further discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed, preparation of a draft and final recovery plan, and revisions to the plan as significant new information becomes available. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The recovery plan identifies site-specific management actions that will achieve recovery of the species, measurable criteria that determine when a species may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribal, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Washington would be eligible for Federal funds to implement management actions that promote the protection and recovery of Umtanum desert buckwheat and White Bluffs bladderpod. Information on our grant programs that are available to aid species recovery can be found at:
Although Umtanum desert buckwheat and White Bluffs bladderpod are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Department of Energy, Department of Defense, U.S. Fish and Wildlife Service, Bureau of Reclamation, Bureau of Land Management, Army Corps of Engineers, and construction and management of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all threatened plants. All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.61, apply. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce the species to possession from areas under Federal jurisdiction. Seeds from cultivated specimens of cultivated plants are exempt from these prohibitions provided that their containers are marked “Of Cultivated Origin.” Certain exceptions to the prohibitions apply to agents of the Service and State conservation agencies. At this time, there are no existing regulatory mechanisms that provide protection for State-listed plants in Washington, even if endangered. In addition, since Umtanum desert buckwheat occurs entirely on Federal land, and White Bluffs bladderpod occurs predominantly on Federal land, all Hanford Reach National Monument regulations that have protective or conservation relevance to either species would be applicable.
It is our policy, as published in the
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened plant species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62 for endangered plants, and at § 17.72 for threatened plants. With regard to endangered plants, a permit must be issued for the following purposes: For scientific purposes or to enhance the propagation or survival of the species.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to our Washington Fish and Wildlife Office (see
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical and biological features
(a) Essential to the conservation of the species; and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use, and the use of, all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the Federal action agency's and the applicant's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species, and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that when combined compose the features essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its current range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we determine which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.
Habitat is often dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of the species, but are outside the critical habitat designation, will continue to be subject to: (1) Conservation actions we implement under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if certain actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts warrants otherwise.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when
There is no documentation of commercial or private collection of Umtanum desert buckwheat or White Bluffs bladderpod. Although that activity is identified as a possible but unlikely threat to the species, the significance of collection to the viability of the species' populations is not known. In the absence of a finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species.
The primary regulatory effect of critical habitat is the section 7(a)(2) requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. At this time, Umtanum desert buckwheat and White Bluffs bladderpod occur only on Federal, State, and private lands along the Hanford Reach of the Columbia River in Washington State. Lands proposed for designation as critical habitat would be subject to Federal actions that trigger section 7 consultation requirements. These include land management planning, Federal agency actions, and permitting by the Saddle Mountain National Wildlife Refuge/Hanford Reach National Monument. There may also be educational or outreach benefits to the designation of critical habitat. These benefits include the notification of lessees and the general public of the importance of protecting the habitats of both of these rare species.
In the case of Umtanum desert buckwheat and White Bluffs bladderpod, these aspects of critical habitat designation would potentially benefit the conservation of both species. Therefore, if the threat of commercial or private collection exists for either species, it is outweighed by the conservation benefits derived from the designation of critical habitat. We therefore find that designation of critical habitat is prudent for Umtanum desert buckwheat and White Bluffs bladderpod.
We also reviewed the available information pertaining to the biological needs of these species and habitat characteristics where they occur. This and other information represent the best scientific data available, and the available information is sufficient for us to identify areas to propose as critical habitat. Therefore, we conclude that the designation of critical habitat is determinable for both species.
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and the regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to propose as critical habitat, we consider the physical and biological features (PBF's) essential to the conservation of the species that may require special management considerations or protection. These may include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific PBF's required for Umtanum desert buckwheat and White Bluffs bladderpod from studies of each species' habitat, ecology, and life history as described above in the proposed listing rule. We have determined that the PBFs described below are essential for these species. The criteria used to identify the geographical location of the proposed critical habitat areas for both species is described following the
As required by section 4(b)(2) of the Act, in developing this proposed rule we used the best scientific data available to propose critical habitat for both Umtanum desert buckwheat and White Bluffs bladderpod. We reviewed available information that pertains to the habitat requirements of these species. In accordance with the Act and its implementing regulations at 50 CFR 424.12(e), we also consider whether designating additional areas outside those currently occupied as well as those occupied at the time of listing is necessary to ensure the conservation of the species. These sources of information included, but were not limited to:
1. Data used to prepare the proposed rule to list the species;
2. Information from biological surveys;
3. Peer-reviewed articles, various agency reports and databases from the Washington Department of Natural Resources Natural Heritage Program and the Hanford National Monument/Saddle Mountain National Wildlife Refuge;
4. Information from the U.S. Department of Energy and other governmental cooperators;
5. Information from species experts;
6. Data and information presented in academic research theses; and
7. Regional Geographic Information System (GIS) data (such as species occurrence data, land use, topography, aerial imagery, soil data, and land ownership maps) for area calculations and mapping.
The long-term survival and recovery of Umtanum desert buckwheat and White Bluffs bladderpod is dependent upon protecting existing populations by maintaining ecological function within these sites, including preserving the integrity of the unique soils and connectivity between occurrences to facilitate pollinator activity. It is also dependent on maintaining these areas free of habitat-disturbing activities, including trampling, the exclusion of invasive, nonnative plant species, and managing the risk of wildfire. Because the areas of unique soils cover a relatively small area within the larger shrub steppe matrix, we did not restrict the designation to individual occupied patches, but included adequate adjacent shrub steppe habitat to provide for ecosystem function. This contiguous habitat provides the requisite physical or biological features for both Umtanum desert buckwheat and White Bluffs bladderpod, including diverse native flowering plants and habitat to support pollinators, and provides the essential feature of habitat free from disturbances, such as invasive species and recreational trampling. We used the following criteria to select areas for inclusion in critical habitat: (a) The geographical areas containing the entire distribution of habitat occupied by Umtanum desert buckwheat and White Bluffs bladderpod at the time of the
The first step in delineating proposed critical habitat units was to identify all areas that contained Umtanum desert buckwheat or White Bluffs bladderpod populations, which was accomplished during the summer of 2011. We are proposing to designate critical habitat within and around all occurrences of both populations to conserve genetic variability. These areas are representative of the entire known historical geographic distribution of the species. We then analyzed areas outside the population to identify unoccupied habitat areas essential for the conservation of the species. The proposed designations take into account those features that are essential to Umtanum desert buckwheat or White Bluffs bladderpod, including the presence of unique soils, unique habitat conditions within the area, and the condition of the surrounding landscape features necessary to support pollination, and possibly other life-history requirements.
We do not know if the lack of pollinators is a limiting factor, but in the absence of other information and knowing that both species are largely insect-pollinated, we believe it is prudent to identify an area adjacent to the occupied areas as unoccupied critical habitat to support pollinator species. The outer boundary of the proposed critical habitat designation was primarily determined based on the flight distances of insect pollinators, which are essential to the conservation of both species. Using Geographical Information Systems (GIS), we included an area of native shrub steppe vegetation approximately 300 m (980 ft) around the population to provide habitat of sufficient quantity and quality to support Umtanum desert buckwheat and White Bluffs bladderpod. This boundary was selected because we believe it provides the minimum area needed to sustain an active pollinator community for both species, based on the best available scientific information (see Arnett 2011b; Evans pers. comm., 2001, discussed below). This distance does not include all surrounding habitat potentially used by pollinators, but provides sufficient habitat for those pollinators that nest, feed, and reproduce in areas adjacent to the occupied critical habitat areas.
Although Umtanum desert buckwheat and White Bluffs bladderpod are visited by a variety of likely pollinators, only one insect pollinator species has been verified to date; the bumblebee (
Because the population occurrences of Umtanum desert buckwheat and White Bluffs bladderpod are linear in arrangement, we established the occupied critical habitat areas by connecting the known coordinates for occurrences, using GIS. The mean width for the occupied areas was estimated based on monitoring and transect data compiled by species experts. The estimated mean width for Umtanum desert buckwheat was determined to be 30 m (100 ft), and 50 m (165 ft) for White Bluffs bladderpod. We then established a 300-m (980-ft) unoccupied critical habitat polygon surrounding the mean occupied habitat width to identify insect pollinator habitat that is essential for the conservation of both species. We then mapped the critical habitat unit boundaries for each of the two species based on the above criteria, using aerial imagery, 7.5 minute topographic maps, contour data, WDNR Natural Heritage and Washington Department of Transportation data to depict the critical habitat designation, gather ownership, and acreage information.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, other structures, tilled farm lands and orchards on private property, because such lands lack physical or biological features for Umtanum desert buckwheat and White Bluffs bladderpod. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Therefore, if the critical habitat is finalized as proposed, a Federal action involving such developed lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification, unless the specific action would affect the physical and biological features in the adjacent critical habitat.
Umtanum desert buckwheat is highly restricted in its distribution. The only known population occurs at elevations ranging between 340–400 m (1,115–1,310 ft) on flat to gently sloping substrate at the top edge of a steep, north-facing basalt cliff of Umtanum Ridge overlooking the Columbia River. Approximately 5,000 plants occur in a narrow band 1.6 km (1 mi) in length and generally less than 30 m (100 ft) wide (Reveal
Umtanum desert buckwheat is found exclusively on soils over exposed basalt from the Lolo Flow of the Wanapum Basalt Formation at the far southeastern end of Umtanum Ridge in Benton County, Washington. This type of landform in the lower Columbia Basin is determined by the underlying basalts, which may be exposed above the soil on ridge tops or where wind and water erode the fine soils away (Sackschewski and Downs 2001, p. 2.1.1). The Lolo flow surface material commonly has a high porosity and permeability. The cliff area has weathered to pebble- and gravel-sized pieces of vesicular basalt (basalt that contains tiny holes formed due to gas bubbles in lava or magma) and is sparsely vegetated where the species is found. It is unknown if the close association of Umtanum desert buckwheat with the lithosols of the Lolo Flow is related to the chemical
Therefore, based on the information above, we identify weathered Wanapum basalt cliffs, and adjacent outcrops, cliff breaks, and flat or gently sloping cliff tops with exposed pebble and gravel soils as a physical or biological feature essential to the conservation for Umtanum desert buckwheat.
The presence of unique soil structure and/or chemistry may determine where a rare plant species exists. Umtanum desert buckwheat is found exclusively on pebbly lithosol soils over exposed basalt from the Lolo Flow of the Priest Rapids Member of the Wanapum Basalt Formation. The flow surface material commonly has a high porosity and permeability and typically contains small (< 5 mm, (0.2 in)) crystals of the mineral olivine and rare (occasional) clusters of plagioclase crystals, and differs from the other members of the Wanapum Formation. Basalts of the Lolo Flow contain higher titanium dioxide and lower iron oxide than the neighboring Rosalia Flow, also of the Priest Rapids Member (Reidel and Fecht 1981, p. 3–13).
It is unknown if the distribution of Umtanum desert buckwheat prior to European settlement was different from the species' current distribution, but it is likely that the species has been confined to this location during at least the last 150 years, which indicates an isolated soil exposure, unique within the broader Columbia Basin landscape. The physiological and soil nutritional needs of Umtanum desert buckwheat are not known at this time. Other locations containing apparently suitable habitat have been intensively searched since the species' discovery in 1995, and no additional individuals or populations have been found. The factors limiting the species' distribution are unknown, but could be related to microsite differences (such as nutrient availability, soil microflora, soil texture, or moisture). Additional research is needed to determine the specific nutritional and physiological requirements for Umtanum desert buckwheat.
Therefore, based on the information above, we identify the pebbly lithosol talus soils derived from surface weathering of the Lolo Flow of the Priest Rapids Member of the Wanapum Basalt Formation as a physical and biological feature essential to the conservation for Umtanum desert buckwheat. These areas are sparsely vegetated, with less than 10 percent estimated total cover (including Umtanum desert buckwheat) within the population and less than 5 percent cover by species other than Umtanum desert buckwheat, and less than 1 percent nonnative or invasive plants (Arnett 2001, pers. comm.). Areas of sparse vegetation are required to minimize nonnative plant competition, minimize conditions that promote the accumulation of fuels, and provide for the recovery of the species.
The availability of insect pollinators is essential to conserve Umtanum desert buckwheat. Based on the results of a pollinator exclusion study, the species is probably capable of at least limited amounts of self-pollination, although the percentage of seedset in the absence of pollinators appears to be low (TNC 1998, p. 8; Reveal
Since pollination is essential to the conservation of Umtanum desert buckwheat, we evaluated alternatives for determining the effective pollinator distance for this species. Since specific known pollinators are mostly unknown for the species and the species is likely frequented by several pollinators, we investigated delineating an effective pollinator distance based on foraging distances of the species' only known pollinator, the bumble bee (
We next considered using the flight distances of solitary bees (individual, noncolonial bees) to determine the effective pollinator distance for the species. Numerous Families of this Order (Hymenoptera) have been observed in shrub steppe habitats within the Hanford Reach, including the Genera
Solitary bees have fairly short foraging distances within similar habitat types, which is suggested as being between 150–600 m (495–1,970 ft) (Gathmann and Tscharntke (2002, pp. 760–762)). Three genera are found in common with those studied in Gathmann and Tscharntke (2002) in the Hanford Reach;
Vegetation cover in the vicinity of Umtanum desert buckwheat is low
In order for Umtanum desert buckwheat genetic exchange to occur, pollinators must be able to move freely between plants. Additional pollen and nectar sources (other plant species within the surrounding sagebrush vegetation) are also needed to support pollinators when the species is not flowering. This surrounding and adjacent habitat will protect soils and pollinators from disturbance, slow the invasion of the site by nonnative species, and provide a diversity of habitats needed by Umtanum desert buckwheat and its pollinators. Therefore, based on the information above, we identify the presence of insect pollinators as a physical and biological feature essential to the conservation for Umtanum desert buckwheat. Insect pollinators require a diversity of native plants, whose blooming times overlap to provide sufficient flowers for foraging throughout the seasons, nesting and egg-laying sites, appropriate nesting materials, and sheltered, undisturbed places for hibernation and overwintering.
The Umtanum desert buckwheat population has a discontinuous distribution along a narrow, 1.6-km (1-mi) long portion of Umtanum Ridge (Dunwiddie
Fire appears to readily kill the slow-growing Umtanum desert buckwheat plants, especially in areas with higher fuel levels. Because of the rocky talus soils and a relatively low fire frequency, the species is confined to a few meters of upper cliff slope, cliff breaks, and tops. Fires increase the risk of invasion of nonnative or invasive species, particularly cheatgrass, which competes with Umtanum desert buckwheat for space and moisture. In turn, the establishment and growth of highly flammable and often continuous cheatgrass increases the likelihood of fire, potentially elevating the risk of impacting the Umtanum desert buckwheat population in the future. The substrate that supports Umtanum desert buckwheat likely had a lower vegetation cover prior to the introduction of cheatgrass in the 1800s. Fire is a primary threat to Umtanum desert buckwheat, and will likely become a greater threat if the frequency or severity of fires increases (TNC 1998 p. 9; Dunwiddie
Therefore, based on the information above, we identify the stable cliff and soil structure that is protected from human-caused trampling and at a low risk of wildfire as a physical and biological feature essential to the conservation for Umtanum desert buckwheat. This habitat contains little or no surface disturbance and is surrounded by diverse native pollinator habitat.
Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of Umtanum desert buckwheat, focusing on the features' primary constituent elements. We consider primary constituent elements to be the specific compositional elements of physical and biological features that are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and the habitat characteristics required to sustain the species' life-history process, we have determined that the primary constituent elements specific to Umtanum desert buckwheat are:
1. Primary Constituent Element 1—North to northeast facing, weathered basalt cliffs of the Wanapum Formation at the far eastern end of Umtanum Ridge in Benton County that contain outcrops, cliff breaks, slopes, and flat or gently sloping cliff tops with exposed pebble and gravel soils;
2. Primary Constituent Element 2—Pebbly lithosol talus soils derived from surface weathering of the top of the Lolo Flow of the Priest Rapids Member of the Wanapum Formation;
3. Primary Constituent Element 3—Sparsely vegetated habitat (less than 10 percent total cover), containing low amounts of nonnative or invasive plant species (less than 1 percent cover);
4. Primary Constituent Element 4—The presence of insect pollinator species; and
5. Primary Constituent Element 5—The presence of native shrub steppe habitat within the effective pollinator distance (300 m (approximately 980 ft)) around the population.
Umtanum desert buckwheat occurs only as a single population located within a single site. With this proposed designation of critical habitat, we intend to identify the physical and biological features essential to the conservation of the species, through the identification of the appropriate quantity and spatial arrangement of the primary constituent elements sufficient to support the life-history processes of the species.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and that may require special management considerations or protection. All areas proposed for designation as critical habitat as described below may require some level of management to address the current and future threats to the physical and biological features essential to the conservation of Umtanum desert buckwheat. In all of the described units, special management
Public access without security clearance is currently prohibited at the Umtanum desert buckwheat site, reducing the risk of trampling or crushing the plants by ORV use. Special management to protect the proposed critical habitat areas and the features essential to the conservation of Umtanum desert buckwheat from the effects of the current wildfire regime may include preventing or restricting the establishment of invasive, nonnative plant species, post-wildfire restoration with native plant species, and reducing the likelihood of wildfires affecting the population and nearby plant community components. These actions may be achieved by detailed fire management planning by the DOE (the landowner), including rapid response and mutual support agreements between the DOE, the Monument, the U.S. Department of the Army, Bureau of Land Management, and the Washington Department of Fish and Wildlife for wildfire control. These agreements should contain sufficient detail to identify actions by all partners necessary to protect habitat for Umtanum desert buckwheat from fire escaping from other ownerships.
Further studies leading to an enhancement or reintroduction plan may be necessary to increase population size and prepare for recovery post-wildfire. More research is needed to determine habitats most suitable for expansion of the current population. In summary, special management considerations or protections should address activities that would be most likely to result in the loss of Umtanum desert buckwheat plants or the disturbance, compaction, or other negative impacts to the species' habitat. These activities could include, but are not limited to, recreational activities and associated infrastructure, off-road vehicle activity, dispersed recreation, wildfire, and wildfire suppression activities.
A fire management plan has been completed for the Hanford installation (DOE 2011, p. 93) and recently revised to incorporate more detailed management objectives and standards. Though not intended to specifically address Umtanum desert buckwheat, implementation of this plan will contribute to the protection of the primary constituent elements (and physical or biological features) by: (1) Using a map of “sensitive resources” on the site during implementation, including the location of Umtanum desert buckwheat habitat; (2) requiring a biologist to assist the command staff in protecting these environments during wildfire suppression efforts; and (3) restricting public access to the entire Umtanum desert buckwheat site, including the proposed pollinator use area.
We are proposing one unit as critical habitat for the Umtanum desert buckwheat population. The critical habitat area described below constitutes our best assessment of areas that meet the definition of critical habitat for Umtanum desert buckwheat. Within this unit, no subunits have been identified.
The approximate size and ownership of the proposed Umtanum Ridge critical habitat unit is identified in Table 6 below. The single unit contains currently occupied critical habitat and unoccupied habitat surrounding it.
White Bluffs bladderpod is only known from a single population that occurs in a narrow band approximately 10 m (33 ft) wide by 17 km (10.6 mi) long, at the upper edge of the White Bluffs of the Hanford Reach. The species only occurs at the upper surface areas of a near-vertical exposure of paleosol (ancient, buried soil whose composition may reflect a climate significantly different from the climate now prevalent in an area). This surface material overlays several hundred feet of easily eroded sediments of the Ringold Geologic Formation, a sedimentary formation made up of soft Pliocene lacustrine deposits of clay, sand, and silt (Newcomb 1958, p. 330).
The upper part of the Ringold Formation is a heavily calcified and silicified cap layer that exists to a depth of at least 4.6 m (15 ft). This layer is geologically referred to as “caliche,” although it lacks the nitrate constituents found in true caliche. The caliche-like layer is a resistant caprock underlying a 275–305 m (900–1,000 ft) plateau extending north and east from the White Bluffs (Newcomb 1958, p. 330).
The entire population of White Bluffs bladderpod is down-slope of irrigated agricultural land, and is being impacted to differing degrees by landslides induced by water-seepage (see Factor A). The potential for landslide is greatest in the southern portion of the species distribution where irrigated lands are closer to, or directly adjacent to, the bluffs (Lindsey 1997, p. 12). In addition, field investigations have determined that
Therefore, based on the information above, we identify the weathered cliffs at approximately 210–275 m (700–900 ft) above sea level of the White Bluffs of the Ringold Formation exposed by natural erosion as a physical and biological feature essential to the conservation for White Bluffs bladderpod. The habitat includes the adjacent cliff breaks, moderate to gentle slopes (<100 percent slope) to the toe of slope, and flat or gently sloping cliff tops with exposed alkaline paleosols. This habitat is stable with a minimal amount of landslide occurrence.
The White Bluffs area was submerged during the larger ice-age floods until about 3 million years ago and was protected from high flow events by the Saddle Mountains to the north. As a result, the area experienced little or no erosion. A thin layer of ancient slackwater flood deposits overlay the older paleosols and resistant cap deposits (Bjornstad and Fecht 2002, p. 15). White Bluffs bladderpod occurs only on or near exposed, weathered, highly alkaline, calcium carbonate cap deposits and may be an obligate calciphile (a plant which grows well on chalky or alkaline soils), as are many of the endemic
White Bluffs bladderpod plants are found on several different types of soil substrates, (e.g., paleosol, volcanic tuff, caliche, and ancient flood deposits), each of which presumably have a relatively high percentage of calcium carbonate (TNC 1998, p. 5). The species is occasionally observed on the lower slopes of the White Bluffs, which may be related to ancient landslide zones or weathering and disturbance factors that deposit alkaline soils down slope (Caplow and Beck 1996, p. 42). Although there are scattered small exposures of similar caliche substrate in coulees (i.e., deep ravines or gulches that are usually dry, although formed by water) to the north, surveys have failed to detect the species in those areas (Rollins
Therefore, based on the information above, we identify the weathered alkaline paleosols and mixed soils of the Ringold Formation that occur in a narrow band within and around the exposed caliche-like cap containing a high percentage of calcium carbonate as a physical and biological feature essential to the conservation of White Bluffs bladderpod. This habitat is associated with the White Bluffs, and occurs between 210–275 m (700–900 ft) in elevation.
Washington State University researchers on the Hanford Reach have identified approximately 2,500 different species of invertebrates, 42 of which are new to science (WNPS 2004, p. 3). Larvae of a species of Cecidomyiid fly have been observed infesting and destroying flowering buds, and another unidentified insect species has been observed boring small holes in young seed capsules and feeding on developing ovules, although the overall positive or negative effects of these insect species to the plant are unknown. White Bluffs bladderpod appears to be served by several pollinators, including butterflies, flies, wasps, bumblebees, moths, beetles, and ant species. The presence of nearby habitat for pollinators is essential to conserving White Bluffs bladderpod, although little is currently known about the reproductive biology of the species. The effective pollinator distance for this species was determined by applying research on known flight distances of solitary bees (individual, noncolonial bees), which are known to pollinate native species and commonly observed in shrub steppe habitat within the Hanford Reach. Research suggests that different species of solitary bees have fairly short foraging distances within similar habitat types (Gathmann and Tscharntke 2002, p. 762); we assume other pollinating insects with longer-range flight capabilities would also utilize this habitat.
Solitary bees foraging distances within similar habitat types is suggested as being between 150–600 m (495–1,970 ft) (Gathmann and Tscharntke (2002, pp. 760–762)). Absent specific data, we believe 300 m (980 ft) represents a reasonable mid-range estimate of the area needed around the White Bluffs bladderpod population to provide sufficient habitat for solitary bees and other pollinators. As noted above, many other insects likely contribute to the pollination of White Bluffs bladderpod, some may travel greater distances than solitary bees, and some likely use habitat within the 300-m (980-ft) pollinator area described above. However, we limited the White Bluffs bladderpod pollinator support habitat to 300 m (980 ft) around the population, based on the rationale that pollinators using habitat farther away may not be as likely to contribute to the conservation/recovery of this species.
Common plant species associated with White Bluffs bladderpod include:
Species diversity within the surrounding plant community is quite high, and the presence of increased vegetative cover nearby offers more habitat structure and plant species diversity within the presumed effective flight distances of potential pollinators. In order for genetic exchange to occur between White Bluffs bladderpod individuals, pollinators must be able to move freely between plants. Additional pollen and nectar sources (other plant species within the surrounding sagebrush vegetation) are also needed to support pollinators during times when White Bluffs bladderpod is not flowering. This surrounding and adjacent habitat will protect soils and pollinators from disturbance, slow the invasion of the site by nonnative species, and provide a diversity of habitats needed by White Bluffs bladderpod and its pollinators.
Therefore, based on the information above, we identify insect pollinators as a physical and biological feature essential to the conservation for White Bluffs bladderpod. Insect pollinators require a diversity of native plants, surrounding and adjacent to White Bluffs bladderpod, whose blooming times overlap to provide them with sufficient flowers for foraging throughout the seasons and to provide nesting and egg-laying sites, appropriate nesting materials, and sheltered, undisturbed places for hibernation and overwintering of pollinator species.
White Bluffs bladderpod grows exclusively on the upper edge and upper face of the White Bluffs adjacent to the Columbia River, where human use can be high. The majority of the population occurs within the Wahluke Unit of the Hanford Reach National Monument/Saddle Mountain National Wildlife Refuge. The Wahluke Unit is open for public access in some form in its entirety (USFWS 2008, p. 2–4). The habitat is arid, and vegetation is sparse within the population (Rollins
Fire threatens White Bluffs bladderpod by directly burning plants and opening new areas to the establishment of invasive species. A large wildfire burned through the northern portion of the population in July 2007. The observed decline in the number of plants counted after the 2007 fire was within a natural range of variability (between highest and lowest counts) determined during survey transects. The 2008–2011 monitoring indicated the negative impacts of the burn were less than expected, since 76 percent of the previous population numbers were observed the following year. However, large-scale wildfires continue to be a threat to the existing population (Newsome pers. comm. 2008; Goldie pers. comm. 2008) by destroying pollinator habitat and facilitating competition with nonnative and invasive plant species that become established in openings created by wildfires.
Therefore, based on the information above, we identify stable bluff formations and caliche-like alkaline soils as a physical and biological feature essential to the conservation for White Bluffs bladderpod. These areas (1) are at a low risk of wildfire, (2) are not open to motorized recreational use, (3) are protected from human-caused trampling, (4) have little or no surface disturbance, (5) are sparsely vegetated (i.e., have 10 to 15 percent total vegetation cover), and (6) are surrounded by native pollinator habitat.
Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of White Bluffs bladderpod in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the specific compositional elements of physical and biological features that are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and the habitat characteristics required to sustain the species' life-history process, we have determined that the primary constituent elements specific to White Bluffs bladderpod are:
1. Primary Constituent Element 1—Weathered alkaline paleosols and mixed soils overlying the Ringold Formation. These soils occur within and around the exposed caliche-like cap deposits associated with the White Bluffs of the Ringold Formation, which contain a high percentage of calcium carbonate. These features occur between 210–275 m (700–900 ft) in elevation.
2. Primary Constituent Element 2—Sparsely vegetated habitat (less than 10–15 percent total cover), containing low amounts of nonnative or invasive plant species (less than 1 percent cover).
3. Primary Constituent Element 3—The presence of insect pollinator species.
4. Primary Constituent Element 4—The presence of native shrub steppe habitat within the effective pollinator distance (300 m (approximately 980 ft)).
5. Primary Constituent Element 5—The presence of stable bluff formations with minimal landslide occurrence.
White Bluffs bladderpod occurs only as a single population found within a single location. With this proposed designation of critical habitat, we intend to identify the physical and biological features essential to the conservation of the species, through the identification of the appropriate quantity and spatial arrangement of the primary constituent elements sufficient to support the life-history processes of the species.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and that may require special management considerations or protection. Because the public can access the White Bluffs bladderpod population, there is increased risk for plants being trampled and the spread of nonnative or invasive plants. To address this concern, the Hanford National Monument may develop a management plan on lands within its jurisdiction to protect the areas proposed as critical habitat for White Bluffs bladderpod, while continuing to allow the public to enjoy the area. Recreational access may be managed and controlled by directing foot traffic away from the species, installing fencing, and establishing appropriate signage for pedestrians and ORV traffic across unprotected boundaries with private and State land.
Special management to protect the proposed critical habitat areas from irrigation-induced landslides could include working with landowners through the U.S. Department of Agriculture (Natural Resources Conservation Service) to support water conservation practices to reduce excessive groundwater charging. This program could be designed to increase water efficiency as a savings and benefit to agricultural producers as well. Management considerations could include coordination with the Bureau of Reclamation to make water delivery to its customers more efficient and route wastewater return such that it reduces groundwater infiltration. Special management to protect the proposed critical habitat area from the effects of wildfire may include preventing or restricting the establishment of invasive, nonnative plant species, post-wildfire restoration with native plant species, and reducing the likelihood of wildfires affecting the nearby plant community components. Many of these actions are already in place, and need only refinement through detailed fire management planning to protect proposed critical habitat by the Monument.
In summary, special management considerations or protections should address activities that would be most likely to result in the loss of White Bluffs bladderpod plants or the disturbance, compaction, or other negative impacts to the species' habitat through landslides or other means. These activities could include, but are not limited to, dispersed recreation, off-road vehicle activity, wildfire, and wildfire suppression activities.
The Service has completed a comprehensive conservation plan for the Hanford National Monument that provides a strategy and general conservation measures for rare plants that may benefit White Bluffs bladderpod. This strategy includes support for monitoring, invasive species control, fire prevention, propagation, reintroduction and GIS support (USFWS 2008, pp. 2–64–2–65). The conservation of White Bluffs bladderpod is addressed by acknowledging that protection is needed, and that the plant is required to be addressed in any management action (USFWS 2008, p. 3–95).
We are proposing one unit as critical habitat for the White Bluffs bladderpod
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
Decisions by the Fifth and Ninth Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action;
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
If either species were listed under the Act, the Service would apply an analytical framework for jeopardy analyses relying heavily on the importance of habitat parameters at known population sites essential to the species' survival and recovery. The Service would focus its section 7(a)(2) analysis not only on these populations but also on the habitat conditions necessary to support them.
The jeopardy analysis usually expresses the survival and recovery needs of the species in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of the critical habitat for Umtanum desert buckwheat or White Bluffs bladderpod. As discussed above, the role of critical habitat is to support the various life-history needs and provide for the conservation of both species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and therefore result in consultation for Umtanum desert buckwheat or White Bluffs bladderpod include, but are not limited to:
(1) Actions within or near designated critical habitat areas that would result in the loss, disturbance, or compaction of unique soils at cliff breaks, slopes, and flat to gently sloping upper surface areas. Such activities could include, but are not limited to:
• Recreational activities and associated infrastructure;
• Off-road vehicle activity;
• Dispersed recreation;
• New road construction or widening or existing road maintenance;
• New energy transmission lines, or expansion of existing energy transmission lines;
• Maintenance of existing energy transmission line corridors;
• Wildfire suppression and post-wildfire rehabilitation activities;
• Activities that result in the burial of seeds such that germinants do not successfully reach the soil surface to flower and set seed;
• Activities that result in compaction that smoothes the surface, causing seeds to be carried away by wind or water due to the lack of rough surface textures to capture seed;
• Activities that result in changes in soil composition leading to changes in the vegetation composition, such as an increase in invasive, nonnative plant cover within and adjacent to cliff break microsites, resulting in decreased density or vigor of individual Umtanum desert buckwheat or White Bluffs bladderpod plants; and
• Activities that result in changes in soil permeability and increased runoff that degrades, reduces, or eliminates habitat necessary for growth and reproduction of either species.
(2) Actions within or near designated critical habitat areas that would result in the significant alteration of intact, native, sagebrush-steppe habitat within the range of Umtanum desert buckwheat or White Bluffs bladderpod. Such activities could include:
• ORV activities and dispersed recreation;
• New road construction or widening or existing road maintenance;
• New energy transmission lines or expansion of existing energy transmission lines;
• Maintenance of existing energy transmission line corridors;
• Fuels management projects such as prescribed burning; and
• Rehabilitation or restoration activities using plant species that may compete with Umtanum desert buckwheat or White Bluffs bladderpod, or not adequately address habitat requirements for insect pollinators.
These activities could result in the replacement or fragmentation of sagebrush-steppe habitat through the degradation or loss of native shrubs, grasses, and forbs in a manner that promotes increased wildfire frequency and intensity, and an increase in the cover of invasive, nonnative plant species that would compete for soil matrix components and moisture necessary to support the growth and reproduction of either species.
(3) Actions within or near designated critical habitat that would significantly reduce pollination or seed set (reproduction). Such activities could include, but are not limited to:
• Recreational development and associated infrastructure; and
• Use of pesticides, mowing, fuels management projects such as prescribed burning, and post-wildfire rehabilitation activities using plant species that may compete with Umtanum desert buckwheat or White Bluffs bladderpod.
These activities could prevent or reduce successful reproduction by removal or destruction of reproductive plant parts and could impact the habitat needs of generalist insect pollinators through habitat degradation and fragmentation, reducing the availability of insect pollinators for either species.
The occupied areas proposed as critical habitat contain the physical and biological features essential to the conservation of Umtanum desert buckwheat and White Bluffs bladderpod, and are within the historical geographic range of the species. The unoccupied areas are essential to the conservation of the species because they provide areas needed by insect pollinators. Federal agencies would need to consult with us to ensure that their actions do not jeopardize the continued existence of the species, or adversely affect designated critical habitat, if the species are listed under the Act.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108–136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD), or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
There are no DOD lands with a completed INRMP within the proposed critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary must designate and revise critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate will result in the extinction of the species. In making that determination, the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we consider all relevant impacts, including economic impacts. In compliance with section 4(b)(2) of the Act, we have prepared a draft analysis of the economic impacts of this proposed designation of critical habitat (DEA), which is available as supporting information for the proposed critical habitat designation. This document is available for downloading from the Internet at
The DEA concludes that incremental economic impacts are unlikely, given the species' narrow geographic range and the fact that any economic impacts related to conservation efforts to avoid adverse modification or destruction of critical habitat would be, for the most part, indistinguishable from those that would be required because of the listing of the species under the Act. Although unoccupied critical habitat areas are typically where incremental effects would be expected, in this case unoccupied critical habitat areas that support insect pollinators are immediately adjacent to occupied critical habitat. The effects of an action in occupied critical habitat would be analyzed concurrently with regard to its effects to unoccupied critical habitat. We anticipate that, in most cases, conservation recommendations or conservation recommendations would be identical, regardless of the critical habitat type. The DEA concludes that any incremental costs would be limited to additional administrative costs that would be borne by Federal agencies associated with section 7 consultations. During the development of the final designation, we will consider economic impacts, public comments, and other new information. Certain areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and or implementing regulations at 50 CFR 424.19.
At this time, we are not proposing any exclusions of areas from critical habitat under section 4(b)(2) of the Act for Umtanum desert buckwheat or White Bluffs bladderpod. During the comment period for the proposed designation of critical habitat, we will consider any available information about areas covered by conservation or management plans that we should consider for exclusion from the designation under section 4(b)(2) of the Act, including whether the benefits of exclusion would outweigh the benefits of their inclusion and whether exclusion would or would not result in the extinction of the species. We are specifically asking for public comment on the benefits of exclusion versus inclusion of private lands in the designation of critical habitat, and will determine whether any such lands may merit exclusion from the designation under section 4(b)(2) of the Act. Furthermore, we will evaluate all comments provided during the public comment period of this proposed rule on whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area in critical habitat under section 4(b)(2) of the Act.
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the DOD where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for either of the species are not owned or managed by the DOD and, therefore, we anticipate no impact to national security. Consequently, the Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether the landowners have developed any Habitat Conservation Plans (HCPs) or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any Tribal issues, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this proposal, we have determined that there are currently no HCPs or other management plans that specifically address management needs for either of the species, and the proposed designation does not include any Tribal lands or trust resources. We anticipate no impact to Tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on other relevant impacts.
In accordance with our joint policy published in the
We will consider all comments and information received during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal.
Section 4(b)(5) provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposal in the
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
To determine if the proposed designation of critical habitat for Umtanum desert buckwheat or White Bluffs bladderpod would affect a substantial number of small entities, we considered the potential number of small entities potentially affected within the particular types of economic activities most likely to be affected. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Since the predominant private land use that could be impacted by the proposed critical habitat designation for White Bluffs bladderpod appears to be irrigated agriculture, we focused our RFA and SBREFA analyses to that particular activity. The proposed designation is focused on Federal, State, and private lands that contain occupied habitat and the adjacent areas with native shrub steppe vegetation that provides nearby habitat for insect pollinators. Lands that are under agricultural use are not included in the proposed critical habitat designation.
In 2007, Franklin County, Washington, had 891 farms, which encompassed 246,664 ha (609,046 ac) and had an average farm size of 277 ha (684 ac, (
Based on Franklin County, Washington 2007 data, the proposed designation would overlay approximately 1/10 of 1 percent of the total irrigated acres (159,175 ha (393,025 ac)) in the county. Approximately 65 percent of the total land in farms (609,046 acres) consists of irrigated acreage (393,025 acres). The 2007 irrigated-acres value would proportionally represent approximately $304 million of the total market value of all agricultural products sold ($467 million). Each irrigated acre, therefore, proportionally represents approximately $724 in value/year, based on the 2007 data. Based on this calculation, the maximum economic impact for the entire 419 acres of private land proposed as critical habitat would be $303,559 if all acreage were conducive to and planned for irrigation agricultural use. However, since much of this acreage is not suitable for agriculture based on topography, the actual economic impact would likely be considerably less. Based on this analysis (see Table 6), the proposed designation of critical habitat within the 419 acres of private property would not have a significant economic impact on a substantial number of small entities. Since the average size of a farm in Franklin County, Washington, is 277 ha (684 ac), 170 ha (419 ac) represents approximately 61 percent of the size of one average farm; there are 891 farms in the County. Each private property acre within the proposed critical habitat designation potentially represents approximately $724 in annual value based on 2007 data, although a substantial percentage of this acreage is
Other than the above 170 ha (419 ac), the remainder of the areas proposed as critical habitat for White Bluffs bladderpod are either on State or Federal lands, and the proposed critical habitat designation for Umtanum desert buckwheat is entirely on Federal land. Federal and State governments are not considered small entities for purposes of our RFA analysis.
Based on the best available scientific and commercial data, we have not identified a significant number of small entities that may be impacted by the proposed critical habitat designation, based on land ownership information. Small entities are consequently anticipated to bear a relatively low cost impact as a result of the designation of critical habitat for Umtanum desert buckwheat or White Bluffs bladderpod. Accordingly, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Seventeen high-voltage transmission lines cross the Monument boundaries, 11 of which cross the Hanford Reach. There are also two electric substations and several microwave towers located within the Monument boundaries. Periodic patrols and 24-hour access for emergency replacement of failed equipment are required for these facilities, and lines are patrolled by helicopter usually three times each year to assess potential problem areas. Helicopters may also be used in lieu of ground vehicles for maintenance or repairs (FWS 2008, p. 3–168). Other than an existing Bonneville Power Administration (BPA) overhead transmission line near the Umtanum desert buckwheat population on lands administered by the Department of Energy (DOE), there are no energy facilities within the footprint of the proposed critical habitat boundaries. The BPA has existing agreements with the DOE (the agency managing the land where the Umtanum desert buckwheat population occurs) for management of transmission line rights-of-way, access roads, microwave tower lines-of-sight, electric power substations, and other sites. The BPA will likely need to expand its existing transmission system in the vicinity of the Monument to meet future needs for moving electricity from generation sources in Montana, northern Idaho, and northeastern Washington to load centers in the Pacific Northwest.
Any activities related to transmission system expansion would first require study and analysis under the National Environmental Policy Act and coordination with the DOE and FWS to ensure protection of the Monument's natural and cultural resources (USFWS 2008, p. 3–169). This analysis would be required regardless of the designation of critical habitat for Umtanum desert buckwheat or White Bluffs bladderpod. However, we have no information indicating that new energy projects are planned for areas within the boundaries of the proposed critical habitat units, or that any of the maintenance activities described above would affect either the Umtanum desert buckwheat or White Bluffs bladderpod populations. Accordingly, we do not expect the designation of this proposed critical habitat to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Any comments received addressing energy supply will be fully considered and addressed in the final rule. The DOE Richland Operations Office is supportive of the Service's efforts to list Umtanum desert buckwheat under the Act (DOE 2011).
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This rule will 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:
The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
We do not believe that this rule will significantly or uniquely affect small governments. The lands being proposed for critical habitat designation are predominantly owned by the Department of Energy and the Department of the Interior. These government entities do not fit the definition of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.
In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), this rule is not anticipated to have significant takings implications. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. We do not anticipate that property values will be affected by the critical habitat designation, but will fully consider all comments in this regard. We will revise this preliminary assessment as warranted, and prepare a Takings Implication Assessment, based on those comments, if needed.
In accordance with Executive Order 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with the appropriate State resource agencies in Washington. The designation of critical habitat in areas currently occupied by Umtanum desert buckwheat and White Bluffs bladderpod may impose nominal additional regulatory restrictions to those currently in place and, therefore, may have little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule identifies the physical and biological features within the designated areas to assist the public in understanding the habitat needs of both Umtanum desert buckwheat and White Bluffs bladderpod.
This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Native American Indian culture, and to make information available to Tribes. Neither Umtanum desert buckwheat nor White Bluffs bladderpod occurs on Tribal lands, and there are no unoccupied areas essential to the conservation of either species on Tribal lands. Therefore, we are not proposing any Tribal lands as critical habitat for either Umtanum desert buckwheat or White Bluffs bladderpod. The Confederated Tribes and Bands of the Yakima Nation indicated they have interest in protecting and managing resources occurring in the Ceded Territories designated under the Treaty of 1855. The Tribe submitted a letter stating they are supportive of the proposed “Federal special status listing” of Umtanum desert buckwheat and White Bluffs bladderpod.
A complete list of all references cited in this proposed rule is available on the Internet at
The primary authors of this proposed rule are the staff members of the Central Washington Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, and 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; Public Law 99–625, 100 Stat. 3500, unless otherwise noted.
2. Amend § 17.12(h) by adding entries for “
(h) * * *
3. In § 17.96, amend paragraph (a) by adding an entry for “
(a)
Family Brassicaceae:
(1) The critical habitat unit is depicted for Franklin County, Washington, on the map at paragraph (5) of this entry.
(2) The primary constituent elements of the physical and biological features essential to the conservation of critical habitat for
(i) Weathered alkaline paleosols and mixed soils overlying the Ringold Formation. These soils occur within and around the exposed caliche-like cap deposits associated with the White Bluffs of the Ringold Formation, which contain a high percentage of calcium carbonate. These features occur between 210–275 m (700–900 ft) in elevation.
(ii) Sparsely vegetated habitat (less than 10–15 percent total cover), containing low amounts of nonnative or invasive plant species (less than 1 percent cover).
(iii) The presence of insect pollinator species.
(iv) The presence of native shrub steppe habitat within the effective pollinator distance (300 m (approximately 980 ft)).
(v) The presence of stable bluff formations with minimal landslide occurrence.
(3) Critical habitat does not include irrigated private lands or manmade structures (such as buildings, pavement, or other structures) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4) This critical habitat unit was mapped using Universal Transverse Mercator, Zone 11, North American Datum 1983 (UTM NAD 83) coordinates. These coordinates establish the vertices of the unit boundaries.
(5)
Family Polygonaceae:
(1) The critical habitat unit is depicted for Benton County, Washington, on the map at paragraph (5) of this entry.
(2) The primary constituent elements of the physical and biological features essential to the conservation of
(i) North- to northeast-facing, weathered basalt cliffs of the Wanapum Formation at the far eastern end of Umtanum Ridge in Benton County that contain outcrops, cliff breaks, slopes, and flat or gently sloping cliff tops with exposed pebble and gravel soils.
(ii) Pebbly lithosol talus soils derived from surface weathering of the top of the Lolo Flow of the Priest Rapids Member of the Wanapum Formation.
(iii) Sparsely vegetated habitat (less than 10 percent total cover), containing low amounts of nonnative or invasive plant species (less than 1 percent cover).
(iv) The presence of insect pollinator species.
(v) The presence of native shrub steppe habitat within the effective pollinator distance (300 m (approximately 980 ft)) around the population.
(3) Critical habitat does not include manmade structures (such as buildings, pavement, or other structures) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4) This critical habitat unit was mapped using Universal Transverse Mercator, Zone 11, North American Datum 1983 (UTM NAD 83) coordinates. These coordinates establish the vertices of the unit boundaries.
(5)
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Proposed rule.
HERA, enacted into law on July 30, 2008, made comprehensive and significant reforms to several HUD programs, including HUD's Public Housing, Section 8 Tenant-Based Voucher, and Project-Based Voucher programs. On November 24, 2008, HUD published a notice that provided information about the applicability of certain HERA provisions to these programs. The notice identified: (1) Those statutory provisions that are self-executing and required no action on the part of HUD for the program changes made by HERA to be implemented; and (2) those statutory provisions that require new regulations or regulatory changes by HUD for the HERA provisions to be implemented. The notice also offered the opportunity for public comment on the guidance provided.
This proposed rule follows the November 24, 2008, notice for the purpose of establishing, in regulation, the reforms made to HERA as discussed in that notice, and to make other related regulatory changes. This proposed rule would make conforming changes to the regulations of the Section 8 Tenant-Based Voucher and Section 8 Project-Based Voucher programs to reflect the self-executing provisions of HERA, and would also amend the regulations required to implement those statutory provisions of HERA that are not self-implementing. Additionally, this rule would make such other changes for the purposes of updating certain regulations to reflect current practices, and clarifying other regulations which, based on experience, HUD determined would benefit from clarification. While the conforming and clarifying changes are not implementing new policy, HUD nevertheless welcomes comment on the clarity and comprehensibility of the language proposed to be codified. This rule also takes into consideration the two public comments received in response to issuance of the November 2008 notice, and solicits additional public comment.
HERA changes affecting the public housing program are being addressed by separate rulemaking.
Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, 451 7th Street SW., Room 10276, Department of Housing and Urban Development, Washington, DC 20410–0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
1.
2.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.
For information about HUD's Public Housing and Voucher programs, contact Danielle Bastarache, Director, Office of Voucher Programs, Office of Public and Indian Housing, Room 4226, telephone number 202–401–3882. The address is the Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410. The listed telephone number is not a toll-free number. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 1–800–877–8339.
HERA (Pub. L. 110–289, 122 Stat. 2654, approved July 30, 2008) made several changes to the U.S. Housing Act of 1937 (42 U.S.C. 1437
HUD published a notice in the
Whether the HERA program changes are self-executing or not self-executing, a rule is necessary to ensure that the
With respect to the conforming regulatory changes, a conforming change does not necessarily mean that HUD is adopting in regulation the statutory language verbatim. For purposes of clarity or to give precision to the statutory language or statutory intent, the conforming regulatory change may be worded differently than the statutory language. However, any regulatory change to the statutory language should not be interpreted as any reversal in HUD's position that the statutory language is self-executing. Nevertheless, once promulgated in final, the regulatory language, with any precision given to the statutory language, will govern implementation of these statutory provisions by PHAs.
In discussing the regulatory changes proposed to be made by this rule, the preamble to this rule follows the HERA overview provided in the November 24, 2008, notice, which, as noted earlier, identified the HERA provisions that would require conforming rule changes and those that would require implementing regulations.
This income exclusion made by HERA is similar to the existing exclusion for deferred periodic amounts from Supplemental Security Income and Social Security benefits under 24 CFR 5.609(c)(14). Although the full amount of periodic Social Security payments is included in the amounts that constitute annual income in 24 CFR 5.609(b)(4), the deferred amount resulting from the delayed start of the periodic payment is not included in annual income. Accordingly, the full amount of periodic VA disability benefit payments continues to be included in amounts that constitute annual income in 24 CFR 5.609(b)(4), but the deferred amount resulting from the delayed start of the disability payments will not be included in annual income.
The November 24, 2008, notice advised that a payment qualifies as a VA disability benefit if it is identified as a disability benefit in the VA benefit award letter, regardless of whether or not the family member who is the beneficiary of the award would qualify as a person with disabilities under HUD's regulations. The November 24, 2008, notice also advised that for existing residents or tenants, including those residing in project-based assisted housing administered by HUD's Office of Housing, the new exclusion for deferred payments will be made applicable at the time of annual reexamination of income, or at the time of interim reexamination of income.
This rule makes a conforming change to 24 CFR 5.609 to include the VA disability benefits with the exclusion from income for deferred Social Security benefits in § 5.609(c)(14).
Under this new section of the 1937 Act, a rent comparison with unassisted local market units is not required for such dwelling units, if the rent does not exceed the rent for other LIHTC or HOME-assisted units in the project, that are not occupied by families with tenant-based assistance. The rent is to be considered reasonable if it does not exceed the greater of: (1) The rent for other LIHTC- or HOME-assisted units in the project not occupied by families with tenant-based assistance, and (2) the payment standard established by a PHA for a unit of the size involved.
Because HUD is undertaking separate rulemaking for the HOME program, § 982.507 makes only a conforming change to the regulations with respect to LIHTC-assisted units. Following the addressing of this issue through a HOME program rulemaking, namely, HOME rents for nonvoucher families in the HOME program regulations, § 982.507(c) will be amended accordingly. With this rule, § 982.507(c) provides that if the rent requested by the owner exceeds the LIHTC rents for nonvoucher families, the PHA must perform a rent comparability study in accordance with program regulations, and the rent shall not exceed the lesser of the: (1) Reasonable rent as determined pursuant to a rent comparability study, and (2) the payment standard established by the PHA for the unit size involved.
Section 2835(a)(1) of HERA makes several changes to the section 8 project-based voucher (PBV) program established by section 8(o)(13) of the 1937 Act (42 U.S.C. 1437f(o)(13)) and for which the regulations are found at 24 CFR part 983. The changes are as follows:
The definition of “existing housing” is proposed to be revised for the purpose of establishing clear and measurable standards in determining whether a proposed project is eligible for selection as existing housing. The definition is intended to address the potential circumvention of rehabilitation program requirements by selecting a project as existing housing when rehabilitation will be performed on the project shortly after execution of the housing assistance payment (HAP) contract. This rule proposes to revise the definition of “existing housing” to read as follows:
(1) Will comply with HQS within 60 days of the date of such selection, and the total amount of work that must be performed to cause the unit to comply with HQS does not exceed $1,000 per assisted unit (including the unit's prorated share of any work to be accomplished on common areas or systems); and
(2) There is no plan to perform rehabilitation work on the unit within one year after HAP contract execution that would cause the unit to be in noncompliance with HQS and that would total more than $1,000 per assisted unit (including the unit's prorated share of any work to be accomplished on common areas or systems).
This rule proposes to remove the definition of “state-certified appraiser”. As discussed later in this preamble under the discussion of proposed changes to § 983.59, HUD determined that a formal appraisal of the property is no longer necessary.
HUD notes that § 983.51(e) provides, in relevant part, that “under no circumstances may PBV assistance be used with a public housing unit.” HUD makes no changes to this section but finds that it is important to reiterate the basis for this requirement as provided by HUD in the PBV program final rule published on October 13, 2005, at 70 FR 59892. HUD stated in relevant part as follows:
The Department believes that Congress' adoption of disparate or parallel statutory provisions for the public housing and voucher programs affirms that public housing and voucher programs are intended to operate as separate, and mutually exclusive, subsidy systems under the U.S. Housing Act of 1937. It is not permissible by law to combine voucher funds with public housing funds. * * * If Capital Funds (including Replacement Housing Factor Fund Grants) or Section 24 funds are used in the development of affordable housing, pro-ration must occur. For example, if a project receives $2,000 in non-public housing HOPE VI funds and $1,000 in Capital Funds and there are 60 units in the development, 20 of the units (one-third) are being funded with capital funds and, therefore, cannot be combined with project-based vouchers. Provided that the remaining 40 units (two-thirds) are not receiving any Public Housing funds, the units may be assisted under the PBV program. (See 70 FR 59900.)
This proposed rule would make a conforming change to § 983.55 to clarify that the subsidy layering requirements are not applicable to existing housing. The November 24, 2008, notice further advised that HUD would be issuing guidance on how such reviews must be conducted for newly constructed or rehabilitated housing. The Office of Public and Indian Housing (PIH) has issued guidelines on subsidy layering requirements for the PBV program. (See HUD's notice published in the
This proposed rule would make a conforming change to § 983.56, and HUD is also adding the statutory definition of “project” to the definitions in 24 CFR 983.3, as discussed earlier in this preamble. Additionally, this proposed rule would clarify that the exception to the 25 percent cap on the number of PBV units in a project includes units for the elderly and/or persons with disabilities; that is, a project for the elderly, a project for persons with disabilities, or a project that serves both categories of tenants.
With respect to the definition of “project”, HUD specifically requested comment in the November 24, 2008, notice on the impact on deconcentration efforts concerning the change in terms from “building” to “project”. One of the commenters requested that HUD's conforming rule clarify that a PHA has the discretion to apply the definition of “project” to mean a single building, multiple contiguous buildings, or multiple buildings on contiguous parcels of land. HUD interprets “project” to apply to all of these structures, and a PHA must consider the entire definition and apply this definition to the proposed PBV units. HUD also interprets the term “contiguous” in the statutory definition of “project” to include “adjacent to”, as well as touching along a boundary or a point.
Another commenter expressed concern that the change in definition to “project” would allow PBV owners to set aside separate floors of mixed-occupancy buildings solely for PBV residents with disabilities. The commenter noted that the civil rights authorities prohibit unlawful segregation, not only of race but of disability as well. The commenter requested that HUD issue regulations directing PHAs to adopt written policies to forbid segregation in PBV projects.
It is HUD's view that nothing in HERA or in this proposed rule would alter a PHA's responsibility to adhere to nondiscrimination requirements. Given that PHAs already have the responsibility to adhere to civil rights and nondiscrimination requirements, including, but not limited to, the express integration mandate set forth at 24 CFR 8.4(d), HUD determined that further regulation is not necessary in this area. However, HUD will remain diligent in its oversight responsibilities regarding compliance with civil rights requirements.
In addition to the foregoing changes, the proposed rule would add a new paragraph (b)(3) to make explicit that exception categories in a multifamily housing project may be combined. The exception categories in a multifamily housing project refers to those units that are occupied by elderly families and/or families with disabilities and/or families receiving supportive services and that are exempt from the overall 25 percent cap. New paragraph (b)(3) is intended to remove any ambiguity that the exception categories can be combined in determining the number of units that are exempt from the 25 percent cap.
HUD notes that any federally required environmental review is “required by law or regulation.” Given this, there do not appear to be any federally required environmental reviews that would be eliminated by this provision. HUD also notes that under its regulations in 24 CFR part 58, federal environmental reviews are undertaken by responsible entities (usually units of general local governments), and not by PHAs.
Accordingly, no changes are proposed to § 983.58, except to make a minor change to paragraph (d) of § 983.58 to note that the term “release of funds” is defined in the definition section, § 983.3, as discussed earlier in this preamble.
Additionally, this rule proposes to remove the requirement that the independent entity approved by HUD to determine initial contract rents to owner must be based on an appraisal by a licensed, state-certified appraiser. This requirement was not statutory but has been administratively imposed by HUD. HUD has now determined that the requirement is no longer practical or necessary. Rent reasonableness is based on rent comparability and, given the method by which rent reasonableness is now determined, such determination does not require a state-certified appraiser. Additionally, in practice, HUD has determined that the state-certified appraiser requirement has resulted in increased delays in the execution of “agreements to enter into a housing assistance payment” (AHAPs), due to lack of availability of state-certified appraisers. PHAs have also experienced significant increased expense in order to acquire state-certified appraisers. The 1937 Act requires that an independent entity establish rents based on program requirements, and the independence of such entity, which is an entity approved by HUD, sufficiently ensure that rents are set appropriately.
This proposed rule seeks comment on the applicability of this requirement to projects receiving other federal funds, including LIHTCs, on which construction has already started. Other federal programs may require commencement of construction before the AHAP can be formalized by HUD. HUD is exploring other means of establishing compliance with AHAP requirements through other federal programs.
This proposed rule would make a clarifying change to 24 CFR
This proposed rule would add a new paragraph (j) to § 983.210, consistent with the revised definition of “existing housing”, to reflect what constitutes existing PBV housing. This revision requires the owner of PBV property to certify that there are no plans to perform rehabilitation work on the existing units within one year after execution of the HAP contract.
With respect to accommodating a family member who is a person with disability, this rule proposes to amend § 983.251(d) by removing the third preference limit, which restricted the preference to individuals with disabilities interfering with daily activities so severely that adequate services were available only in a segregated setting. The amendment is intended to give, to persons qualifying for a preference for services, the option of receiving community-based services that may be offered outside of the particular project.
In § 983.256, this proposed rule would substitute the term “family” for “tenant” in § 983.256(g). The substitution of “family” for “tenant” is for consistency purposes, since the regulation more frequently refers to “family” rather than tenant. The proposed rule would also clarify that it is the HAP contract “for the unit” that is being referred to in the parenthetical sentence in paragraph (g).
The President's Executive Order (EO) 13563, entitled “Improving Regulation and Regulatory Review,” was signed by the President on January 18, 2011, and published on January 21, 2011 (76 FR 3821). This EO requires executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Section 4 of the EO, entitled “Flexible Approaches,” provides, in relevant part, that where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.
As noted earlier in this preamble, this proposed rule would make conforming changes to the regulations of the Section 8 Tenant-Based Voucher and Section 8 Project-Based Voucher programs to reflect the self-executing provisions of HERA, and would also amend the regulations required to implement those statutory provisions of HERA that are not self-implementing. Additionally, the rule would make such other changes for the purposes of updating certain regulations to reflect current practices, and clarifying other regulations which, based on experience, HUD determined would benefit from clarification. The amendments to be made by this rule bring the Section 8 Tenant-Based Voucher and Section 8 Project-Based Voucher programs up-to-date with statutory requirements and existing policies and practices.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either: (1) Imposes substantial direct compliance costs on state and local governments and the rule is not required by statute, or (2) the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Order. This rule does not have federalism implications and would not impose substantial direct compliance costs on state and local governments nor preempt state law within the meaning of the Order.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This proposed rule would make such other changes for the purposes of updating certain regulations to reflect current practices, and clarifying other regulations which, based on experience, HUD determined would benefit from clarification. Therefore, the undersigned certifies that this rule will not have a significant impact on a substantial number of small entities.
Notwithstanding HUD's view that this rule will not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in this preamble.
A Finding of No Significant Impact (FONSI) with respect to the environment was made in accordance with HUD regulations in 24 CFR part 50 that implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). The FONSI is available for public inspection during regular business hours in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410–0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the FONSI by calling the Regulations Division at 202–402–3055 (this is not a toll-free number).
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This rule does not impose any federal mandates on any state, local, or tribal government or the private sector within the meaning of UMRA.
The information collection requirements contained in this interim rule have been submitted to the Office
The burden of the information collections in this proposed rule is estimated as follows:
Total estimated burden hours:
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning this 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;
Interested persons are invited to submit comments regarding the information collection requirements in this rule. Comments must refer to the proposal by name and docket number (FR–5242–P–01) and must be sent to:
As an alternative to the above, interested persons may submit comments regarding the information collection requirements electronically through the Federal eRulemaking Portal at
The Catalog of Federal Domestic Assistance numbers applicable to the programs that would be affected by this rule are: 14.195, 14.850, 14.856, and 14.871.
Administrative practice and procedure, Aged, Claims, Drug abuse, Drug traffic control, Grant programs—housing and community development, Grant programs—Indians, Individuals with disabilities, Loan programs—housing and community development, Low and moderate income housing, Mortgage insurance, Pets, Public housing, Rent subsidies, Reporting and recordkeeping requirements.
Grant programs—housing and community development, Housing, Low- and moderate-income housing, Rent subsidies, Reporting and recordkeeping requirements.
Grant programs—housing and community development, Housing, Low- and moderate-income housing, Rent subsidies, Reporting and recordkeeping requirements.
Accordingly, for the reasons stated in the preamble, HUD propose to amend 24 CFR parts 5, 982, and 983, as follows.
1. The authority citation for part 5 continues to read as follows:
42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 3535(d), Sec. 327, Public Law 109–115, 119 Stat. 2936, and Sec. 607, Pub. L. 109–162, 119 Stat. 3051.
2. In § 5.609, paragraph (c)(14) is revised to read as follows:
(c) * * *
(14) Deferred periodic amounts from supplemental security income and Social Security benefits that are received in a lump sum amount or in prospective monthly amounts, or any deferred Department of Veterans Affairs disability benefits that are received in a lump sum amount or in prospective monthly amounts.
3. The authority citation for part 982 continues to read as follows:
42 U.S.C. 1437f and 3535(d).
4. In § 982.507, paragraph (a)(1) and the introductory text to paragraph (b) are revised, a new paragraph (c) is added, and existing paragraph (c) is redesignated as paragraph (d).
(a)
(b)
(c)
(2) If the rent requested by the owner exceeds the LIHTC rents for nonvoucher families, the PHA must perform a rent comparability study in accordance with program regulations and the rent shall not exceed the lesser of the: (i) Reasonable rent as determined pursuant to a rent comparability study and (ii) the payment standard established by the PHA for the unit size involved.
5. The authority citation for part 983 continues to read as follows:
42 U.S.C. 1437f and 3535(d).
6. In § 983.2, paragraphs (b)(3), (c)(2)(i), and (c)(7) are revised to read as follows:
(b) * * *
(3) Provisions on the following special housing types: shared housing, manufactured home space rental, and the homeownership option.
(c) * * *
(2) * * *
(i) Section 982.310 (owner termination of tenancy) applies to the PBV program, but to the extent that those provisions differ from § 983.257, the provisions of § 983.257 govern; and
(7) In subpart M of part 982: (i) Sections 982.603, 982.607, 982.611, 982.613(c)(2), 982.619(a), (b)(1), (b)(4), (c); and
(ii) Provisions concerning shared housing (§ 982.615 through § 982.618), manufactured home space rental (§ 982.622 through § 982.624), and the homeownership option (§ 982.625 through § 982.641).
7. In § 983.3(b):
a. Definitions for “housing credit agency”, “project”, “project-based certificate (PBC) program”, and “release of funds (for purposes of environmental review)” are added; and
b. The following definitions are revised: “excepted units (units in a multifamily building not counted against the 25 percent cap),” “existing housing”, “partially assisted building,” “premises,” “qualifying families (for purposes of exception to 25 percent building cap),” “special housing type,” and “wrong-size unit”.
c. The definition for “state certified appraiser” is removed.
(b) * * *
(1) Will comply with HQS within 60 days of the date of such selection, and the total amount of work that must be performed to cause the units to comply with HQS does not exceed $1,000 per assisted unit (including the unit's prorated share of any work to be accomplished on common areas or systems); and
(2) There is no plan to perform rehabilitation work on the units within one year after HAP contract execution that would cause the units to be in noncompliance with HQS and that would total more than $1,000 per assisted unit (including the unit's prorated share of any work to be accomplished on common areas or systems).
8. In § 983.5, paragraph (c) is revised to read as follows:
(c)
9. In § 983.6, a new paragraph (d) is added to read as follows:
(d) Before implementing a PBV program, the PHA must submit the following information to a HUD field office for review:
(1) The total amount of annual budget authority;
(2) The percentage of annual budget authority available to be project-based; and
(3) The total amount of annual budget authority the PHA is planning to project-base under this part and the number of units that such budget authority will support.
10. In § 983.9, paragraph (a)(2) is revised and a new paragraph (c) is added to read as follows:
(a) * * *
(2) In the PBV program, the PHA may not provide assistance for shared housing, manufactured home space rental, or the homeownership option.
(c)
(2)
(ii) Cooperative housing under the PBV program is not subject to the requirements of 24 CFR 982.619(a), (b)(1), (b)(4), and (c).
(3)
(4)
(5)
11. In § 983.10, paragraph (b) is revised and a new paragraph (c) is added to read as follows:
(b)
(1)
(ii)
(A) The term of the HAP contract for PBC contracts renewed as PBV contracts shall be consistent with § 983.205 of this PBV regulation.
(B) A PHA must make the determination, within one year before expiration of a PBC HAP contract, that renewal of the contract under the PBV program is appropriate to continue providing affordable housing for low-income families.
(C) The renewal of PBC assistance as PBV assistance is effectuated by the execution of a PBV HAP contract addendum as prescribed by HUD and a PBV HAP contract for existing housing.
(2)
(i)
(ii)
(B) The Lead-based Paint Poisoning Prevention Act (42 U.S.C. 48214846), the Residential Lead-based Paint Hazard Reduction Act of 1992 (42 U.S.C. 48514856), and implementing regulations at 24 CFR part 35, subparts A, B, H, and R, apply to the PBV program.
(iii)
(c)
12. In § 983.51:
a. Paragraph (a) is revised by substituting the term “project” for “building” in the last sentence; and
b. Paragraph (b)(2) is revised to read as follows:
(b) * * *
(2)
13. In § 983.52, paragraph (a) is revised to read as follows.
(a)
(i) Will comply with HQS within 60 days of such selection, and the total amount of work that must be performed to cause the units to comply with HQS does not exceed $1,000 per assisted unit (including the unit's prorated share of any work to be accomplished on common areas or systems); and
(ii) There is no plan to perform rehabilitation work on the units within
(2) Units for which rehabilitation or new construction was started, prior to the PHA's notice of selection, in accordance with subpart D of this part, do not qualify as existing housing.
14. In § 983.53:
a. The word “and” is inserted after paragraph (a)(5);
b. Paragraph (a)(6) is removed;
c. Paragraph (a)(7) is redesignated as paragraph (a)(6);
d. Paragraph (b) is removed;
e. Paragraph (c) is redesignated as paragraph (b), and is revised to read as follows; and
f. Paragraph (d) is redesignated as paragraph (c).
(b)
15. In § 983.55, paragraphs (a) and (b) are revised to read as follows:
(a)
(b)
16. In § 983.56:
a. In the heading of § 983.56, the word “project” is substituted for “building.”
b. The word “project” is substituted for “building” everywhere “building” appears in paragraph (a), including the heading of paragraph (a), and in paragraph (b), including the heading of paragraph (b);
c. Paragraph (b)(2)(A) is revised to read as follows;
d. The reference to § 983.261(d) in paragraph (b)(2)(B) is changed to § 962.262(d);
e. A new paragraph (b)(3) is added to read as follows, and existing paragraph (b)(3) becomes paragraph (b)(4);
f. The word “projects” is substituted for the word “building” in the introductory text to paragraph (c), including the heading of paragraph (c); and
g. The word “project” is substituted for the word “building” everywhere “building” appears in paragraphs (c)(1) and (c)(3).
(b)(2)
Elderly and/or disabled families; and/or
(3)
17. In § 983.58, paragraph (d)(1)(i) is revised to read as follows:
(d)(1) * * *
(i) The responsible entity has completed the environmental review procedures required by 24 CFR part 58, and HUD has approved the environmental certification and HUD has given a release of funds, as defined in § 983.3(b);
18. In § 983.59:
a. Paragraph (b)(1) is revised;
b. Paragraph (b)(2) is redesignated as paragraph (b)(3), and a new paragraph (b)(2) is added; and
c. The heading of paragraph (d) and paragraph (d) are revised to read as follows:
(b) * * *
(1)
(2)
(3) Inspection of PHA-owned units as required by § 983.103(f).
(d)
(2) The PHA, and the independent entity, may not charge the family any fee for the services provided by the independent entity.
19. In § 983.101, paragraph (b) is revised to read as follows:
(b)
20. In § 983.152, paragraph (a) is revised, a new paragraph (b) is added, and existing paragraphs (b) and (c) are redesignated as paragraphs (c) and (d), respectively:
(a)
(b)
(1) Construction begins when excavation or site preparation (including clearing of the land) begins for the housing;
(2) Rehabilitation begins with the physical commencement of rehabilitation activity on the housing.
21. In § 983.153, paragraph (c) is revised to read as follows:
(c)
22. In § 983.202, paragraph (a) is revised to read as follows:
(a)
23. In § 983.203, paragraph (h) is revised to read as follows:
(h) The number of units in any project that will exceed the 25 percent per-project cap (as described in § 983.56), which will be set-aside for occupancy by qualifying families (elderly and/or disabled families and families receiving supportive services); and
24. In § 983.205, paragraphs (a), (b), and (d) are revised to read as follows:
(a)
(b)
(d)
25. A new § 983.206 is added to read as follows, and §§ 983.206, 983.207, 983.208, and 983.209 are redesignated, respectively, as §§ 983.207, 983.208, 983.209, and 983.210.
(a) Notices required in accordance with this section must be provided in the form prescribed by HUD.
(b) Not less than one year before termination of a PBV or PBC HAP contract, the owner must notify the PHA and assisted tenants of the termination.
(c) For purposes of this section, the term “termination” means the expiration of the HAP contract or an owner's refusal to renew the HAP contract.
(d)(1) If an owner does not give timely notice of termination, the owner must permit the tenants in assisted units to remain in their units for the required notice period with no increase in the tenant portion of their rent, and with no eviction as a result of an owner's inability to collect an increased tenant portion of rent.
(2) An owner may renew the terminating contract for a period of time sufficient to give tenants one-year advance notice under such terms as HUD may require.
26. In redesignated § 983.207, paragraph (b) is revised by substituting the word “project” for “building” everywhere the word “building” appears:
27. In redesignated § 983.210, paragraph (i) is revised and a new paragraph (j) is added to read as follows:
(i) The family does not own or have any interest in the contract unit. The certification required by this section does not apply in the case of an assisted family's membership in a cooperative.
(j) The owner of a PBV project selected as an existing project does not plan to perform rehabilitation work on the units, within one year after HAP contract execution, that would cause the units to be in noncompliance with HQS and that would total more than $1,000 per assisted unit (including the unit's prorated share of any work to be accomplished on common areas or systems).
28. A new § 983.211 is added to read as follows:
Units occupied by families whose income has increased during their tenancy resulting in the tenant rent equaling the rent to the owner, shall be removed from the HAP Contract 180 days following the last HAP. If the project is partially assisted, and it is possible for the HAP contract to be amended to substitute a different unit in the project, the PHA may substitute a different unit for the unit removed from the Contract, in accordance with § 983.207.
29. In § 983.251, a new paragraph (a)(4) is added, paragraph (d)(1)(iii) is removed and the introductory text of paragraph (d) is revised to read as follows:
(a) * * *
(4) A PHA may not approve a tenancy if the owner (including a principal or other interested party) of a unit is the parent, child, grandparent, grandchild, sister, or brother of any member of the family, unless the PHA determines that approving the unit would provide reasonable accommodation for a family member who is a person with disabilities.
(d)
30. In § 983.256, paragraphs (f) and (g) are revised to read as follows:
(f)
(2) The lease must provide for automatic renewal after the initial term of the lease. The lease may provide either:
(i) For automatic renewal for successive definite terms (e.g., month-to-month or year-to-year); or
(ii) For automatic indefinite extension of the lease term.
(3) The term of the lease terminates if any of the following occurs:
(i) The owner terminates the lease;
(ii) The tenant terminates the lease;
(iii) The owner and the tenant agree to terminate the lease;
(iv) The PHA terminates the HAP contract; or
(v) The PHA terminates assistance for the family.
(g)
31. In § 983.257, paragraph (b) is removed and paragraph (c) is redesignated as paragraph (b) and revised by substituting the word “project” for “building”.
32. A new § 983.258 is added, and existing §§ 983.258, 983.259, 983.260, and 983.261 are redesignated as §§ 983.259, 983.260, 983.261, and 983.262, respectively.
HAPs shall continue until the tenant rent equals the rent to owner. The cessation of HAPs at such point will not affect the family's other rights under its lease, nor will such cessation preclude the resumption of payments as a result of later changes in income, rents, or other relevant circumstances if such changes occur within 180 days following the date of the last HAP by the PHA. After the 180-day period, the unit shall be removed from the HAP contract pursuant to § 983.211.
33. In redesignated § 983.260:
a. The word “project” is substituted for “building” everywhere the word “building” appears in paragraph (b)(2)(i), and paragraph (c) is revised to read as follows:
(c)
34. In redesignated § 983.262, paragraph (b) is revised to read as follows, and the word “project” is substituted for “building” everywhere the word “building” appears in paragraph (d), and the reference to § 983.206(a) in paragraph (d) is changed to § 983.207(a).
(b) In referring families to the owner for admission to excepted units, the PHA must give preference to elderly and/or disabled families, or to families receiving supportive services.
35. In § 983.301, paragraphs (d) and (e) are revised to read as follows:
(d)
(e)
36. In § 983.302, paragraph (c) is revised to read as follows, and the reference to § 983.206(c) is changed to§ 983.207(c):
(c)
(2) The rent to owner shall not be reduced below the initial rent to owner for dwelling units under the initial HAP contract, except:
(i) To correct errors in calculations in accordance with HUD requirements;
(ii) If additional housing assistance has been combined with PBV assistance after the execution of the initial HAP contract and a rent decrease is required pursuant to § 983.55; or
(iii) If a decrease in rent to owner is required based on changes in the allocation of responsibility for utilities between the owner and the tenant.
37. In § 983.303, paragraphs (a), (b)(3), and (f)(1) are revised to read as follows:
(a)
(b) * * *
(3) Whenever the HAP contract is amended to substitute a different contract unit in the same building or project; and
(f)
38. In § 983.304, paragraph (e) is revised to read as follows:
(e)