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Federal Aviation Administration, DOT.
Final rule; technical amendment.
The FAA is correcting a final rule published on November 15, 2010. That rule required design approval holders of certain existing airplanes and all applicants for type certificates of future transport category airplanes to establish a limit of validity of the engineering data that supports the structural maintenance program (hereinafter referred to as LOV). It also required that operators of any affected airplane incorporate the LOV into the maintenance program for that airplane. This document corrects errors in codified text of that document.
Effective May 24, 2012.
For technical questions concerning this action, contact Walter Sippel, ANM–115, Airframe/Cabin Safety Branch, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone (425) 227–2774; facsimile (425) 227–1232; email
For legal questions concerning this action, contact Doug Anderson, Office of Regional Counsel, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone (425) 227–2166; facsimile (425) 227–1007; email
On November 15, 2010, the FAA published a final rule entitled, “Aging Airplane Program: Widespread Fatigue Damage,” (75 FR 69746). In that final rule the FAA revised the regulations pertaining to certification and operation of transport category airplanes to prevent widespread fatigue damage in those airplanes. For certain existing airplanes, the rule required design approval holders to evaluate their airplanes to establish an LOV. For future airplanes, the rule required all applicants for type certificates, after the effective date of the rule, to establish an LOV. Design approval holders and applicants must demonstrate that the airplane will be free from widespread fatigue damage up to the LOV. The rule requires that operators of any affected airplane incorporate the LOV into the maintenance program for that airplane. After issuing the final rule, the FAA determined minor technical changes are needed to correct dates for establishing LOVs for Airbus A310 and A300–600 series airplanes for compliance with § 26.21. Based on that change, the FAA determined minor technical changes are also needed to correct dates for operators to comply with § 121.1115 or § 129.115. We inadvertently included those airplanes in the group of airplane models for which the following compliance times apply:
• 18 months after January 14, 2011, for design approval holders (DAHs).
• 30 months after January 14, 2011, for operators.
The change to Table 1 of § 26.21 corrects the compliance date for the Airbus A310 and A300–600 series airplanes from 18 to 48 months after January 14, 2011. This change is relieving and corrects an inconsistency with the intent of the rule and does not impact the ability of Airbus to comply with § 26.21. As stated in the preamble of the rule entitled, “Aging Airplane Program: Widespread Fatigue Damage,” the FAA intended to phase in compliance based on the airplane's certification basis relative to § 25.571 (Group I: pre-Amendment 25–45, Group II: Amendment 25–45 up to but not including 25–96, and Group III: Amendment 25–96 and later). We included the A310 and A300–600 series airplanes in Group I, with a compliance time of 18 months, but they should have been included in Group II, with a compliance time of 48 months. The type certificate data sheet, A35EU, revision 25, dated May 28 2010, identifies the amendment level of the A310 as Amendment 25–45. The A300–600 is listed with § 25.571 at various amendment levels, including some versions with pre-Amendment 25–45. However, through post-certification assessments, Airbus has shown that all versions of the A300–600 meet the requirements of Amendment 25–45, and the FAA has recognized this in other rulemaking actions (see Damage Tolerance Data for Repairs and Alterations, 72 FR 70486).
The change to Table 1 of §§ 121.1115 and 129.115 corrects the compliance date for operators of Airbus A310 and A300–600 series airplanes from 30 to 60 months after January 14, 2011. This change corresponds to the change to Table 1 of § 26.21, is relieving, corrects an inconsistency with the intent of the rule, and does not impact the ability of operators to comply with § 121.1115 or § 129.115. As stated in the preamble of the rule entitled, “Aging Airplane Program: Widespread Fatigue Damage,” the FAA intended to phase in compliance based on the airplane's certification basis relative to § 25.571. We included the A310 and A300–600 series airplanes in Group I, with a compliance time of 30 months, but they should have been incorporated in Group II, with a compliance date of 60 months.
This technical amendment corrects the compliance dates of § 26.21, § 121.1115, and § 129.115 for Airbus A310 and A300–600 series airplanes.
Because the changes in this technical amendment are relieving to affected design approval holders and operators of those airplanes, and results in no substantive change, we find good cause exists under 5 U.S.C. 553(d)(3) to make the amendment effective in less than 30 days.
Aircraft, Aviation safety, Continued airworthiness.
Air carriers, Aircraft, Aviation safety, Continued airworthiness, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration amends Chapter I of Title 14, Code of Federal Regulations, parts 26, 121, and 129, as follows:
49 U.S.C. 106(g), 40113, 44701, 44702 and 44704.
49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701–44702, 44705, 44709–44711, 44713, 44716–44717, 44722, 44901, 44903–44904, 44912, 45101–45105, 46105, 46301.
49 U.S.C. 1372, 40113, 40119, 44101, 44701–44702, 44705, 44709–44711, 44713, 44716–44717, 44722, 44901–44904, 44906, 44912, 46105, Pub. L. 107–71 sec. 104.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding an existing airworthiness directive (AD) for certain Continental Motors, Inc. (CMI) models TSIO–520, TSIO–550–K, TSIOF–550K, and IO–550–N series reciprocating engines with new or rebuilt CMI starter adapters installed between January 1, 2011 and November 20, 2011. That AD currently requires replacing affected CMI starter adapters with starter adapters eligible for installation. This AD requires the same actions, but to an expanded population of reciprocating engines. This AD was prompted by two additional reports received of fractures in starter adapter gear shafts in certain additional part number (P/N) CMI starter adapters since we issued the existing AD. We are issuing this AD to prevent starter adapter gear shaft failure which could cause oil scavenge pump failure and engine in-flight shutdown.
This AD is effective June 8, 2012.
We must receive any comments on this AD by July 9, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Continental Motors, Inc., PO Box 90, Mobile, AL 36601; phone: 251–438–3411, or go to:
You may examine the AD docket on the Internet at
Anthony Holton, Aerospace Engineer, Atlanta Certification Office, FAA, Small Airplane Directorate, 1701 Columbia Avenue, Atlanta, GA 30337; phone: 404–474–5567; fax: 404–474–5606; email:
On December 5, 2011, we issued AD 2011–25–51, Amendment 39–16891 (76 FR 77382, December 13, 2011). That AD applied to certain CMI models TSIO–520, TSIO–550–K, TSIOF–550K, and IO–550–N series reciprocating engines manufactured between January 1, 2011 and November 20, 2011 with certain starter adapters installed. That AD also applied to those same engine models where a replacement new or rebuilt starter adapter from CMI was installed between January 1, 2011 and November 20, 2011. That AD requires replacing affected CMI starter adapters with starter adapters eligible for installation. That AD resulted from five reports of fractures in starter adapter gear shafts in certain P/N CMI starter adapters. We issued that AD to prevent starter adapter gear shaft failure which could cause oil scavenge pump failure and engine in-flight shutdown.
Since we issued AD 2011–25–51 (76 FR 77382, December 13, 2011), we received 2 additional reports of fractures in starter adapter shaft gears in CMI starter adapters not listed in that AD. This AD supersedure expands the population of affected starter adapters by adding five P/Ns, P/Ns 642085A18; 642085A22; R–642085A18; R–642085A19; and R–642085A22, to the applicability. This AD supersedure also expands the applicability from new or rebuilt CMI starter adapters installed between January 1, 2011 and November 20, 2011, to, new or rebuilt CMI starter adapters installed before November 20, 2011.
We are issuing this AD because we evaluated all the relevant information
This AD requires replacing affected CMI starter adapters on affected engines with starter adapters eligible for installation.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the short compliance time required to remove the affected parts from service. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD will affect 225 engines installed on airplanes of U.S. registry. We also estimate that it will take about 4 work-hours per engine to perform the actions required by this AD, and that the average labor rate is $85 per work-hour. Required parts will cost about $500 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $189,000.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective June 8, 2012.
This AD supersedes AD 2011–25–51, Amendment 39–16891 (76 FR 77382, December 13, 2011).
This AD applies to Continental Motors, Inc. (CMI) TSIO–520–B, BB, D, DB, E, EB, J, JB, K, KB, N, NB, UB, VB; TSIO–550–K; TSIOF–550–K; IO–550–N (Turbo-normalized only; STC SE10589SC); with a starter adapter part number (P/N) 642085A17; 642085A18; 642085A19; 642085A20; 642085A22; 642085–1A1, R–642085A17; R–642085A18; R–642085A19; or R–642085A22 installed, where the engine was manufactured before November 20, 2011, or, where a new or rebuilt starter adapter was installed before November 20, 2011.
This AD was prompted by two additional reports received of fractures in starter adapter gear shafts in certain additional P/N CMI starter adapters since we issued AD 2011–25–51 (76 FR 77382, December 13, 2011). We are issuing this AD to prevent starter adapter gear shaft failure which could cause oil scavenge pump failure and engine in-flight shutdown.
Comply with this AD within the compliance times specified, unless already done.
(1) For starter adapters with less than 75 hours of total time-in-service (TIS) on the effective date of this AD, before further flight, replace the starter adapter with a starter adapter eligible for installation.
(2) For starter adapters with between 75 and 100 hours of total TIS, inclusive on the effective date of this AD, within the next 10 hours of engine operation, or before exceeding 100 hours TIS, whichever occurs first, replace the starter adapter with a starter adapter eligible for installation.
(3) For starter adapters with more than 100 hours of total TIS on the effective date of this AD, no further action is required.
For the purpose of this AD, a starter adapter eligible for installation is:
(1) A starter adapter with one of the P/Ns listed in this AD that has a vibro-peened manufacturer code below the ink stamped P/N on the starter adapter, or
(2) A starter adapter with one of the P/Ns listed in this AD that has more than 100 hours total TIS.
The Manager, Atlanta Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For further information about this AD, contact: Anthony Holton, Aerospace Engineer, Atlanta Certification Office, FAA, Small Airplane Directorate, 1701 Columbia Avenue, Atlanta, GA 30337; phone: 404–474–5567; fax: 404–474–5606; email:
(2) CMI Mandatory Service Bulletin No. MSB11–4B, dated April 4, 2012, pertains to this AD.
(3) For copies of the service information referenced in this AD, contact: Continental Motors, Inc., PO Box 90, Mobile, AL 36601; phone: 251–438–3411, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the description of RNAV route Q–130 by changing the name of the MRRNY waypoint to ROCCY. The FAA is taking this action following a pilot deviation incident wherein confusion resulted from the two similarly sounding waypoint names in the Q–130 description. In addition, the FAA is making minor editorial changes to the route description to standardize the format.
Paul Gallant, Airspace, Regulations and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
A recent pilot deviation incident occurred wherein a pilot confused the MRRNY and similar-sounding MIRME waypoints, along RNAV route Q–130, during radio communications with air traffic control. To eliminate future misunderstandings, the FAA is changing the name “MRRNY” to “ROCCY,” This is a name change only as the geographic position of the waypoint remains the same as currently published. In addition, the FAA is making minor editorial changes to the Q–130 description that spells out the names of navigation aids, and adds state names for each waypoint or fix that forms the route. These changes standardize the format of route descriptions and do not affect the alignment of Q–130.
Because this action changes a waypoint name for safety reasons to avoid confusion in radio communications, notice and public procedures under 5 U.S.C. 553(b) are impractical and contrary to the public interest.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by changing the name of the “MRRNY” waypoint in the description of RNAV route Q–130 to “ROCCY.” Additionally, this action makes minor editorial changes to the route description to standardize the format. These changes are editorial only and do not affect the existing alignment of Q–130.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it eliminates confusion on the part of pilots flying in the vicinity of Q–130.
United States area navigation routes are published in paragraph 2006 of FAA Order 7400.9V, effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document will be published subsequently in the Order.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This action is an editorial change to an existing RNAV route description that not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action changes the designated controlling agency for restricted area R–2502E, Fort Irwin, CA, from the Federal Aviation Administration, High-Desert Terminal Radar Approach Control (TRACON), Edwards, CA, to FAA, Los Angeles Air Route Traffic Control Center (ARTCC). This change will improve the efficiency of air traffic operations in the vicinity of Fort Irwin, CA.
Effective date 0901 UTC, July 26, 2012.
Paul Gallant, Airspace, Regulations and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
For operational considerations and improved efficiency of the National Airspace System, the FAA is changing the assigned controlling agency for restricted area R–2502E, Fort Irwin, CA, to “FAA, Los Angeles ARTCC.”
This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 to update the controlling agency for restricted area R–2502E, Fort Irwin, CA. The FAA is changing controlling agency responsibility for R–2502E from “FAA, High-Desert TRACON, Edwards, CA,” to “FAA, Los Angeles ARTCC.”
This is an administrative change and does not affect the boundaries, designated altitudes, or activities conducted within the restricted area; therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.
Section 73.25 of 14 CFR part 73 was republished in FAA Order 7400.8U, effective February 16, 2012.
The FAA has determined that this action only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as amends the description of restricted area R–2502E at Fort Irwin, CA.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 311d. This airspace action is an administrative change to update the assigned controlling agency for R–2502E. It does not alter the altitudes, time of designation or use of the restricted airspace at Fort Irwin, CA, therefore, it is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.
Airspace, Prohibited areas, Restricted areas.
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73, as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
By removing the current Controlling agency and substituting the following:
Controlling agency. FAA, Los Angeles ARTCC.
Federal Aviation Administration (FAA), DOT.
Clarification of prior interpretations.
This action clarifies prior interpretations of FAA's seat belt and seating requirements. These prior interpretations state that the shared use of a single restraint may be permissible. This clarification states that the use of a seat belt and/or seat by more than one occupant is permitted only if the seat usage conforms to the limitations contained in the approved portion of the Airplane Flight Manual (AFM). In addition, before multiple occupants use the same seat and/or seat belt, if the pertinent information is available, the pilot in command (PIC) must also check whether: The seat belt is approved and rated for such use; and the structural strength requirements for the seat are not exceeded. This clarification also emphasizes that, because it is safer for each individual person to have his or her own seat and seat belt, whenever possible, each person onboard an aircraft should voluntarily be seated in a separate seat and be restrained by a separate seat belt.
May 24, 2012.
Alex Zektser, Attorney, Regulations Division, Office of Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–3073; email:
On March 22, 2009, a Pilatus PC–12/45 descended and impacted the ground near the approach end of a runway at Bert Mooney Airport in Butte, Montana. After investigating this incident, the National Transportation Safety Board (NTSB) determined the following.
At the time of the impact, the Pilatus PC–12/45 airplane was operating as a personal flight under the provisions of 14 CFR part 91. The pilot and the 13 airplane passengers were killed, and the airplane was destroyed by impact forces and the postcrash fire. Among the 13 passengers were six adults and seven children. Because the flight was a single-pilot operation, eight seats in the cabin and one seat in the cockpit were available to the 13 passengers. Thus, the number of passengers exceeded the number of available seats. The NTSB was unable to determine the original seating position for most of the occupants, but the bodies of four children, ages 3 to 9 years, were found farthest from the impact site, indicating that these children were likely thrown from the airplane because they were unrestrained or improperly restrained. The NTSB noted that if the accident had been less severe and the impact had been survivable, any unrestrained occupant or occupants sharing a single restraint system would have been at a much greater risk of injury or death.
As a result of the March 22, 2009 incident described above, the NTSB has requested that the FAA withdraw its prior interpretations of 14 CFR 91.107(a)(3), which permit the shared use of a single restraint system. In response to the NTSB's request, the FAA proposed to clarify that § 91.107(a)(3) permits multiple occupants to use one seat belt and/or seat, but that such use is only appropriate if: (1) The belt is approved and rated for this type of use; (2) the structural strength requirements for the seat are not exceeded; and (3) the seat usage conforms with the limitations contained in the approved portion of the AFM (14 CFR 23.1581(j)).
The FAA received six comments in response to its proposed clarification. After considering the information provided in the comments, the FAA clarifies its prior interpretations of the seat belt and seating requirements of 14 CFR 91.107(a)(3) as follows.
For part 91 operations, § 91.107(a)(3) requires that “each person on board a U.S. registered civil aircraft * * * must occupy an approved seat or berth with a safety belt and, if installed, shoulder harness, properly secured about him or her during movement on the surface, takeoff, and landing.” For commercial operations under part 121, § 121.311 requires that each person “occupy an approved seat or berth with a separate safety belt properly secured about him.” Under both parts, children under the age of two may be held by an adult who is occupying an approved seat or berth and no restraining device for the child is used.
When § 121.311 and § 91.107 (previously § 91.14) were first promulgated in 1971, the FAA clarified that the separate use provision for safety belts under part 121 was not intended to apply to part 91 operations. Rather, part 91 “requires only that each person on board occupy a seat or berth with a safety belt properly secured about him.” 36
In its comment, the NTSB stated that the shared use of a single seat belt by multiple occupants is never appropriate because this type of use drastically reduces the safety of the occupants. The NTSB asked the FAA to interpret § 91.107(a)(3) in a way that discourages the “unsafe practice of allowing multiple occupants to share a single seat and/or restraint system that [is] not certified for more than one occupant.”
Because this is a clarification of prior interpretations and not a rulemaking, the FAA is limited in what it can do in this matter. An interpretation of a regulation cannot ignore the “indications of the agency's intent at the time of the regulation's promulgation.”
In addition, the FAA notes that changing § 91.107(a)(3) may have far-reaching consequences that would best be addressed through a rulemaking. For example, in its comment, the NTSB acknowledged that some older airplanes currently have bench-style seating that can accommodate multiple passengers with one restraint system. The FAA notes that airplanes with these bench-style seats make up a significant portion of the part 91 community. In addition, aircraft with these types of seating have a significant diversity in their specific seating restraint arrangements—some aircraft with bench seats have a seat belt equipped for each individual passenger while other aircraft with bench seats have a single shared seat belt for use by everyone in the bench seat. Because a significant portion of the part 91 community currently uses some manner of a shared seat/seat belt, the FAA would need to consider, as part of a rulemaking, the effects that changing § 91.107(a)(3) would have on those members of the part 91 community.
Nevertheless, even though § 91.107(a)(3), as previously interpreted by the agency, may allow for shared use of a single restraint in certain situations, the FAA agrees with NTSB that having each passenger use a separate seat and a separate seat belt can be significantly safer than having passengers share a seat and/or seat belt. Accordingly, the FAA strongly encourages PICs in part 91 operations to ensure, whenever possible, that each passenger is seated in a separate seat and restrained by a separate restraint system. With regard to children, the FAA also strongly encourages children to be restrained in a separate seat by an appropriate child restraint system during takeoff, landing, and turbulence.
In its comments, the NTSB also expressed a concern that this clarification could be interpreted to permit multiple occupants to share a single shoulder harness. In response to NTSB's concern, the FAA emphasizes that the proposed clarification was drafted to address the shared use of seats and/or seat belts—not shoulder harnesses. Because the proposed clarification did not address shoulder harnesses, this clarification is limited solely to the shared use of seats and/or seat belts in part 91 operations.
In their comments, the NTSB and an individual commenter also asserted that the structural strength requirements for a seat and the approval and rating for a seat belt are not always available to a general aviation pilot because this information is typically not included in the AFM. The individual commenter added that many older aircraft do not have an AFM, but instead have an owner's manual that contains even less information.
In response to these comments, the FAA notes that, even though the pertinent information is sometimes not contained in the AFM, information about seat usage limitations and seat belt approval and rating can, in many cases, be obtained from the equipment manufacturer. However, the FAA agrees with the commenters that this information cannot always be obtained from the equipment manufacturer. Accordingly, before multiple occupants are permitted to use the same seat and/or seat belt, if the pertinent information is available, the PIC should check whether: (1) The seat belt is approved and rated for such use; and (2) the structural strength requirements for the seat are not exceeded.
In addition, before seating multiple occupants in the same seat and/or seat belt, PICs should always check to ensure that the seat usage conforms to the limitations contained in the approved portion of the AFM or the owner's manual. Owner's manuals for older aircraft typically show the permissible seating arrangements that are to be used for the aircraft, and the number of people using a seat and/or seat belt should not exceed the number of people shown in the owner's manual seating arrangement.
Consumer Product Safety Commission.
Final rule; revocation; extension of compliance date.
On October 11, 2011, the Consumer Product Safety Commission (“Commission” or “CPSC”) announced that it was revoking its interpretation of the term “unblockable drain,” as used in the Virginia Graeme Baker Pool and Spa Safety Act, 15 U.S.C. 8001 et seq. (“VGBA”). The Commission set a compliance date of May 28, 2012, for those who installed VGBA-compliant drain covers on or before October 11, 2011, in reliance on the Commission's initial interpretation. The Commission sought written comments regarding the ability of those who had installed VGBA-compliant unblockable drain covers on or before October 11, 2011, in reliance on the Commission's initial interpretation, to come into compliance with the revocation by May 28, 2012. The Commission is extending the compliance date to May 23, 2013, for those who have installed VGBA-compliant unblockable drain covers on or before October 11, 2011, in reliance on the Commission's original interpretive rule.
This document does not alter the current requirement that public pools and spas be in compliance with the VGBA, which became effective on December 19, 2008. The compliance date for those who installed VGBA-compliant unblockable drain covers on or before October 11, 2011, in reliance on the Commission's April 27, 2010 interpretation of unblockable drains is extended to May 23, 2013.
Perry Sharpless, Directorate for Laboratory Sciences, Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone (301) 987–2288, or email:
In September 2011, the U.S. Consumer Product Safety Commission voted to publish in the
The majority of comments the Commission received were unrelated to the ability of the respondents to comply with the May 28, 2012 effective date. The comments that did address the May 28, 2012 compliance date fell into four basic categories. These comments were addressed in the staff's briefing memorandum, “Summary of public
1. Cost of compliance (142 comments) and dire financial circumstances (131 comments).
2. Apply prospectively (4 comments).
3. Comments Requesting Delay of Enforcement (2 comments).
4. Compliance Date Is Acceptable (1 comment).
Upon being presented with the staff briefing package, the Commission voted to extend the compliance date to May 23, 2013. Only firms that relied on the unblockable drain interpretive rule of April 27, 2010, and installed VGBA-compliant unblockable drain covers on or before October 11, 2011, will have until May 23, 2013, to install a secondary system, as necessary. Firms that did not rely on the unblockable drain interpretive rule of April 27, 2010, and did not install VGBA-compliant unblockable drain covers on or before October 11, 2011, should be compliant with the VGBA, and will not have additional time to come into compliance if they are not.
Food and Drug Administration, HHS.
Final rule, correction.
The Food and Drug Administration (FDA) is correcting a
Effective June 4, 2012.
Paul E. Levine, Jr., Center for Biologics Evaluation and Research (HFM–17), Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852–1448, 301–827–6210.
In FR Doc. 2012–10649, appearing on page 26162 in the
1. On page 26175, in the second column, in Part 680 Additional Standards for Miscellaneous Products, in § 680.3 Tests, paragraph (c), in line 4, “§ 601.12” is corrected to read “§ 610.12”.
Bureau of Indian Affairs, Interior.
Interim final rule with request for comments.
As required by the No Child Left Behind Act of 2001, the Secretary of the Interior has developed regulations using negotiated rulemaking that address heating, cooling, and lighting standards for Bureau-funded dormitory facilities. These regulations also make a technical change to remove an obsolete reference.
This rule is effective on May 24, 2012. Please submit written comments by June 25, 2012. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
You may submit comments by any of the following methods:
We cannot ensure that comments received after the close of the comment period (see
Regina Gilbert, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary—Indian Affairs, 1001 Indian School Road NW., Suite 312, Albuquerque, NM 87104; telephone (505) 563–3805; fax (505) 563–3811.
The U.S. Government is responsible for educating American Indian children. This Federal duty is executed by the Bureau of Indian Affairs within the Department of the Interior. The Bureau funds 183 schools serving American Indian children. In part because of the low population densities across much of Indian country, a number of these schools include dormitory (“home-living”) facilities. Many of these schools and associated facilities are in poor physical condition.
The No Child Left Behind Act of 2001 (107 Pub. L. 110: 115 Stat. 1425) (Act) included provisions intended to improve the quality of education provided at Bureau-funded schools, and the physical condition of the school facilities. The Act directed the Secretary of the Interior to establish a negotiated rulemaking committee, in accordance with the provisions of the Negotiated Rulemaking Act, to ensure maximum contribution by the affected Indian tribes in responding to the mandates of the Act.
In 2003, the Secretary established a negotiated rulemaking committee, which held a series of meetings to address the mandates of the Act (the 2003 committee). On April 28, 2005, final rules developed by the 2003 committee were published in the
Another section of the Act, codified at 25 U.S.C. 2002, directed that:
The 2003 committee promulgated rules addressing some of the components of section 2002, which were published on December 5, 2007, at 72 FR 68491. However, the 2003 committee had previously announced that:
Standards relating to heating, cooling, and lighting of dormitories for home-living situations should be deferred for later consideration by the negotiated rulemaking committee charged with negotiating school construction under section 1125 of the Act. The Committee determined that it did not have the necessary expertise to define standards for these areas.
The section of the Act referred to by the 2003 committee in the passage quoted above directs the Secretary to form a negotiated rulemaking committee specifically to collect information on the physical condition of the Bureau-funded school facilities, and submit reports to the Secretary and to certain Congressional committees regarding the allocation of funds for the maintenance, repair, and replacement of such facilities. 25 U.S.C. 2005. To comply with that mandate, the Secretary chartered the No Child Left Behind School Facilities and Construction Negotiated Rulemaking Committee on December 8, 2009 (the 2010 committee). Membership of the 2010 committee was published at 74 FR 65784 on December 11, 2009. The 2010 committee has held seven meetings at locations around Indian country through September 2011 to complete its work responding to the mandates of 25 U.S.C. 2005. It has drafted an interim final rule to complete the work responding to the mandates of 25 U.S.C. 2002.
Responsibility for the maintenance, repair, and replacement of Indian school facilities rests with the Office of Facilities Management and Construction (OFMC), under the Assistant Secretary—Indian Affairs. In designing such facilities, OFMC complies with the criteria set out in its “School Facilities Design Handbook” (handbook) dated March 30, 2007, which can be found at
The 2010 committee determined, by consensus, that the codes and standards identified in the handbook respecting heating, ventilation, air conditioning, and lighting are appropriate for home-living (dormitory) situations at Bureau-funded Indian education facilities. Therefore, the regulations being published today:
• Make the building and design codes identified in the handbook mandatory for Bureau-funded Indian education dormitories;
• Require the Bureau to give the public notice and an opportunity to comment on any proposal to change which standard building codes are incorporated in the handbook; and
• Make a technical change to remove reference to subpart H, which is no longer in existence, and replace with a reference to subpart G.
This interim final rule is not a significant rule and the Office of Management and Budget has not reviewed this rule under Executive Order 12866. This rule implements statutory requirements to revise the national standards for home-living (dormitory) situations to include such factors as heating, lighting, and cooling. Such standards shall be implemented in Bureau-operated schools, and shall serve as minimum standards for contract or grant schools.
This rule also makes a technical correction. On April 28, 2005, at 70 FR 21951, subpart H was deleted, and the home-living regulations were placed in subpart G. Therefore, a technical correction is needed to correct the reference of subpart H to subpart G.
1. This rule will not have an effect of $100 million or more on the economy or adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule will have no effect on the economy because it merely establishes the minimum standards for national criteria for home-living situations.
2. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency because the Department is the only agency with Bureau-operated schools. This rule will affect tribes that operate schools that are contract or grant schools by following the minimum requirements for all new construction, major alterations and improvements, and minor remodeling of facilities.
3. This rule does not involve entitlements, grants, user fees, or loan programs or the rights or obligations of recipients. The revisions have no budgetary effects and do not affect the rights or obligations of any recipients.
4. These regulatory changes directly implement statutory provisions and do not raise novel legal or policy issues.
Overall, the impact of the rule is limited to Bureau-operated schools, and tribes that operate schools that are contract or grant schools. Accordingly, this rule is not a “significant regulatory action” from an economic standpoint, nor does it otherwise create any inconsistencies, materially alter any budgetary impacts, or raise novel legal or policy issues.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This interim final rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. Because the standards in this rule are already being met in practice, it will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises.
This interim final rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the
Under the criteria in Executive Order 12630, this interim final rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” A takings implication assessment is not required.
Under the criteria in Executive Order 13132, this interim final rule has no 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. This rule implements a statutory requirement in Public Law 107–110, which requires national standards for home-living (dormitory) situations to include such factors as heating, lighting, and cooling. This Federal rule affects Bureau-operated schools and tribes that operate schools that are contract or grant schools by following the minimum requirements for all new construction, major alterations and improvements, and minor remodeling of facilities.
Because the rule does not affect the Federal government's relationship to the States or the balance of power and responsibilities among various levels of government, it will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This interim final rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have evaluated the potential effects on federally recognized Indian tribes and Indian trust assets and have identified potential effects. The Department engaged tribal government representatives throughout the development of this interim final rule through the establishment of the negotiated rulemaking committee, as required by the No Child Left Behind Act of 2001.
This interim final rule does not require any information to be collected. Therefore, the Paperwork Reduction Act is not required.
This interim final rule does not constitute a major Federal action significantly affecting the quality of the human environment.
In developing this interim final rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106–554).
This interim final rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
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 “COMMENTS” section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.
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.
We are publishing this interim final rule with a request for comment without prior notice and comment, as allowed under 5 U.S.C. 553(b)(B).
Under section 553(b)(B), we find that prior notice and comment are unnecessary and would be contrary to the public interest. This rule codifies standards applicable to school facilities. The 2010 committee wrote this rule after consultation with tribes and to meet the needs of the Bureau-funded dormitory facilities. Delay in publishing this rule could lead to uncertainty about which standards are appropriate for heating, cooling, and lighting in residential facilities, which could lead to substandard living conditions, health problems, and other serious consequences. Delaying the rule by publication of a proposed rule would therefore be contrary to the public interest.
As allowed under 5 U.S.C. 553(d)(3), the effective date of this rule is the date of publication in the
We have requested comments on this interim final rule. We will review any comments received and, by a future publication in the
Educational facilities, Incorporation by reference, Indians—education, School construction.
For the reasons given in the preamble, the Department of the Interior amends 25 CFR part 36 as follows:
Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 U.S.C. 2901, Title I of Pub. L. 101–477.
The national criteria for dormitory situations established under subpart G serve as a minimum requirement and are mandatory for all Bureau-operated and Indian-controlled contract schools.
(a) All dormitories must be designed to meet or exceed the standards for heating, ventilation, cooling, and lighting set out in the building codes in the Bureau of Indian Affairs “School Facilities Design Handbook,” dated March 30, 2007, written and published by the Bureau of Indian Affairs Office of Facilities Management and Construction. The Director of the Federal Register has approved this incorporation by reference in accordance with 5 U.S.C. 552(a). To enforce any edition other than that specified in this section, the Bureau of Indian Affairs must publish notice of change in the
(1) You may obtain a copy of the Handbook at
(2) You may inspect the Handbook at the Department of the Interior Library, Main Interior Building, 1849 C Street NW., Room 1151, Washington, DC 20240; telephone: (202) 208–3796. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030 or go to
(b) If an existing dormitory does not comply with the standards in paragraph (a) of this section, we will classify the discrepancy as “deferred capital maintenance” for purposes of prioritizing correction of the discrepancy.
(c) The Bureau must publish in the
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Special Local Regulation for Hydroplane Races within the Captain of the Port Puget Sound Area of Responsibility for the Tastin' n' Racin' hydroplane event in Lake Sammamish, WA on June 9th and 10th, 2012. This action is necessary to restrict vessel movement in the vicinity of the race courses thereby ensuring the safety of participants and spectators during these events. During the enforcement period non-participant vessels are prohibited from entering the designated race areas. Spectator craft entering, exiting or moving within the spectator area must operate at speeds which will create a minimum wake.
The regulations in 33 CFR 100.1308 will be enforced from 9 a.m. through 6 p.m. on June 9, 2012 and from 9 a.m. through 6 p.m. on June 10, 2012.
If you have questions on this notice, call or email Ensign Anthony P. LaBoy, Sector Puget Sound Waterways Management Division, Coast Guard; telephone 206–217–6323, email
The Coast Guard is providing notice of enforcement of the Special Local Regulation for Hydroplane Races within the Captain of the Port Puget Sound Area of Responsibility 33 CFR 100.1308. The Lake Sammamish area, 33 CFR 100.1308(a)(3) will be enforced on June 9, 2012, from 9 a.m. to 6 p.m. and on June 10, 2012 from 9 a.m. to 6 p.m. These regulations can be found in the March 29, 2011 issue of the
Under the provisions of 33 CFR 100.1308, the regulated area shall be closed for the duration of the event to all vessel traffic not participating in the event and authorized by the event sponsor or Coast Guard Patrol Commander.
When this special local regulation is enforced, non-participant vessels are prohibited from entering the designated race areas unless authorized by the designated on-scene Patrol Commander. Spectator craft may remain in designated spectator areas but must follow the directions of the designated on-scene Patrol Commander. The event sponsor may also function as the designated on-scene Patrol Commander. Spectator craft entering, exiting or moving within the spectator area must operate at speeds which will create a minimum wake.
This notice is issued under authority of 33 CFR 100.1308 and 5 U.S.C. 552(a). In addition to this notice in the
Coast Guard, DHS.
Notice of enforcement of regulations.
The Coast Guard will enforce the events outlined in Tables 1 and 2 taking place throughout the Sector Northern New England Captain of the Port Zone. This action is necessary to protect marine traffic and spectators from the hazards associated with powerboat races, regattas, boat parades, rowing and paddling boat races, swim events, and fireworks displays. During the enforcement period, no person or vessel may enter the Special Local Regulation area or Safety Zone without permission of the Captain of the Port.
The marine events listed in 33 CFR 100.120 and 33 CFR 165.171 will take place during the times and dates specified in Tables 1 and 2 in the
If you have questions on this notice, call or email Lieutenant Junior Grade Terence Leahy, Waterways Management Division at Coast Guard Sector Northern New England, telephone 207–767–0398, email
The Coast Guard will enforce the Special Local Regulations and Safety Zones listed in 33 CFR 100.120 and 33 CFR 165.171. These regulations will be enforced for the duration of each event, on or about the dates indicated in TABLES 1 and 2.
For events where the date is different from the dates previously published for that event, new Temporary Rules may be issued to enforce limited access areas for the marine event. The Coast Guard may patrol each event area under the direction of a designated Coast Guard Patrol Commander. The Patrol Commander may be contacted on Channel 16 VHF–FM (156.8 MHz) by the call sign “PATCOM.” Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the Captain of the Port, Sector Northern New England. For information about regulations and restrictions for waterway use during the effective periods of these events, please refer to 33 CFR 100.120 and 33 CFR 165.171.
This notice is issued under authority of 33 CFR 100.120, 33 CFR 165.171, and 5 U.S.C. 552(a). In addition to this notice in the
Environmental Protection Agency (EPA).
Final rule.
EPA is approving revisions which repeal and replace existing rules, and revisions to the applicable State Implementation Plan (SIP) for New Mexico Albuquerque/Bernalillo County, which relate to fee requirement regulations. The repeal and replace and SIP revisions approved today will address Clean Air Act (the Act or CAA) requirements related to fees for, in part, reviewing and acting on specific permit applications received by the City of Albuquerque/Bernalillo County Environmental Health Department (EHD or Department); fees to partially offset the administrative cost of permit-related administrative hearings; funding for small business stationary sources; and fees to cover administrative expenses incurred by the Department in implementing the New Mexico Air Quality Control Act, the joint Air Quality Control Board (AQCB) ordinances, and the Albuquerque/Bernalillo County AQCB regulations of the New Mexico Statutes Annotated (NMSA) 1978. EPA finds that these rules and revisions comply with applicable provisions of the CAA and is approving them into the SIP. This action is being taken under section 110 of the Act.
This final rule is effective on June 25, 2012.
EPA has established a docket for this action under Docket ID No. EPA–R06–OAR–2007–0154. All documents in the docket are listed on the
The New Mexico submittals are also available for public inspection at the County Air Agency listed below during official business hours by appointment: Air Quality Division, Environmental Health Department, 3rd Floor, Suite 3023, One Civic Plaza NW., Albuquerque, New Mexico.
Ms. Ashley Mohr, Air Permits Section (6PD–R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202–2733, telephone (214) 665–7289; fax number (214) 665–6762; email address
Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows:
The background for today's action is discussed in detail in our November 4, 2011, proposal (76 FR 68385). In that notice, we proposed to approve four submittals from the State of New Mexico that apply in Bernalillo County, pursuant to the CAA, that address the fee requirements specified in the CAA section 110(a)(2). Specifically, the SIP revisions address section 110(a)(2) Clean Air Act (the Act or CAA) requirements related to fees for, in part, reviewing and acting on specific permit applications received by the City of Albuquerque/Bernalillo County Environmental Health Department (EHD or Department); fees to partially offset the administrative cost of permit-related administrative hearings; funding for small business stationary sources; and fees to cover administrative expenses incurred by the Department in implementing the New Mexico Air Quality Control Act, the joint Air Quality Control Board (AQCB) ordinances, and the Albuquerque/Bernalillo County AQCB regulations of the New Mexico Statutes Annotated (NMSA) 1978. New Mexico's SIP submittals are dated May 24, 2011, September 7, 2004, February 2, 2007, and December 15, 2010.
Our November 4, 2011, proposal provides a detailed description of the submittals and the rationale for EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for these actions closed on December 5,
We are fully approving the New Mexico SIP revisions submitted on May 24, 2011, September 7, 2004, February 2, 2007, and December 15, 2010, relating to permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit. This action is being taken under section 110 of the CAA.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 23, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
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 partially approving the State Implementation Plan (SIP) submittal from the State of Washington to demonstrate that the SIP meets the requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the National Ambient Air Quality Standard (NAAQS) promulgated for ozone on July 18, 1997. EPA finds that the current Washington SIP meets the following 110(a)(2) infrastructure elements for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), except for portions related to the major source Prevention of Significant Deterioration (PSD) permitting program which is implemented under a Federal Implementation Plan.
This action is effective on June 25, 2012.
EPA has established a docket for this action under Docket ID No. EPA–R10–OAR–2012–0112. All documents in the docket are listed on the
Jeff Hunt at telephone number: (206) 553–0256, email address:
Throughout this document wherever “we”, “us” or “our” are used, we mean EPA. Information is organized as follows:
On July 18, 1997, EPA promulgated a new NAAQS for ozone. EPA revised the ozone NAAQS to provide an 8-hour averaging period which replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). The CAA requires SIPs meeting the requirements of sections 110(a)(1) and (2) be submitted by states within 3 years after promulgation of a new or revised standard. Sections 110(a)(1) and (2) require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards, so-called ”infrastructure” requirements. To help states meet this statutory requirement for the 1997 8-hour ozone NAAQS, EPA issued guidance to address infrastructure SIP elements under section 110(a)(1) and (2).
This partial SIP approval does not extend to sources or activities located in ”Indian Country” as defined in 18 U.S.C. 1151.
EPA is approving the January 24, 2012, SIP submittal from the State of Washington to demonstrate that the SIP meets the requirements of section 110(a)(1) and (2) of the CAA for the NAAQS promulgated for ozone on July 18, 1997. EPA is approving the following section 110(a)(2) infrastructure elements for Washington
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 23, 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate Matter, and Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
On January 24, 2012, Washington Department of Ecology submitted a certification to address the requirements of CAA Section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS. EPA approves the submittal as meeting the following 110(a)(2) infrastructure elements for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), except for portions related to the major source Prevention of Significant Deterioration (PSD) permitting program which is implemented under a Federal Implementation Plan codified at 40 CFR 52.2497.
Federal Communications Commission.
Final rule; correction.
The Federal Communications Commission (Commission) published in the
Effective on May 24, 2012.
Alex Minard, Wireline Competition Bureau, (202) 418–7400; Email:
The Commission published a document in the
In rule FR Doc. 2012–10631 published at 77 FR 26987, May 8, 2012 make the following correction. On page 26988, in the third column, in the third paragraph, in the second parenthetical of the paragraph, remove “five” and add in its place “two”.
Federal Communications Commission.
Final rule; petition for reconsideration.
In this document, the Federal Communications Commission (Commission) reconsiders and clarifies certain aspects of the
Effective June 25, 2012, except for the amendments made to § 54.313(h) in this document, which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The Federal Communications Commission will publish a document in the
Alexander Minard, Wireline Competition Bureau, (202) 418–7400 or TTY: (202) 418–0484 and Victoria Goldberg, Wireline Competition Bureau, (202) 418–1520.
This is a summary of the Commission's Third Order on Reconsideration in WC Docket Nos. 10–90, 07–135, 05–337, 03–109; GN Docket No. 09–51; CC Docket Nos. 01–92, 96–45; WT Docket No. 10–208; FCC 12–52, released on May 14, 2012. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY–A257, 445 12th Street SW., Washington, DC 20554. Or at the following Internet address:
1. In this Order, we reconsider and clarify certain aspects of the
2. With this standard in mind, in this Order we take several limited actions stemming from reconsideration petitions. We grant in part and deny in part petitions relating to certain aspects of eligible telecommunications carrier (ETC) reporting obligations, while maintaining our overall framework for ETC accountability. We also grant in part and deny in part a petition relating to universal service support adjustments for carriers with artificially low local rates, making a minor adjustment in the timing for the sampling of rates to be used in calculating any such adjustments. We also clarify certain implementation details for both the reporting requirements and the rate floor requirement. In addition, we make a minor adjustment to the rule relating to the calculation of baseline support for competitive carriers serving remote areas of Alaska. We also clarify that the framework established for rate-of-return companies to extend broadband upon reasonable request would take into account any unique circumstances, such as backhaul costs, that may impact the ability of such companies, in Alaska or elsewhere, to extend broadband to their customers. We also deny a number of other requests relating to support for carriers serving Alaska. We deny a request to reconsider which 12 months of revenues will be considered for purposes of defining Eligible Recovery. Finally, we deny a request to reconsider the use of tariff forecasts for calculating the baseline for rate-of-return carriers.
3. In the
4. Rural Associations assert that the
5. We next deny USTelecom's request to clarify that we intended to preempt state reporting requirements when we implemented new § 54.313. As we stated in the
6. We also note that we do not expect state-designated ETCs to report to the Commission information in their 2012 filing that they were not previously required to collect. As the Wireline Competition Bureau stated in the
7. We disagree with the premise of USTelecom's argument that the Commission has violated the PRA by extending § 54.313(a)(1) through (a)(6)'s new reporting requirements to state-designated ETCs. In fact, the Commission sought and has received OMB approval for these provisions. Nor are we persuaded by USTelecom's general argument that the reporting requirements add no value to Commission decision making. As we explained in the
8. Certain petitioners and commenters argue that it is unreasonable to impose the new reporting obligations on competitive ETCs whose support is being phased down. In the
9. In the
10. We hereby revise the filing deadline under § 54.313 to July 1. We do not, however, change the years in which the various filings begin to be due. Many states do not require annual reporting until on or after July 1, and they still have sufficient time to provide the annual section 254(e) certifications to the Commission by October 1.
11. We also revise the filing deadline in § 54.1009(a) for annual reports required of recipients of Mobility Fund Phase I support. In the
12. We also revise the penalty deadlines in § 54.313(j). The Rural Associations argue in their petition that the penalties imposed by § 54.313(j) are “far more onerous than similar prior rules that applied to individual high-cost support mechanisms because it reduces an ETC's entire USF and CAF support.” In fact, however, the Commission merely extended existing rules that applied to federally designated ETCs to all ETCs. These mechanisms are necessary because they “incent prompt filing of requisite certifications and information necessary to calculate support amounts * * * [and] to ensure that support is being used for the intended purposes.” By moving the filing deadline from April 1 to July 1, carriers will have sufficient time to file their annual reports. ETCs that are unable to file their annual reports in a timely manner without cause will receive reduced levels of support commensurate with the lateness of their filings. Thus, a carrier that files late will not immediately lose all support. Rather, that support will be prorated for each quarter the filing is late. Those carriers that need more time can request a waiver, as needed, pursuant to the Commission's rules.
13. We also take this opportunity to clarify that federally designated ETCs should file their § 54.313 annual reports with the commissions of the states in which they operate and with the Tribal authorities, as appropriate. As the Commission noted in the
14. In the
15.
16. As discussed above, we are changing the date that ETCs must file their annual § 54.313 reports, including data required for the rate floor, from April 1 to July 1. Consistent with this broader change to § 54.313, we also change the sampling date set forth in § 54.313(h) from January 1 to June 1. The Commission's intent in specifying January 1 was to select a date relatively close to the annual filing deadline, but with the change of the annual filing deadline to July 1, we conclude that a six-month gap between the original sampling date of January 1 and the new reporting date of July 1 is too long. Thus, we change the sampling date to June 1. Moreover, this conforming rule change addresses Joint Petitioners' request that carriers be permitted additional time to implement rate changes to maintain their eligibility for support before reductions begin on July 1, 2012.
17. In addition, we agree that carriers should be permitted to file mid-year updates when their rates and/or associated fees increase in a way that would reduce or eliminate the amount of any associated support reductions. Permitting mid-year updates in such instances will ensure that only carriers with artificially low rates still in effect will face support reductions. As
18. In addition, we make minor corrections to our rules to make clear that the residential local rate needs only to be reported to the extent that the sum of that rate, and state regulated fees as specified below, is below the effective rate floor, rather than requiring the reporting of all rates. To the extent the local rate plus relevant fees is above the relevant benchmark, there is no need for USAC to have this information in order to calculate any support reductions for lines that fall before the rate floor. We note, however, that all ETCs will be required to report voice and broadband price offerings, which could include rates above the rate floor benchmark, once the Bureau specifies the format for the pricing and service comparability survey and obtains PRA approval. We also note that USAC may collect additional data, subject to PRA approval, as necessary to validate the carriers' rate floor filings. We also clarify an inadvertent inconsistency that exists between the text of the Order and the text of the rules regarding which rates must be reported. We clarify that carriers are required to report all rates for residential local voice service that are under the specified rate floor, and not just rates that are denominated “R–1” rates or “flat” rates. The language used in paragraph 594 of the Order that carriers “must report their flat rate for residential local service to USAC so that USAC can calculate reductions in support levels for those carriers with R1 rates below the specified rate floor” therefore should have read “must report their rates for residential local service to USAC so that USAC can calculate reductions in support levels for those carriers with local residential rates below the specified rate floor” to be consistent with the adopted rule. It is necessary to apply the rate floor to all local residential service rates in order to avoid subsidization of rural rates that are significantly lower than the nationwide urban average, as intended by the Commission in adopting the rate floor.
19. In response to a petition for clarification from the Vermont Public Service Board, we clarify what constitutes the local rate for purposes of the rate floor. For local service provided pursuant to measured or message rate plans—in which customers do not receive unlimited local calling, but instead pay a per-minute or per-call charge for some or all calls—the local service rate reported by carriers should reflect the basic rate for local service plus the additional charges incurred for measured service, using the mean number of minutes or message units for all customers subscribing to that rate plan multiplied by the applicable rate per minute or message unit. Measured service plans typically, but not always, include some units for additional usage—whether the units are minutes or calls—beyond the basic plan. The local service rate to be reported for purposes of the rate floor should include additional charges for measured service only to the extent that the average number of units used by subscribers to that rate plan exceeds the number of units that are included in the plan. Where measured service plans have multiple rates for additional units, such as peak and off-peak rates, the calculation should reflect the average number of units that subscribers to the rate plan pay at each rate. Providers therefore should report a local rate for purposes of the rate floor that accurately reflects the amount that end users are actually paying for local service. Additionally, we clarify that the same methodology will apply to calculating the “R1” or “1FR” Rate Ceiling Component Charge that limits rate increases for end users associated with intercarrier compensation reforms. In particular, this methodology should be used by carriers that do not tariff a flat rate for residential local service that includes unlimited local calling,
20. We next deny the Rural Associations' request for reconsideration. Adopting a rate benchmark of two standard deviations below the nationwide average urban rate could result in a rate benchmark so low as to be meaningless. In any event, the Rural Associations have not provided any analysis to support its request, other than to note that the Commission has previously used a standard deviation analysis to set a different type of rate benchmark. In that case, the Commission used a standard deviation analysis as part of a framework to ensure that basic voice service rates in rural, high-cost areas served by non-rural carriers were not significantly higher than in urban areas. Here the Commission addressed a different issue—ensuring that federal universal service does not subsidize basic voice service rates that are artificially low. Adopting the Rural Associations' proposal would undermine this goal. Moreover, the
21. Similarly, we are unpersuaded by Accipiter's request to abandon the rate floor altogether. A state ratemaking authority may decide to exercise its discretionary authority in a manner that prevents a carrier from avoiding the support reduction associated with low rates, but that would not change the fact that the carrier has excessively low rates and may, in fact, be an indication that the carrier does not require additional subsidization to service the community. The local rate floor is not intended to address broadband rates or components within bundled rates other than voice service, and as such Accipiter's argument regarding its ability to offer bundled services is irrelevant; here, all we are looking at is the rate for local voice service. The Commission sought comment on issues relating to comparability of pricing for broadband in the
22. In this section, we address petitions for reconsideration filed by General Communications, Inc. (GCI) and by the Alaska Rural Coalition relating to several universal service issues in Alaska.
23. At the outset, however, we note that the State of Alaska has expressed concern with the Commission's use of the term “Tribal lands” as that term relates to areas of Alaska. In the
24. In the
25. GCI requests that the Commission reconsider several aspects of how the
26. While we appreciate the significant challenges that carriers serving Alaska face, we are not persuaded that we should reconsider the transition from the prior identical support system to the Mobility Fund for competitive ETCs serving remote portions of Alaska. In the
27. We see no persuasive reason why we should maintain the identical support rule in Alaska given our conclusion that it is an inefficient, poorly targeted mechanism for distributing support to competitive ETCs. Instead, we remain committed to transitioning to an efficient, incentive-based mechanism for ongoing support of mobile service. Because the Commission provided that support for carriers
28. In the alternative, GCI proposes that we make two changes to the interim cap for remote areas of Alaska and revise the baseline amount from which carriers will be phased down after the two-year delay. First, GCI asks that we modify the scope of the interim cap adopted for remote areas of Alaska in the
29. There is only one carrier that serves portions of remote areas of Alaska but did not take advantage of the Covered Locations exception: The competitive ETC Dobson Communications, which was acquired by AT&T several years ago. Under the old interim cap, carriers like AT&T that did not certify that they served Covered Locations received less support per line than carriers that did so certify. GCI proposes that we include AT&T in the remote Alaska mechanism, but continue to provide AT&T with the lower support amount per line that it received by virtue of not taking advantage of the Covered Location exception.
30. GCI argues that including AT&T in the delayed phase-down for remote Alaska will improve incentives for participating carriers to make investments in unserved and underserved areas in remote Alaska. GCI notes that adding AT&T to the remote Alaska mechanism would increase the total size of the cap for remote Alaska and would reduce each carrier's relative share of the total, which means that every time a carrier gains a customer (relative to other carriers), the operation of the cap would result in more of the incremental support associated with that customer “coming from” other carriers rather than the carrier itself. In addition, GCI claims that excluding AT&T from the remote Alaska mechanism would separately reduce AT&T's incentive to invest in those areas.
31. We are not persuaded that we should modify the rule as GCI requests. We note that GCI does not dispute that the cap mechanism provides incentives to make investments in unserved and underserved areas. Rather, GCI argues that its proposal would enhance those incentives. But, while GCI may be correct that, theoretically, a smaller pie (and larger relative shares) means less reward (and thus less incentive) for improving a carrier's position relative to its competitors, the opposite is true about the incentives to avoid losing relative position. That is, with a smaller pie (and larger shares), each carrier has a greater incentive to ensure that it does not lose customers relative to others (and, if others are gaining customers, to ensure that it gains customers proportionately). The incentive argument thus cuts both ways, and we do not find it compelling. Moreover, it is unclear how much the purported differences in incentives, over this time frame, would actually alter carriers' behavior.
32. Nor are we persuaded that AT&T should be added to the remote Alaska mechanism in order to preserve AT&T's incentives to invest. AT&T did not previously take advantage of the Covered Locations exception to the interim cap, which would have provided it with significantly more support. It is speculative that including AT&T in the remote Alaska mechanism would have any material effect on AT&T's plans for investment in Alaska or its conduct vis-à-vis other competitive ETCs in the state. Indeed, in this regard, we note that AT&T neither sought reconsideration of this aspect of the
33. Second, GCI asks that we reconsider the calculation of the remote Alaska interim cap amount. As adopted, the rules provide that the interim cap shall be equal to the sum of support carriers subject to the delayed phase-down received in 2011. GCI suggests that, rather than using the amount of support disbursed in 2011 to set the cap, we should set it by multiplying the number of lines such carriers report on March 30, 2012 (reflecting lines served as of September 30, 2011) by the per-line support amounts in effect on December 31, 2011. GCI asserts that doing so would be more consistent with the purpose of the delayed phase-down mechanism, “to `preserve newly initiated services and facilitate additional investment in still unserved and underserved areas.'” GCI argues that “[a]s written, the rules do not preserve funding for newly initiated services.” As GCI explains, there is normally a delay of 10–12 months between the time service is provided and the time support is received for that service—
34. We are not persuaded that we should alter the interim cap baseline as GCI suggests. The criticisms of the identical support rule—that, among other things, there was no reason to believe it set support amounts at the right level—apply to its operation in Alaska, as elsewhere. In the
35. Finally, GCI requests that we revise the rules relating to the calculation of each carrier's baseline of support—the amount, at the end of the two-year delay, from which each carrier will phase down over the subsequent five years. As adopted, the rules provide that the baseline amount from which carriers will be phased down, for carriers subject to the delayed transition for remote Alaska, should be equal to the amount each such carrier received in 2013. GCI proposes that we modify this baseline in two respects. First, GCI proposes that the baseline not be set “until the delayed phase-down for Remote Alaska actually begins,
36. As GCI observes, the rule as adopted provides no incentive to deploy new services or add new lines after the fourth quarter of 2012 (while beginning to mute incentives to do so even earlier), because new lines added at that point will not be considered as part of the baseline support amount from which each carrier will be phased down. On the other hand, by setting each carrier's phase-down baseline using that carrier's actual line count from the month before the phase down begins, as GCI proposes, carriers' incentives would be maintained until approximately mid-2014, when the phase-down for such carriers is expected to begin. Yet adopting these proposals will have no budgetary impact, because total support distributed to competitive ETCs serving remote Alaska is limited by the overall cap amount. That is, the specific methodology used for calculating each carrier's phase-down baseline determines only each carrier's relative share of the total amount of support available under the cap.
37. We agree with GCI that its proposed revisions would be an improvement, because they would enhance the incentives for carriers to compete and to deploy facilities, without, as GCI notes, impacting the overall budget. For these reasons, we adopt GCI's proposed revisions and revise § 54.307(e) accordingly. Specifically, we alter the rule governing the calculation of support for carriers serving remote Alaska to provide that, rather than freezing support amounts at the end of 2013, support amounts will not be frozen under the delayed phase down mechanism until June 2014 or the last full month prior to the implementation of Mobility Fund Phase II, whichever is later; we also provide that the baseline amount itself shall be the annualized monthly support amount the carrier received for June 2014 or the last full month prior to the implementation of Mobility Fund Phase II, whichever is later. As stated previously, these changes will not affect the budget.
38. The Alaska Rural Coalition also asks us to reconsider and clarify aspects of the
39. We decline to adopt the Alaska Rural Coalition's suggestion. We disagree that the reasons that underlay the Commission's decision to delay the transition for competitive ETCs serving remote Alaska apply to incumbent carriers like the Coalition's members. The Commission adopted the delayed transition for competitive carriers in order to ensure that support would not be reduced until after the mechanism that will provide ongoing support targeted at such carriers—the Mobility Fund Phase II, including its Tribal component—is operational. As explained in the
40. The Alaska Rural Coalition also asks that we reconsider and relax certain broadband requirements that the Commission adopted in this proceeding. The
41. The Alaska Rural Coalition asks that we reconsider these requirements in two respects. First, the Alaska Rural Coalition objects to the requirements imposed on carriers reliant on satellite backhaul, claiming that it “is not convinced that current satellite offerings can reliably meet” the relaxed speed requirements for such carriers. The Coalition asks that “further consideration * * * be given to the cost and realistic capacity of the satellites serving Alaska.” But the Alaska Rural Coalition provides no information about satellite capacity limitations. Indeed, the Coalition does not even actually assert that meeting the relaxed requirements will, in fact, pose a challenge at all. On this record, we are not convinced that we should modify these requirements.
42. The Alaska Rural Coalition also asks that we clarify or reconsider the Commission's conclusion that a carrier may not take advantage of the relaxed broadband requirements if terrestrial backhaul is available to the carrier, but the carrier objects to the cost of obtaining it. For example, the Coalition explains, terrestrial backhaul may be newly present in some areas of Alaska, but carriers may not be able to get access to it at any price, while in other areas, the cost may “far exceed[] the cost of purchasing satellite backhaul, an already cost-prohibitive solution.” The Alaska Rural Coalition further observes that the buildout requirement applicable to rate-of-return carriers—that they deploy broadband “on reasonable request”—provides some potential for flexibility, and it asks whether a request should be deemed unreasonable if the cost of purchasing terrestrial middle mile service to provide broadband service exceeds the high-cost support available for that line. ACS seconds the Coalition's concern, arguing that the Commission should clarify that backhaul is not “available” if it cannot be had “at a price reasonably comparable to prices for backhaul links between urban areas.”
43. We appreciate the concerns raised by the Alaska Rural Coalition and ACS that it may not be cost-effective to serve certain customers due to the high cost of backhaul. Rather than granting a blanket exemption of the broadband obligations established for rate-of-return companies in the
44. We further conclude that it would be premature to modify the deployment requirements applicable to price cap carriers like ACS. Phase I of the Connect America Fund is designed to reach a significant number of relatively low-cost locations for which there is nevertheless no business case for deployment without support. Areas that may be more expensive to deploy broadband to, such as those served by satellite backhaul, will be addressed in ongoing proceedings to implement CAF Phase II, which will employ a model to determine the forward-looking cost of providing broadband to a service area on a granular basis. We conclude that ACS's concerns are more properly considered in the context of the effort to develop appropriate support levels in CAF Phase II, and we therefore decline, at this time, to modify our rule relating to backhaul availability.
45. The Alaska Rural Coalition also requests that we clarify that the new local rate benchmark, which reduces high-cost support to incumbent carriers that offer very low rates, applies to competitive ETCs in Alaska, or, if it does not already apply to such carriers, that we extend the rate benchmark to them. The Coalition argues that imposing the rate floor on all carriers receiving high-cost support is necessary to avoid creating a “significant competitive disadvantage for anyone competing against” a competitive ETC that is not subject to the rate floor.
46. We take this opportunity to clarify that the rate floor does not apply to competitive ETCs; it applies only to incumbent carriers. To eliminate any potential confusion, we modify § 54.318(c) of our rules accordingly. Further, we decline to extend the rate floor to competitive ETCs. Imposing a rate floor on competitive ETCs would be administratively complicated and time-consuming. Most competitive ETCs are mobile wireless carriers, not landline carriers, and because mobile wireless service is sold in different ways, it is not at all obvious how a rate floor could be quickly implemented for such carriers. We also do not find the Alaska Rural Coalition's competitive parity argument compelling in light of the changes that have already been made to support for competitive ETCs, both wireline and wireless. We note, for example, that existing rules provide that support for competitive ETCs will be phased down in most areas of the Nation. Even in remote areas of Alaska, funding under the identical support rule is being phased out, albeit on a delayed basis. Moreover, even in the near term, for carriers serving remote areas of Alaska competitive ETC
47.
48.
49. Additionally, making carriers' actual 2011 interstate revenue requirement the basis of their recovery would create opportunity and incentive for carriers to manipulate their cost studies to increase their recovery. The actual interstate revenue requirements that the Rural Associations suggest we use had not been filed at the time the Order was adopted. Consequently, in preparing cost studies, carriers could adopt study procedures designed to include costs associated with one-time events, extraordinary depreciation, etc. that could improperly increase a carrier's Rate-of-Return Baseline—and thus its Eligible Recovery—for years to come. The Rural Associations cite “review and verification by independent auditors, NECA review procedures, state regulators and other entities” as sufficient to allay concerns that “cost studies might be manipulated * * *.” Given the very significant incentives that the rural carriers' proposed approach would create to increase costs—allowing them to in effect “lock in” higher recovery each year for at least the next several years based upon a single cost study—we are not persuaded that the processes the Rural Associations identify provide sufficiently robust protections compared to using tariff forecasts filed before the
50. This Third Order on Reconsideration contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. It has been or will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection requirements contained in this proceeding.
51. The Regulatory Flexibility Act (RFA) requires that agencies prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
52. We hereby certify that the rule revisions in this Third Order on Reconsideration will not have a significant economic impact on a substantial number of small entities. This Order adopts several revisions to our rules. First, we modify certain of our reporting requirements. Second, we change the sampling date for reporting end user rates. Third, we create a mid-year rate filing update that is voluntary for carriers that increase rates and mandatory for carriers that reduce rates and that are otherwise subject to the annual rate filing requirement. Fourth, we alter our rules so that the capped support mechanism for competitive Eligible Telecommunications Carriers serving remote areas of Alaska will continue until the phase down of support begins, and we set each carrier's baseline amount for the phase down period as the carrier's support amount for the last full month prior to the beginning of the phase down. We conclude that these minor revisions, though they may possibly have some impact on some carriers, are not likely to have a significant economic impact on a substantial number of small entities. The Commission will send a copy of this Order, including this certification, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the Order (or a summary thereof) and certification will be published in the
53. The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act.
54. Accordingly,
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56.
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66.
Communications common carriers, Reporting and recordkeeping requirements, Telecommunications, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 54 as follows:
47 U.S.C. 151, 154(i), 201, 205, 214, 219, 220, 254, 303(r), 403, and 1302 unless otherwise noted.
The revisions read as follows:
(e) * * *
(3) * * *
(iii)
(v)
(5)
(7)
(a) * * *
(10)
(11)
(c) * * *
(1)
(2)
(3)
(4)
(d) In addition to the information and certifications in paragraph (a) of this section, beginning July 1, 2013, price cap carriers receiving high-cost support to offset reductions in access charges shall provide a certification that the support received pursuant to § 54.304 in the prior calendar year was used to build and operate broadband-capable networks used to offer provider's own retail service in areas substantially unserved by an unsubsidized competitor.
(e) * * *
(3)
(f) * * *
(1)
(h)
(2) In addition to the annual filing, local exchange carriers may file updates of their rates for residential local service, as well as state fees as defined pursuant to § 54.318(e), on January 2 of each year. If a local exchange carrier reduces its rates and the sum of the reduced rates and state fees are below the rate floor as defined in § 54.318, the local exchange carrier shall file such an update. For the update, carriers shall report lines and rates in effect as of December 1.
(j)
(1) Eligible telecommunication carriers that file no later than October 1 shall receive support for the second, third and fourth quarters of the subsequent year.
(2) Eligible telecommunication carriers that file no later than January 1 of the subsequent year shall receive support for the third and fourth quarters of the subsequent year.
(3) Eligible telecommunication carriers that file no later than April 1 of the subsequent year shall receive support for the fourth quarter of the subsequent year.
(a) Beginning July 1, 2012, each carrier receiving high-cost support in a study area under this subpart will receive the full amount of high-cost support it otherwise would be entitled to receive if its rates for residential local service plus state regulated fees as defined in paragraph (e) of this section exceed a local urban rate floor representing the national average of local urban rates plus state regulated fees under the schedule specified in paragraph (f) of this section.
(b) Carriers whose rates for residential local service plus state regulated fees offered for voice service are below the specified local urban rate floor under the schedule below plus state regulated fees shall have high-cost support reduced by an amount equal to the extent to which its rates for residential local service plus state regulated fees are below the local urban rate floor, multiplied by the number of lines for which it is receiving support.
(c) This rule will apply only to rate-of-return carriers as defined in § 54.5 and carriers subject to price cap regulation as that term is defined in § 61.3 of this chapter.
(f)
(h) If, due to changes in local service rates, a local exchange carrier makes an updated rate filing pursuant to section 54.313(h)(2), the Universal Service Administrative Company will update the support reduction applied pursuant to paragraphs (b) and (f) of this section.
(i) For the purposes of this section and the reporting of rates pursuant to paragraph 313(h), rates for residential local service provided pursuant to measured or message rate plans or as part of a bundle of services should be calculated as follows:
(1) Rates for measured or message service shall be calculated by adding the basic rate for local service plus the additional charges incurred for measured service, using the mean number of minutes or message units for all customers subscribing to that rate plan multiplied by the applicable rate per minute or message unit. The local service rate includes additional charges for measured service only to the extent that the average number of units used by subscribers to that rate plan exceeds the number of units that are included in the plan. Where measured service plans have multiple rates for additional units, such as peak and off-peak rates, the calculation should reflect the average number of units that subscribers to the rate plan pay at each rate.
(2) For bundled service, the residential local service rate is the local service rate as tariffed, if applicable, or as itemized on end-user bills. If a carrier neither tariffs nor itemizes the local voice service rate on bills for bundled services, the local service rate is the rate of a similar stand-alone local voice service that it offers to consumers in that study area.
(a) A winning bidder authorized to receive Mobility Fund Phase I support shall submit an annual report no later than July 1 in each year for the five years after it was so authorized. Each annual report shall include the following, or reference the inclusion of the following in other reports filed with the Commission for the applicable year:
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (FCC or Commission) adopts rules to help consumers prevent and detect the placement of unauthorized charges on their telephone bills, an unlawful and fraudulent practice commonly referred to as “cramming.” The rules amend the Commission's existing Truth-in-Billing (TiB) rules, build on existing industry efforts to prevent cramming, and apply to wireline telephone carriers. The fact that the number of complaints received by the FCC, the Federal Trade Commission, and state agencies remains high and the widespread nature of cramming are strong evidence that current voluntary industry practices have been ineffective to prevent cramming and make clear the need for additional protection for consumers.
Effective May 24, 2012, except 47 CFR 64.2401 (a)(3) and (f), which contain modified information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a separate document in the
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Lynn Ratnavale,
This is a synopsis of the Commission's Report and Order (
The
1. In the
2. The Commission adopts a rule that wireline carriers clearly and conspicuously notify—at the point of sale, on each bill, and on their Web sites—consumers of blocking options they offer. There is significant record support for this requirement. State and public interest commenters generally support more consumer disclosure and education, but question whether disclosure requirements alone are the most effective means to combat cramming. Carriers urge the Commission not to adopt any sort of disclosure requirement. The Commission disagrees with the carriers that generally oppose clear and conspicuous disclosure of existing blocking options, but affords carriers the flexibility to implement the requirement in the manner that best accomplishes the goal of the rule within the context of each carrier's individual Web site, bill, and point-of-sale scripts. This flexibility should enable carriers to avoid unnecessary costs while providing effective disclosures.
3. The Commission adopts a rule that wireline carriers that place on their telephone bills charges from third parties for non-telecommunications services must place those charges in a distinct section of the bill separate from carrier charges. Carriers also must clearly and conspicuously identify and disclose separate subtotals for charges from carriers and from non-carrier third parties on the payment page of bills. For consumers who do not receive a paper bill, subtotals must be clearly and conspicuously displayed in an equivalent location and in any bill total that is provided to the consumer before the consumer has the opportunity to access an electronic version of the bill, such as in a transmittal email message, on a payment portal, or on a Web page. The Commission believes that these requirements are critical to enabling consumers to detect the most common types of unauthorized charges on their telephone bills. Importantly, the rule does not prohibit carriers from using the same basic format for all third-party charges, provided the format otherwise complies with Commission rules. Although a carrier's compliance with the rule will be determined on a case-by-case basis, a carrier might seek to comply by, for example, designating “Part A” of its bill for carrier charges and “Part B” for non-carrier charges. Similarly, a carrier may prefer “Part A” for its own charges, “Part B” for third-party carrier charges, and “Part C” for non-carrier third-party charges. With clear and conspicuous labeling of each section of the bill, such formats likely would comply with the Commission's requirements. The Commission does not mandate any specific format and carriers have flexibility to develop their own solutions. This rule does not change carrier billing for bundled services. This rule is an incremental step forward from the status quo where many carriers already separate carrier and non-carrier charges on their bills, but may not place the non-carrier third-party charges in a distinct bill section or otherwise clearly and conspicuously differentiate between carrier and non-carrier charges.
4. It likely will take carriers longer to make changes to their billing systems than to provide the required disclosures on Web sites and at points of sale. Given this and the time it will take to obtain OMB approval of these rules, the Commission concludes that it is reasonable to require carriers to implement required changes to their billing systems within 60 days after publication in the
5.
6. Thus, it appears that a significant percentage of the speech that the rules target is not protected by the First
7. Finally, the last prong is satisfied because the rules are proportionate to the substantial interest as an incremental, moderate approach to the prevention of cramming. The rules are narrowly crafted so that they are no more extensive than necessary to further the objective of enhancing the ability of consumers to detect and to prevent unauthorized charges on their telephone bills, and thus they satisfy the third prong of
8. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into FCC 11–106 Notice of Proposed Rulemaking (
9. The record confirms that cramming is a significant and ongoing problem that has affected wireline consumers for over a decade, and drawn the notice of Congress, states, and other federal agencies. The substantial volume of wireline cramming complaints that the Commission, FTC, and states receive underscores the ineffectiveness of voluntary industry practices and highlights the need for additional safeguards. Although the Commission has addressed cramming as an unreasonable practice pursuant to section 201(b) of the Act, there had been no rules that specifically address this practice. In the
10. Blocking is a service many carriers and billing aggregators already make available to consumers; the new requirements will simply make the information about blocking more obvious to consumers when they sign up for telephone service. Requiring a separate section and separate totals for third-party non-carrier charges will also make it easier for a consumer to identify the services for which they are charged without requiring an entirely separate bill or the elimination of such charges from bills.
11. There were no comments filed in direct response to the IRFA. Some commenters, however, raise issues and questions about the impact the proposed rules and policies would have on small entities.
12.
13.
14.
15. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the adopted rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
16.
17.
18.
19. The rules adopted in the
20. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
21.
22.
23.
24. The Commission specifically identified two alternatives to the rules adopted in the
25. The Commission will send a copy of the
26. Pursuant to the authority found in sections 1–2, 4, 201, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151–152, 154, 201, 303(r), and 403, the
27. Pursuant to the authority found in sections 4, 201, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 201, 303(r), and 403, the Commission's rules
28. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Reporting and recordkeeping requirements, Telecommunications, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends part 64 as follows:
47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L. 104–104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, and 620 unless otherwise noted.
(b) These rules shall apply to all telecommunications common carriers and to all bills containing charges for intrastate or interstate services, except as follows:
(1) Sections 64.2401(a)(2), 64.2401(a)(3),
(2) Sections 64.2401(a)(3) and 64.2401(f) shall not apply to bills containing charges only for intrastate services.
(a) * * *
(3) Carriers that place on their telephone bills charges from third parties for non-telecommunications services must place those charges in a distinct section of the bill separate from all carrier charges. Charges in each distinct section of the bill must be separately subtotaled. These separate subtotals for carrier and non-carrier charges also must be clearly and conspicuously displayed along with the bill total on the payment page of a paper bill or equivalent location on an electronic bill. For purposes of this subparagraph “equivalent location on an electronic bill” shall mean any location on an electronic bill where the bill total is displayed and any location where the bill total is displayed before the bill recipient accesses the complete electronic bill, such as in an electronic mail message notifying the bill recipient of the bill and an electronic link or notice on a Web site or electronic payment portal.
(f)
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of regulatory guidance and applicability of “tank vehicle” definition.
On May 9, 2011, FMCSA published a final rule titled “Commercial Driver's License Testing and Commercial Learner's Permit Standards.” Among other things, the rule revised the definition of “tank vehicle.” The change required additional drivers, primarily those transporting certain tanks temporarily attached to the commercial motor vehicle (CMV), to obtain a tank vehicle endorsement on their commercial driver's license (CDL). The Agency has since received numerous questions and requests for clarification. This notice responds to questions about the new definition and the compliance date for
Robert Redmond, Office of Safety Programs, Commercial Driver's License Division, telephone (202) 366–5014 or email
On April 9, 2008, FMCSA issued a notice of proposed rulemaking (NPRM) to amend the CDL knowledge and skills testing standards and establish new minimum Federal standards for States to issue the commercial learner's permit (CLP) (73 FR 19282). On May 9, 2011, FMCSA published the final rule, which made a CLP holder subject to virtually the same requirements as a CDL holder, including the same driver disqualification penalties (76 FR 26854). This final rule also implemented section 4019 of the Transportation Equity Act for the 21st Century (TEA–21), section 4122 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), and section 703 of the Security and Accountability For Every Port Act of 2006 (SAFE Port Act).
For many years, the definition of “tank vehicle” in 49 CFR 383.5 read:
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The change from the NPRM's definition (a single tank with an aggregate capacity of 1000 gallons) to that of the final rule (multiple tanks with an aggregate capacity of 1000 gallons) was made in response to comments to the rulemaking docket.
The Dangerous Goods Advisory Council (DGAC) advised the Agency after publication of the final rule that the revised definition could have a dramatic impact on the number of drivers required to have a tank vehicle endorsement, especially if IBCs were considered tanks covered by the definition. An IBC is a container used for transport and storage of fluids and bulk materials. IBCs are generally cubic in form and, therefore, can transport more material in the same area than cylindrically shaped containers.
The DGAC noted that IBCs—which may have a capacity as high as 3,000 liters but more typically do not exceed 1,000 liters (264 gallons)—are commonly used to transport liquid hazardous materials and are subject to the Department of Transportation's hazardous materials regulations. These packages are frequently transported by less-than-truckload (LTL) carriers. DGAC and others have asked whether FMCSA intended IBCs to be considered tanks, as that term is used in the “tank vehicle” definition. If so, many drivers who had not previously held a tank vehicle endorsement would be required to get one.
FMCSA acknowledges the trucking industry's concerns. However, the Agency intended that the revised definition would cover IBCs secured as indicated by the definition. For example, the aggregate capacity of four or more 1,000-liter IBCs would exceed the 1,000 gallon threshold. Drivers for many LTL carriers will therefore need to obtain a tank vehicle endorsement for their CDLs in order to maintain operational flexibility and to qualify to transport the range of cargo they normally handle.
The Agency includes in this notice new regulatory guidance on this issue. It will be posted to the Agency's Web site with previously published regulatory guidance for the benefit of interested parties and publishing companies that reprint the Federal Motor Carrier Safety Regulations and guidance.
In response to other questions submitted to the Agency since the publication of the final rule on May 9, 2011, FMCSA confirms that the final rule covers IBCs that are attached to the vehicle, whether they are secured by bolts, straps, chains, or by blocking and bracing. The aggregate capacity of the tanks, not the details of their securement, determines the applicability of the rule. As noted above, the Agency includes in this notice new regulatory guidance which clarifies how the new tank vehicle definition covers IBCs, and in doing so emphasizes that the definition covers tanks that are permanently or temporarily attached to the vehicle.
On February 22, 2012, the ATA petitioned FMCSA to revise the tank vehicle definition. This notice and the regulatory guidance address, in part, some of the issues raised by the petition, including the applicability of the definition to IBCs, the transportation of IBCs manifested as empty or residue, and the transportation of empty storage tanks on flatbed vehicles. The Agency granted the ATA petition on March 30, 2012, and is committed to initiate notice-and-comment rulemaking that will seek input on the tank vehicle definition.
The effective date of the final rule was 60 days after publication, or July 8, 2011. While the compliance date for the State requirements under subpart B of 49 CFR part 384 is three years from the effective date of the rule, or July 8, 2014, the definition of tank vehicle is not in subpart B of part 384 and therefore is currently effective. States that adopt amendments to the Federal Motor Carrier Safety Regulations by reference, or complete their administrative adoption procedures relatively quickly, will be able to take action against a driver transporting materials in a tank vehicle without the proper endorsement before July 8, 2014.
FMCSA recommends that drivers affected by the tank vehicle definition obtain the needed endorsement as quickly as possible or investigate the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of regulatory guidance.
FMCSA issues regulatory guidance to clarify that a co-driver may make entries to an automatic on-board recording device (AOBRD) while a commercial motor vehicle (CMV) is in motion. The prohibition in 49 CFR 395.15 against making entries to an AOBRD while the vehicle is in motion pertains only to the current driver. This guidance responds to recent inquiries from manufacturers of recording devices concerning updates to the duty status of co-drivers making the transition from the passenger seat to the sleeper berth or vice versa.
This regulatory guidance is effective May 24, 2012.
Thomas L. Yager, Chief, Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590. Email:
The Motor Carrier Act of 1935 provides that “The Secretary of Transportation may prescribe requirements for (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” [49 U.S.C. 31502(b)].
The Motor Carrier Safety Act of 1984 (MCSA) confers on the Secretary the authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to prescribe safety standards for CMVs. At a minimum, the regulations must ensure that (1) CMVs are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of CMVs do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of CMVs is adequate to enable them to operate the vehicles safely; and (4) the operation of CMVs does not have a deleterious effect on the physical condition of the operator [49 U.S.C. 31136(a)]. The Act also grants the Secretary broad power to “prescribe recordkeeping and reporting requirements” and to “perform other acts the Secretary considers appropriate” [49 U.S.C. 31133(a)(8) and (10)].
The Administrator of FMCSA has been delegated the authority to carry out the functions vested in the Secretary by the Motor Carrier Act of 1935 [49 CFR 1.73(l)] and the MCSA [§ 1.73(g)]. The provisions affected by this Notice of Regulatory Guidance are based on these statutes.
This document adds regulatory guidance to clarify that a co-driver may make entries to an AOBRD while the CMV is in motion. The AOBRD regulation states that duty status may “* * * be updated only when the commercial motor vehicle is at rest * * *” [§ 395.15(i)(2)]. However, this restriction pertains only to the current driver. This guidance is provided in response to recent inquiries from manufacturers of recording devices concerning updates to the duty status of co-drivers making the transition from the passenger seat to the sleeper berth or vice versa.
This guidance will not contribute to distracted driving because the driver is still prohibited from making duty status entries in the AOBRD while driving.
For the reasons explained above, FMCSA issues new Regulatory Guidance, Question 4 to FMCSR § 395.15.
Bureau of Consumer Financial Protection.
Advance notice of proposed rulemaking.
The Consumer Financial Protection Bureau (CFPB or the Bureau) is seeking comment, data, and information from the public about general purpose reloadable (GPR) prepaid cards (GPR cards). GPR cards are a prepaid financial product that have been increasing in popularity and that some consumers now use in a manner similar to a debit card that is linked to a traditional checking account. The Bureau is particularly interested in learning more about this product, including its costs, benefits, and risks to consumers. The Bureau intends to issue a proposal to extend the Regulation E protections to GPR cards. Your comments, in conjunction with other outreach and analysis, will help the Bureau better understand and evaluate any potential consumer protection issues raised by the current design, marketing, and use of this product. This advance notice of proposed rulemaking (ANPR) asks ten broad questions about GPR cards.
Comments on this ANPR must be received by July 23, 2012.
You may submit comments, identified by Docket No. CFPB–20120019 or Regulatory Identification Number (RIN) 3170–AA22, by any of the following methods:
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All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or social security numbers, should not be included. Comments will not be edited to remove any identifying or contact information.
Dan Quan, Financial Analyst; Gregory Evans, Counsel; Bureau of Consumer Financial Protection, 1700 G Street NW., Washington, DC 20552, at (202) 435–7700.
Prepaid cards are one of the fastest growing payment instruments in the United States. The prepaid card market consists of a wide variety of products. Some cards are “closed-loop cards,” which a consumer can use only at a specific merchant or group of merchants. Other cards are “open-loop cards,” which a consumer can use anywhere that accepts payment from a retail electronic payments network, such as Visa, MasterCard, American Express, or Discover. A prepaid card also may or may not be “reloadable,” meaning that the consumer, or other authorized party, can add money to the card after the card is issued.
This ANPR is seeking information about a specific type of prepaid card known as a general purpose reloadable (GPR) card (GPR card). According to projections by the Mercator Advisory Group, the total dollar value of amounts loaded onto GPR cards is expected to reach $167 billion in 2014, far in excess of the amount for 2007 of $12 billion.
The GPR card market is one of the fastest growing segments of the overall prepaid market. According to the Mercator Advisory Group, the total dollar value of funds loaded to GPR cards is expected to grow at an average annual rate of 42% from 2010 to 2014.
Second, some consumers may view and use GPR cards as an alternative to traditional checking accounts. This possibility is reflected in the increase in the number of GPR cards that consumers are loading through direct deposit. The second largest GPR card program manager reported that nearly 42% of its cardholders had direct deposit as of December 31, 2011, as compared to about 14% as of December 31, 2007.
Third, the lack of a comprehensive federal regulatory regime may contribute to market distortions, misaligned incentives, or consumer confusion, as GPR card consumers may mistakenly assume that they possess rights enforceable under federal law. Unlike some other “general-use prepaid cards” such as payroll cards, Regulation E generally does not apply to GPR cards. Many GPR card market participants offer contractual protections similar to those provided in Regulation E for payroll cards, though such provisions may vary, and are subject to unilateral change.
Given the growth in the GPR card market and risk of consumer harm, the Bureau is seeking information to determine how best to implement consumer protection rules for this product. This information will help inform the Bureau as to the contours of any proposed rulemaking concerning GPR cards.
The Electronic Fund Transfer Act (15 U.S.C. 1693
Regulation E generally applies to electronic fund transfers authorizing a financial institution to debit or credit a consumer's account. Examples of types of transfers covered by the Act and regulation include transfers initiated through an automated teller machine (ATM), point-of-sale (POS) terminal, automated clearinghouse (ACH) transactions, telephone bill-payment plans, and remote banking service. Regulation E defines an “account” as “a demand deposit (checking), savings, or other consumer asset account (other than an occasional or incidental credit balance in a credit plan) held directly or indirectly by a financial institution and established primarily for personal, family, or household purposes.” 12 CFR 1005.2(b)(1).
In March 1994, the Board amended Regulation E to extend coverage to electronic benefit transfers (EBTs) issued by government agencies. 59 FR 10678 (March 7, 1994). The Board also amended Regulation E to deem a government agency an “institution” for purposes of the regulation. 12 CFR 1005.15(a). While EBTs became subject to most of the requirements of Regulation E, the Board exempted government agencies providing EBTs from the requirement of providing a periodic statement, so long as the agency makes the consumer's account balance readily available by telephone line and electronically, and the agency provides a written sixty day account history upon request. In response to the Work Opportunity Reconciliation Act of 1996, the Board published a final rule in August 1997 to exempt needs-tested benefits, those based on a person or family's income, from Regulation E. Public Law 104–193, 110 Stat. 2105 (1996); 62 FR 43467, 43468 (Aug. 14, 1997).
In August 2006, the Board published a final rule amending Regulation E to address payroll card accounts. 71 FR 51437 (Aug. 30, 2006); 12 CFR 1005.2(b)(2). The Board's final rule generally did not define employers and third-party service providers as “financial institutions.” The Board's final rule limited Regulation E's applicability to payroll card accounts to those established directly or indirectly through an employer. 12 CFR 1005.2(b)(2). While the Board received comments from consumer groups “urg[ing] the Board to initiate a separate rulemaking to cover additional cards used to deliver important household funds, such as emergency benefit payments, income tax refunds, or loan proceeds, as well as other cards marketed or used as deposit account substitutes,” the Board elected not to do so. The Board was of the view that GPR cards “may only be used for limited purposes or on a short-term basis, and * * * may hold minimal funds” and based on that premise the Board reasoned that “[c]onsumers would derive little benefit from receiving full Regulation E protections for cards * * *, while the issuer's costs of compliance with Regulation E might be significant.” 71 FR 51437, 51440–41. Thus, GPR cards were not included within the definition of “account.”
On May 22, 2009, the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act) was signed into law. Public Law 111–24, 123 Stat. 1734 (2009). The CARD Act amended the EFTA to impose restrictions on a person's ability to impose dormancy fees, service fees, or expiration dates on gift cards, which might take the form of a gift certificate, store gift card, or what was termed a general-use prepaid card. In April 2010, the Board published a final rule to implement these provisions. 75 FR 16580 (Aug. 22, 2010). The Board defined the term “general-use prepaid card,” as a “a card, code, or other device that is: (i) [I]ssued on a prepaid basis primarily for personal, family, or household purposes to a consumer in a
The Bureau is seeking information from the public with respect to GPR cards, including their costs, benefits, and risks to consumers. These comments, in conjunction with other outreach and analysis, will help the Bureau better understand and evaluate potential consumer protection issues for this product. The Bureau will carefully consider the public's input as it formulates a proposal to regulate GPR cards. The Bureau's goals are to ensure that consistent minimum standards apply across similar consumer financial products, to allow consumers to easily compare financial products by ensuring transparent fee disclosure, and to allocate the risks of fraud or loss appropriately. In pursuing these goals, the Bureau will be mindful of avoiding any unnecessary burden on industry.
The Bureau has grouped questions on GPR cards into four broad categories: (A) Regulatory coverage of products by some or all of Regulation E, (B) product fees and disclosures, (C) product features, and (D) other information on GPR cards.
1. How should the CFPB define GPR cards in the context of Regulation E? Should certain prepaid products not be included in this definition, such as cards that may serve a limited purpose (
2. Should only certain aspects of Regulation E be applied to GPR cards? For example, as Regulation E is currently applied to payroll cards, consumers are not guaranteed a periodic paper statement. If possible, please explain why a GPR card's use or structure makes any such modification appropriate. If the Bureau were to propose modifications to the Regulation E protections, what alternative protections or requirements, if any, should the Bureau propose?
3. What steps could the Bureau take to most effectively regulate these products to provide the consumer with transparent, useful, and timely fee disclosures? Should market participants be required to provide disclosure pre-sale, post-sale, or both?
4. How can the Bureau best enable a consumer to compare various GPR cards, or other payment products, that may have different fee structures or be offered through various distribution channels? Many GPR cards offer limited space to disclose contract terms. How should market participants convey the most important contractual terms to consumers to enable them to make educated purchase decisions?
5. Many, but not all, GPR card accounts are insured by Federal Deposit Insurance Corporation (FDIC) pass-through insurance (coverage that “passes through” the agent to the holders of the accounts).
6. Currently, most GPR cards do not offer credit features, such as an “overdraft” feature that may be offered with a debit card that is linked to a traditional checking account. While an overdraft can occur in unusual circumstances, as when a small-item transaction is submitted for settlement without prior authorization or when a submitted transaction exceeds the authorized amount, generally speaking most GPR cardholders may not be able to withdraw or spend more than the funds loaded on the card. Nonetheless, some GPR card programs do allow cardholders to opt in to an overdraft program in which the issuer may authorize overdrafts and charges an overdraft transaction fee. The Bureau seeks public input on the costs, benefits, and consumer protection issues related to any credit features that may be offered by GPR cards.
7. Currently, most GPR cards do not offer a savings account associated with the card. The Bureau seeks public input on the costs, and benefits, and consumer protection issues related to savings features offered with GPR cards.
8. Currently some GPR cards include a feature that claims to offer consumers the opportunity to improve or build credit. Consumers generally need to opt in to this feature, which involves the reporting of certain information to credit reporting agencies. The Bureau seeks public input and data concerning the efficacy of credit reporting features on GPR cards in enabling consumers to improve or build credit. The Bureau also seeks information on whether regulatory provisions should address how such services are marketed to consumers.
9. Through what methods, and under what circumstances, do market participants communicate a change of contract terms, or other information, to cardholders? Are there inventory replacement cycles that drive the printing of cards to stock distribution outlets? Do market participants conduct periodic maintenance of systems during which updating compliance systems would impose less of a burden? If so, how often does this maintenance occur? Are there other issues with respect to the cost of regulatory compliance about which the CFPB should be aware?
10. Is there any other information relevant to GPR cards that will help inform the Bureau as it considers how best to address these products or other issues the Bureau should consider in this regard?
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to all Pratt & Whitney Division (Pratt & Whitney) PW4052, PW4056, PW4060, PW4062, PW4062A, PW4074, PW4077, PW4077D, PW4084D, PW4090, PW4090–3, PW4152, PW4156A, PW4158, PW4164, PW4168, PW4168A, PW4460, and PW4462 turbofan engines. The existing AD currently requires initial and repetitive fluorescent penetrant inspections (FPI) for cracks in the blade locking and loading slots of the high-pressure compressor (HPC) drum rotor disk assembly rear drum. Since we issued that AD, Pratt & Whitney has developed a redesigned HPC drum rotor disk assembly for certain affected engine models. This proposed AD would also require replacement of the 13th, 14th, and 15th stage HPC seals as an additional action and would add an optional terminating action to the repetitive inspection requirements by allowing replacement of the entire HPC drum rotor disk assembly. We are proposing this AD to prevent failure of the HPC drum rotor disk assembly, which could lead to an uncontained engine failure, and damage to the airplane.
We must receive comments on this proposed AD by July 23, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this AD, contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; phone: 860–565–7700; fax: 860–565–1605. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
You may examine the AD docket on the Internet at
James Gray, Aerospace Engineer, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7742; fax: 781–238–7199; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On August 26, 2010, we issued AD 2010–18–13, Amendment 39–16427 (75 FR 55459, September 13, 2010), for all Pratt & Whitney PW4052, PW4056, PW4060, PW4062, PW4062A, PW4074, PW4077, PW4077D, PW4084D, PW4090, PW4090–3, PW4152, PW4156A, PW4158, PW4164, PW4168, PW4168A, PW4460, and PW4462 turbofan engines. That AD requires initial and repetitive FPI for cracks in the blade locking and loading slots of the HPC rear drum. That AD resulted from reports of cracked locking and loading slots in the HPC rear drum. We issued that AD to prevent failure of the HPC drum rotor disk assembly, which could lead to an uncontained engine failure, and damage to the airplane.
Since we issued AD 2010–18–13 (75 FR 55459, September 13, 2010), Pratt & Whitney has developed a redesigned HPC drum rotor disk assembly for PW4000–94″ and PW4000–100″ engine models. The redesign includes new 13th, 14th, and 15th stage HPC seals that lower the temperature in the loading and locking slots and decrease the likelihood of cracking. Based on the risk analysis, it was determined that installing the redesigned 13th, 14th, and 15th stage HPC seals on the original design HPC drum rotor disk assembly is an additional required action to maintain an acceptable level of safety and prevent cracking in the loading and locking slots while the redesigned HPC drum rotor disk assembly is being implemented. The option of installing a redesigned HPC drum rotor disk assembly is considered final corrective action to the repetitive inspections required by this AD.
Prior to publishing AD 2010–18–13 (75 FR 55459, September 13, 2010), we reviewed the technical contents of Pratt & Whitney Service Bulletin (SB) No. PW4ENG 72–796, dated June 11, 2009, SB No. PW4G–100–72–186, Revision 1, dated September 2, 2004, and SB No. PW4G–112–72–264, Revision 2, dated February 23, 2010. Those three SBs describe procedures for performing a local FPI of the HPC rear drum blade locking and loading slots for cracks.
During the development of this proposed AD, we reviewed Pratt & Whitney SB No. PW4ENG 72–816, dated December 2, 2011, and SB No. PW4G–100–72–240, dated November 15, 2011. Those two SBs describe procedures for replacing the 13th, 14th, and 15th stage HPC seals in PW4000–94″ and PW4000–100″ engine models, with redesigned seals. We also reviewed Pratt & Whitney SB No. PW4ENG 72–817, dated December 7, 2011, and SB No. PW4G–100–72–241, dated November 15, 2011. Those two SBs describe procedures for replacing the HPC drum rotor disk assemblies in PW4000–94″ and PW4000–100″ engine models, with redesigned HPC drum rotor disk assemblies.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all of the requirements of AD 2010–18–13 (75 FR 55459, September 13, 2010). This proposed AD would also require replacement of the 13th, 14th, and 15th stage HPC seals with redesigned seals, and would add an optional terminating action to the repetitive inspection requirements by allowing replacement of the HPC drum rotor disk assembly with a redesigned HPC drum rotor disk assembly.
We estimate that this proposed AD would affect 911 engines installed on airplanes of U.S. registry. We also estimate that it would take about 1 work-hour per engine to perform an inspection using an average labor rate of $85 per work-hour. We estimate that there are 770 PW4000–94″ and PW4000–100″ engines that would require replacement of 13th, 14th, and 15th stage HPC seals, at a parts cost of $3,000 per engine. No additional labor is assumed when the replacement is done at piece-part exposure of the HPC drum rotor disk assembly. The replacement parts cost of the redesigned HPC drum rotor disk assembly is $630,000. Based on these figures, we estimate that the total cost of the proposed AD to U.S. operators will be $2,387,435.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2010–18–13, Amendment 39–16427 (75 FR 55459, September 13, 2010), and adding the following new AD:
The FAA must receive comments on this AD action by July 23, 2012.
This AD supersedes AD 2010–18–13, Amendment 39–16427 (75 FR 55459, September 13, 2010).
This AD applies to the following Pratt & Whitney Division (Pratt & Whitney) turbofan engines:
(1) PW4000–94″ engine models PW4052, PW4056, PW4060, PW4062, PW4062A, PW4152, PW4156A, PW4158, PW4460, and PW4462, including those models with any dash number suffix, with a high-pressure compressor (HPC) drum rotor disk assembly listed in Table 1 of this AD.
(2) PW4000–100″ engine models PW4164, PW4168, and PW4168A, with a HPC drum rotor disk assembly listed in Table 1 of this AD.
(3) PW4000–112″ engine models PW4074, PW4077, PW4077D, PW4084D, PW4090, and PW4090–3, with a HPC drum rotor disk assembly listed in Table 1 of this AD.
This AD was prompted by Pratt & Whitney developing a redesigned HPC drum rotor disk assembly for certain affected engine models. We are issuing this AD to prevent failure of the HPC drum rotor disk assembly, which could lead to an uncontained engine failure, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Perform a local fluorescent penetrant inspection for cracks in the HPC drum rotor disk assembly rear drum blade locking and loading slots of the specific stages of the HPC drum rotor disk assemblies from which any
(2) Remove from service any HPC drum rotor disk assembly rear drum found with a crack in any of the blade loading and locking slots.
At the next piece-part exposure of the HPC drum rotor disk assembly after the effective date of this AD:
(1) Replace the 13th, 14th, and 15th stage HPC seals of engines listed in paragraph (c)(1) of this AD in accordance with the Accomplishment Instructions of Pratt & Whitney Service Bulletin (SB) No. PW4ENG 72–816, dated December 2, 2011.
(2) Replace the 13th, 14th, and 15th stage HPC seals of engines listed in paragraph (c)(2) of this AD in accordance with the Accomplishment Instructions of Pratt & Whitney SB No. PW4G–100–72–240, dated November 15, 2011.
As optional terminating action to the repetitive inspection requirements of this AD:
(1) Replace the HPC drum rotor disk assembly of engines listed in paragraph (c)(1) of this AD with a redesigned HPC drum rotor disk assembly in accordance with the Accomplishment Instructions of Pratt & Whitney SB No. PW4ENG 72–817, dated December 7, 2011.
(2) Replace the HPC drum rotor disk assembly of engines listed in paragraph (c)(2) of this AD with a redesigned HPC drum rotor disk assembly in accordance with the Accomplishment Instructions of Pratt & Whitney SB No. PW4G–100–72–241, dated November 15, 2011.
For the purpose of this AD, piece-part exposure means that the HPC drum rotor disk assembly is removed from the engine and completely disassembled.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. AMOCs approved previously in accordance with AD 2010–18–13, Amendment 39–16427 (75 FR 55459, September 13, 2010) are approved as AMOCs for the corresponding requirements in paragraph (f) of this AD.
(1) For more information about this AD, contact James Gray, Aerospace Engineer, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7742; fax: 781–238–7199; email:
(2) For service information identified in this AD, contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; phone: 860–565–7700; fax: 860–565–1605. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
Employee Benefits Security Administration, Labor.
Proposed rule; reopening of comment period.
The Department of Labor's Employee Benefits Security Administration is reopening the period for public comment on proposed regulatory amendments relating to enhanced disclosure concerning target date or similar investments, originally proposed in a previously published document in the
Written comments on the proposed regulation should be received by the Department of Labor no later than July 9, 2012.
Written comments may be submitted to the addresses specified below. All comments will be made available to the public. Warning: Do not include any personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted on the Internet and can be retrieved by most Internet search engines. Comments may be submitted anonymously. Persons submitting comments electronically are encouraged not to submit paper copies.
Comments identified by RIN 1210–AB38 may be submitted by one of the following methods:
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Kristen Zarenko, Office of Regulations and Interpretations, Employee Benefits Security Administration, (202) 693–8500. This is not a toll-free number.
The Employee Benefits Security Administration of the Department of
Throughout this regulatory initiative, the Department has consulted with the Securities and Exchange Commission (Commission). The Department also specifically requested comment in its proposal on whether the final rule should incorporate any of the elements of a rule proposed by the Commission to address concerns regarding the potential for investor misunderstandings about TDFs.
As part of its regulatory process, the Commission recently engaged a consultant to conduct investor testing of comprehension and communication issues relating to TDFs. A report presenting the findings of this research on individual investors' understanding of TDFs and related fund advertisements is publicly available on the Commissions' Web site.
As the results of this research also may be relevant to the Department's proposal, and in order to provide all persons who are interested in this research an opportunity to comment on the report, the Department is reopening the comment period before action is taken to finalize regulatory amendments. The Department invites additional comments on the TDF proposal in light of this new research. To avoid unnecessary duplication, the Department encourages parties who submitted comments to the Commission in response to their reopened comment period, and who consider their comments to be similarly relevant to the Department's review of the above-mentioned research, to submit (or reference) such comments, in response to this request, for inclusion in the Department's public record. Parties also may comment on any other matters that may have an effect on the Department's proposal. Accordingly, the Department is extending the comment period until July 9, 2012.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to temporarily change the enforcement period of one special local regulation for a recurring marine event in the Fifth Coast Guard District, specifically the “Wilmington YMCA Triathlon”, locally known as the “Beach 2 Battleship”, conducted on the waters of Wrightsville Channel near Wrightsville Beach, North Carolina. This Special Local Regulation is necessary to provide for the safety of life on navigable waters during the event, which has been rescheduled from the last Saturday in October or the first or second Saturday in November to the third Saturday in October. This action is intended to restrict vessel traffic on Wrightsville Channel during the swimming portion of this event.
Comments and related material must be received by the Coast Guard on or before June 25, 2012.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, call or email BOSN3 Joseph M. Edge, Coast Guard Sector North Carolina, Coast Guard; telephone 252–247–4525, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, 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. You may submit a request for one, using one of the methods specified under
Annually, since 2008, a regulation has been enforced for the “Wilmington YMCA Triathlon”, locally known as the “Beach 2 Battleship”. The event was recently added to 33 CFR 100.501 on January 19, 2012 in 77 FR 2629. Historically no comments or objections have been received for the regulation. Based on tidal predictions the sponsor has requested a change to the effective dates of this rule.
The YMCA sponsors an annual Triathlon, “Wilmington YMCA Triathlon”, locally known as the “Beach 2 Battleship”, in the Wrightsville Beach area of North Carolina. The Triathlon consists of three events: A running portion, a bike-riding portion, and a swimming portion. The swimming portion of the Triathlon takes place in the waters adjacent to Wrightsville Beach. A special local regulation is effective annually to create a safety zone for the swimming portion of the Triathlon.
The regulation listing annual marine events within the Fifth Coast Guard District and corresponding dates is 33 CFR 100.501. The Table to § 100.501 identifies marine events by Captain of the Port zone. This particular marine event is listed in section (d.) line No. 4 of the table.
The current regulation described in section (d.) line No. 4 of the table indicates the Triathlon should take place this year on October 27, 2012, November 3, 2012 or November 10, 2012, this year. This regulation proposes to change the date for the event to take place on October 20, 2012 for this year only.
The swim portion of the Triathlon, scheduled to take place on Saturday October 20, 2012, will consist of two groups of 950 swimmers entering Banks Channel at the Blockade Runner Hotel and swimming northwest along Motts Channel to Seapath Marine. A fleet of spectator vessels are expected to gather near the event site to view the competition.
To provide for the safety of the participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during this event. The regulation at 33 CFR 100.501 would be enforced from 7 a.m. to 11 a.m. on October 20, 2012; vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.
The Coast Guard proposes to temporarily suspend the regulation listed at section (d.) line No. 4 in the Table to § 100.501 and insert this new temporary regulation at the Table to § 100.501 line No. 5 in order to reflect the change of date for this year's event. This change is needed to accommodate the change in date of the annual Triathlon. No other portion of the Table to § 100.501 or other provisions in § 100.501 shall be affected by this regulation.
This safety zone will restrict vessel movement on the specified waters of Wrightsville Channel, Wrightsville Beach, NC. The regulated area will be established in the interest of participant safety during the swim portion of the “Wilmington YMCA Triathlon” and will be enforced from 7 a.m. to 11 a.m. on October 20, 2012. The Coast Guard, at its discretion, when deemed safe will allow the passage of vessels. During the Marine Event no vessel will be allowed to transit the waterway unless the vessel is given permission from the Patrol Commander to transit the regulated segment of the waterway.
Any vessel transiting the regulated area must do so at a no-wake speed during the effective period. Nothing in this proposed rule negates the requirement to operate at a safe speed as provided in the Navigational Rules and Regulations.
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.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this regulation prevents traffic from transiting waters of Wrightsville Channel during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect. Extensive advance notification will be made to the maritime community via marine information broadcast and local area newspapers so mariners can adjust their plans accordingly. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR 100.501, Table to § 100.501. Vessel traffic will be able to transit the regulated area before and after the races, when the Coast Guard Patrol Commander deems it is safe to do so. Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz).
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners of operators of vessels intending to transit Wrightsville Channel from 7 a.m. to 11 a.m. on October 20, 2012.
This rule will not have a significant economic impact on substantial number of small entities for the following reasons. The regulation will be enforced for only two hours. Although the regulated area will apply to Motts, Banks and Wrightsville Channels, traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the swim course. The Patrol Commander will allow non-participating vessels to transit the event area once all swimmers are safely clear of navigation channels and vessel traffic areas. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. This special local regulation is necessary to provide for the safety of the general public and event participants from potential hazards associated with movement of vessels near the event area. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
This rule is categorically excluded from further review under paragraph 34(h) of Figure 2–1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
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. At § 100.501, in the Table to § 100.501, make the following amendments:
a. Under “(d) Coast Guard Sector North Carolina-COTP Zone,” suspend line 4.
b. Under “(d) Coast Guard Sector North Carolina-COTP Zone,” add temporary line 5 to read as follows:
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing approval of a revision to the Massachusetts State Implementation Plan (SIP) that addresses regional haze for the first planning period from 2008 through 2018. It was submitted by the Massachusetts Department of Environmental Protection (MassDEP) on December 30, 2011. EPA is also proposing to approve, through parallel processing, a supplemental Regional Haze submittal, Proposed Revisions to Massachusetts Regional Haze State Implementation Plan (SIP), which was proposed by the MassDEP for public comment on February 17, 2012. These submittals address the requirements of the Clean Air Act (CAA) and EPA's rules that require States to prevent any future, and remedy any existing, manmade impairment of visibility in mandatory Class I areas (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of
Written comments must be received on or before June 25, 2012.
Submit your comments, identified by Docket ID Number EPA–R01–OAR–2012–0025 by one of the following methods:
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In addition, copies of the State submittal are also available for public inspection during normal business hours, by appointment at the Division of Air Quality Control, Department of Environmental Protection, One Winter Street, 8th Floor, Boston, MA 02108.
Anne McWilliams, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail Code OEP05–02), Boston, MA 02109–3912, telephone number (617) 918–1697, fax number (617) 918–0697, email
Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles and their precursors (e.g., sulfur dioxide, nitrogen oxides, and in some cases, ammonia and volatile organic compounds). Fine particle precursors react in the atmosphere to form fine particulate matter (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range in many Class I areas (i.e., national parks and memorial parks, wilderness areas, and international parks meeting certain size criteria) in the Western United States is 100–150 kilometers, or about one-half to two-thirds of the visual range that would exist without manmade air pollution. In most of the eastern Class I areas of the United States, the average visual range is less than 30 kilometers, or about one-fifth of the visual range that would exist under estimated natural conditions. See 64 FR 35715 (July 1, 1999).
In section 169A(a)(1) of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35714), the Regional Haze Rule. The Regional Haze Rule revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300–309. Some of the main elements of the regional haze requirements are summarized in Section II. The requirement to submit a regional haze SIP applies to all 50 States, the District of Columbia and the Virgin Islands. In 40 CFR 51.308(b), States are required to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007. On January 15, 2009, EPA found that 37 States, the District of Columbia and the U.S. Virgin Islands failed to submit this required implementation plan. See 74 FR 2392 (Jan. 15, 2009). In particular, EPA found that Massachusetts failed to submit a plan that met the requirements of 40 CFR 51.308. See 74 FR 2393. On December 30, 2011, the Division of Air Quality Control of the MassDEP submitted revisions to the Massachusetts SIP to address regional haze as required by 40 CFR 51.308. In addition, on May 2, 2012, MassDEP requested parallel processing of its February 17, 2012 Proposed Revision to Massachusetts Regional Haze SIP. EPA has reviewed Massachusetts' submittals and is proposing to find that they are consistent with the requirements of 40 CFR 51.308 as outlined in Section II.
Successful implementation of the regional haze program will require long-term regional coordination among States, tribal governments and various federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, States need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the States and Tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their States and Tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of PM
The Mid-Atlantic/Northeast Visibility Union (MANE–VU) RPO is a collaborative effort of State governments, tribal governments, and various federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility and other air quality issues in the Northeastern United States. Member State and Tribal governments include: Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Penobscot Indian Nation, Rhode Island, and Vermont.
The Clean Air Interstate Rule (CAIR) required some states to reduce emissions of SO
CAIR was later found to be inconsistent with the requirements of the CAA and the rule was remanded to EPA. See
EPA promulgated the Cross-State Air Pollution Rule (CSAPR), to replace CAIR in 2011 (76 FR 48208, August 8, 2011). Massachusetts was subject to ozone season NO
On December 30, 2011, the D.C. Circuit Court issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the D.C. Circuit stayed CSAPR pending the court's resolutions of the petitions for review of that rule in
On February 17, 2012, MassDEP proposed an amended Alternative to BART. This strategy is discussed in further detail in Section III.B. MassDEP has also requested parallel processing of sections 8.10, 8.11, and 10.5, its revised BART and Long Term Strategy Chapters. Under this procedure, EPA prepared this action before the State's final adoption of this revision. Massachusetts has indicated that they plan to have a final adopted submittal by July 2012, prior to our final action on its Regional Haze SIP. After Massachusetts submits its final adopted revision, EPA will review the submittal to determine whether it differs from the proposed revision. If the final revision does differ from the proposed revision, EPA will determine whether these differences are significant. Based on EPA's determination regarding the significance of any changes in the final revision, EPA would then decide whether it is appropriate to prepare a final rule and describe the changes in the final rulemaking action, re-propose action based on the Massachusetts' final adopted revision, or take such other action as may be appropriate.
Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require States to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install Best Available Retrofit Technology (BART) controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview (dv) as the principal metric for measuring visibility. This visibility metric expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility is determined by measuring the visual range (or deciview), which is the greatest distance, in kilometers or miles, at which a dark object can be viewed against the sky. The deciview is a useful measure for tracking progress in improving visibility, because each deciview change is an equal incremental change in visibility perceived by the human eye. Most people can detect a change in visibility at one deciview.
The deciview is used in expressing Reasonable Progress Goals (RPGs) (which are interim visibility goals towards meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by manmade air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions, i.e., manmade sources of air pollution would no longer impair visibility in Class I areas.
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program and as part of the process for determining reasonable progress, States must calculate the degree of existing visibility impairment at each Class I area within the State at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year planning period. To do this, the RHR requires States to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, States must also develop an estimate of natural visibility conditions for the purposes of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to States regarding how to calculate baseline, natural and current visibility conditions in documents entitled,
For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of impairment for the 20 percent least impaired days and 20 percent most impaired days at the time the regional haze program was established. Using monitoring data from 2000 through 2004, States are required to calculate the average degree of visibility impairment for each Class I area within the State, based on the average of annual values over the five year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the States that establish RPGs for Class I areas for each (approximately) 10-year planning period. The RHR does not mandate specific milestones or rates of progress, but instead calls for States to establish goals that provide for “reasonable progress” toward achieving natural (i.e., “background”) visibility conditions for their Class I areas. In setting RPGs, States must provide for an improvement in visibility for the most impaired days over the (approximately) 10-year period of the SIP, and ensure no degradation in visibility for the least impaired days over the same period.
States have significant discretion in establishing RPGs, but are required to consider the following factors established in the CAA and in EPA's RHR: (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. See 40 CFR 51.308(d)(1)(i)(A). States have considerable flexibility in how they take these factors into consideration, as noted in EPA's July 1, 2007 memorandum from William L. Wehrum, Acting Administrator for Air and Radiation, to EPA Regional Administrators, EPA Regions 1–10, entitled
Section 169A of the CAA directs States to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, the CAA requires States to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing stationary sources built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology” as determined by the State. CAA § 169A(b)(2), 42 U.S.C. 7491(b)(2).
On July 6, 2005, EPA published the
States must address all visibility impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are sulfur dioxide (SO
The RPOs provided air quality modeling to the States to help them in determining whether potential BART sources can be reasonably expected to cause or contribute to visibility impairment in a Class I area. Under the BART Guidelines, States may select an exemption threshold value for their BART modeling, below which a BART eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The State must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the State should not be higher than 0.5 deciviews. See 70 FR 39161 (July 6, 2005).
In their SIPs, States must identify potential BART sources, described as “BART-eligible sources” in the RHR, and document their BART control determination analyses. The term “BART-eligible source” used in the BART Guidelines means the collection of individual emission units at a facility that together comprises the BART-eligible source. See 70 FR 39161 (July 6, 2005). In making BART determinations, section 169A(g)(2) of the CAA requires that States consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. States are free to determine the weight and significance to be assigned to each factor. See 70 FR 39170 (July 6, 2005).
A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a State has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the regional haze SIP, as required by CAA (section 169(g)(4)) and the RHR (40 CFR 51.308(e)(1)(iv)). In addition to what is required by the RHR, general SIP
States may also provide an Alternative to BART demonstration. On October, 13, 2006, EPA finalized “Regional Haze Regulations; Revisions to Provisions Governing Alternative to Source-Specific Best Available Retrofit Technology (BART) Determinations” (71 FR 60612), an alternative emissions program that gives flexibility for states or tribal governments in ways to apply BART. The BART requirements would be satisfied if the alternative program meets or exceeds the visibility benefits resulting from BART. This approach has been approved by the D.C. Circuit.
In 40 CFR 51.308(d)(3) of the RHR, States are required to include a LTS in their SIPs. The LTS is the compilation of all control measures a State will use to meet any applicable RPGs. The LTS must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the State. See 40 CFR 51.308(d)(3).
When a State's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another State, the RHR requires the impacted State to coordinate with the contributing States in order to develop coordinated emissions management strategies. See 40 CFR 51.308(d)(3)(i). In such cases, the contributing State must demonstrate that it has included in its SIP all measures necessary to obtain its share of the emission reductions needed to meet the RPGs for the Class I area. The RPOs have provided forums for significant interstate consultation, but additional consultations between States may be required to sufficiently address interstate visibility issues. This is especially true where two States belong to different RPOs.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, States must describe how each of the seven factors listed below is taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the State for these purposes; (6) enforceability of emissions limitations and control measures; (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS. See 40 CFR 51.308(d)(3)(v).
As part of the RHR, EPA revised 40 CFR 51.306(c) regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the State's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the State must revise its plan to provide for review and revision of a coordinated LTS for addressing reasonably attributable and regional haze visibility impairment, and the State must submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTS's, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic reviews of a State's LTS must report on both regional haze and RAVI impairment and must be submitted to EPA as a SIP revision.
In 40 CFR 51.308(d)(4), the RHR requires a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the State. The strategy must be coordinated with the monitoring strategy required in 40 CFR 51.305 for RAVI. Compliance with this requirement may be met through participation in the Interagency Monitoring of Protected Visual Environments (IMPROVE) network. The monitoring strategy is due with the first regional haze SIP, and it must be reviewed every five years. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether RPGs will be met.
The SIP must also provide for the following:
• Procedures for using monitoring data and other information in a State with mandatory Class I areas to determine the contribution of emissions from within the State to regional haze visibility impairment at Class I areas both within and outside the State;
• Procedures for using monitoring data and other information in a State with no mandatory Class I areas to determine the contribution of emissions from within the State to regional haze visibility impairment at Class I areas in other States;
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the State, and where possible, in electronic format;
• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A State must also make a commitment to update the inventory periodically; and
• Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
Pursuant to 40 CFR 51.308(f) of the RHR, state control strategies must cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of 40 CFR 51.308(d) with the exception of BART. The BART provisions of 40 CFR 51.308(e), as noted above, apply only to the first implementation period. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that States consult with FLMs before adopting and submitting their SIPs. See 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This
On December 30, 2011, the Division of Air Quality Control of the MassDEP submitted revisions to the Massachusetts SIP to address regional haze as required by 40 CFR 51.308. In addition, on May 2, 2012, MassDEP requested parallel processing of its February 17, 2012 Proposed Revision to Massachusetts Regional Haze SIP. EPA has reviewed Massachusetts' submittals and is proposing to find that they are consistent with the requirements of 40 CFR 51.308 as outlined in Section II. A detailed analysis follows.
Massachusetts is responsible for developing a regional haze SIP which addresses Massachusetts' impact on any nearby Class I areas. As Massachusetts has no Class I areas within its borders, Massachusetts is not required to address the following Regional Haze SIP elements: (a) Calculation of baseline and natural visibility conditions; (b) establishment of reasonable progress goals; (c) monitoring requirements; and (d) RAVI requirements.
Massachusetts is a member of the MANE–VU RPO. The MANE–VU RPO contains seven Class I areas in four States: Moosehorn Wilderness Area, Acadia National Park, and Roosevelt/Campobello International Park in Maine; Presidential Range/Dry River Wilderness Area and Great Gulf Wilderness Area in New Hampshire; Brigantine Wilderness Area in New Jersey; and Lye Brook Wilderness Area in Vermont.
Through source apportionment modeling, MANE–VU assisted States in determining their contribution to the visibility impairment of each Class I area in the MANE–VU region. Massachusetts and the other MANE–VU States adopted a weight-of-evidence approach which relied on several independent methods for assessing the contribution of different sources and geographic source regions to regional haze in the northeastern and mid-Atlantic portions of the United States. Details about each technique can be found in the Northeast States for Coordinated Air Use Management (NESCAUM) document
The MANE–VU Class I States determined that any State contributing at least 2.0% of the total sulfate (the main contributor to visibility impairment in the Northeast, see Section III.C.3) observed on the 20 percent worst visibility days in 2002 was a contributor to visibility impairment at the Class I areas. Massachusetts emissions were found to contribute to the total annual average sulfate at the nearby Class I areas: Acadia National Park, Maine (10.11% of total sulfate); Moosehorn Wilderness Area, Maine and Roosevelt Campobello International Park (6.78% of total sulfate); Great Gulf Wilderness Area and Presidential Range Dry River, New Hampshire (3.11% of total sulfate); Lye Brook Wilderness Area (2.45% of total sulfate); and Brigantine Wilderness Area, New Jersey (2.73% of total sulfate). The impact of sulfate on visibility is discussed in greater detail below.
EPA is proposing to find that Massachusetts has adequately demonstrated that emissions from sources within the State cause or contribute to visibility impairment in nearby Class I Areas.
According to 51.308(e), “The State must submit an implementation plan containing emission limitations representing BART and schedules for compliance with BART for each BART-eligible source that may reasonably be anticipated to cause or contribute to any impairment of visibility in any Class I Federal area, unless the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions.” On October 13, 2006, EPA's “Regional Haze Regulations; Revisions to Provisions Governing Alternative to Source-Specific Best Available Retrofit Technology (BART) Determinations; Final Rule” (hereinafter known as the “Alternative to BART Rule”) was published in the
(1) A list of all BART-eligible sources within the State.
(2) A list of all BART-eligible sources and all BART source categories covered by the alternative program.
(3) Determination of the BART benchmark. If the alternative program has been designed to meet a requirement other than BART, as in the case of Massachusetts, the State may determine the best system of continuous emission control technology and associated emission reductions for similar types of sources within a source category based on both source specific and category-wide information, as appropriate.
(4) An analysis of the projected emission reductions achieved through the alternative program.
(5) A determination based on a clear weight of evidence that the alternative program achieves greater reasonable progress than would be achieved through the installation and operation of BART at the covered sources.
As allowed by the Regional Haze Rule, Massachusetts opted to pursue source by source BART determinations for select sources and demonstrate an Alternative to BART for other sources.
Determining BART-eligible sources is the first step in the BART process. BART-eligible sources in Massachusetts were identified in accordance with the methodology in Appendix Y of the Regional Haze Rule,
• The unit falls into one of the listed source categories;
• The unit was constructed or reconstructed between 1962 and 1977; and
• The unit has the potential to emit over 250 tons per year of sulfur dioxide, nitrogen oxides, particulate matter, volatile organic compounds, or ammonia.
The BART Guidelines require States to address SO
The identification of BART sources in Massachusetts was undertaken as part of a multi-State analysis conducted by the NESCAUM. NESCAUM worked with MassDEP licensing engineers to review all sources and determine their BART eligibility. MassDEP identified twenty-nine sources as BART-eligible. The Massachusetts BART eligible sources are listed in Table 1. Three of the sources are petroleum storage facilities (Exxon Mobile-Everett, Global Petroleum—Revere, and Gulf Oil—Chelsea) with VOC emissions.
Consistent with the BART Guidelines, the State of Massachusetts did not evaluate emissions of VOCs in BART determinations due to the lack of impact on visibility in the area due to anthropogenic sources. The majority of VOC emissions in Massachusetts are biogenic in nature. Therefore, the ability to further reduce total ambient VOC concentrations at Class I areas is limited. Point, area, and mobile sources of VOCs in Massachusetts are already comprehensively controlled as part of an ozone attainment and maintenance strategy.
Nor did Massachusetts evaluate ammonia. The overall ammonia inventory is very uncertain, but the amount of anthropogenic emissions at sources that were BART-eligible is relatively small, and no additional sources were identified that had greater than 250 tons per year ammonia and required a BART analysis.
BART applies to sources with the potential to emit 250 tons or more per year of any visibility impairing pollutant. (70 FR 39160). BART-eligible sources that adopt a federally enforceable permit limit to permanently limit emissions of visibility impairing pollutants to less than 250 tons per year (tpy) may thereby “cap-out” of BART. See 70 FR 39112. One Massachusetts source capped out of BART by taking such limits, General Electric-Lynn Unit 3. Actual emissions of visibility impairing pollutants from General Electric-Lynn Unit 3 are less than the 250 tons per year threshold. Pursuant to the request of the source, MassDEP has established a federally enforceable permit condition that limits the potential to emit (PTE) NO
Massachusetts, working with MANE–VU, found that almost every MANE–VU state with BART-eligible sources contributes to visibility impairment at one or more Class I areas to a significant degree (See the MANE–VU Contribution Report). As a result, Massachusetts found that all BART eligible sources within Massachusetts are subject to BART.
According to Section III of the Guidelines, once the state has compiled its list of BART-eligible sources, it needs to determine whether to make BART determinations for all of the sources or to consider exempting some of them from BART because they may not reasonably be anticipated to cause or contribute to any visibility impairment in a Class I area.
Based on the collective importance of BART sources, Massachusetts decided that no exemptions would be given for sources.
MANE–VU conducted modeling analyses of BART-eligible sources using the EPA approved air quality model, California Pollution Model (CALPUFF), in order to provide a regionally-consistent foundation for assessing the degree of visibility improvement which could result from the installation of BART controls.
The MANE–VU modeling effort analyzed 136 BART-eligible sources in the MANE–VU region using the CALPUFF modeling platform and two meteorological data sets: (1) A wind field based on National Weather Service (NWS) observations; and (2) a wind field based on the Pennsylvania State University/National Center for Atmospheric Research Mesoscale Meteorological Model (MM5) version 3.6. Modeling results from both the NWS and MM5 platforms include each BART eligible unit's maximum 24-hr, 8th highest 24-hr, and annual average impact at the Class I area.
The 2002 baseline modeling provides an estimate of the maximum improvement in visibility at Class I Areas in the region that could result from the installation of BART controls (the maximum improvement is equivalent to a “zero-out” of emissions). In virtually all cases, the installation of BART controls would result in less visibility improvement than what is represented by a source's 2002 impact, but this approach does provide a consistent means of identifying those sources with the greatest contribution to visibility impairment.
In addition to modeling the maximum potential improvement from BART, MANE–VU also determined that 98 percent of the cumulative visibility impact from all MANE–VU BART eligible sources corresponds to a maximum 24-hr impact of 0.22 dv from the NWS-driven data and 0.29 dv from the MM5 data. As a result, MANE–VU concluded that, on the average, a range of 0.2 to 0.3 dv would represent a significant impact at MANE–VU Class I areas, and sources having less than 0.1 dv impact are unlikely to warrant additional controls under BART.
For Massachusetts, sources with visibility impact of 0.1 dv or less are: Braintree Electric Unit 3; Harvard University—Blackstone Units 11 and 12; Mirant- Kendall Units 1 and 2; New Boston Unit 1; Eastman Gelatin Units 1, 2, 3, and 4; Solutia; and Trigen—Kneeland Unit 3.
The Regional Haze Rule allows Massachusetts to either make individual BART determinations or to implement
Wheelabrator-Saugus is a municipal waste combustor which contains two mass burn incinerators with water wall boilers, each rated at 325 MMBtu/hr heat input. Both incinerator units are BART-eligible, with reported combined 2002 emissions of 84 tons of SO
Wheelabrator has NO
Wheelabrator's existing control technology for SO
Each of Wheelabrator's units is equipped with 10-module fabric filters (baghouses) and is subject to a PM emission limit 27 mg/dscm or less at 7 percent oxygen (dry basis). On March 14, 2012, MassDEP issued an ECP Modified Final Approval for Wheelabrator that reduced its PM emission limit to 25 mg/dscm or less at 7 percent oxygen (dry basis). Massachusetts determined that additional PM controls were not warranted given the additional cost of installation and the already strict controls in place at Wheelabrator.
EPA has reviewed the Massachusetts analysis and concluded it was conducted in a manner consistent with EPA's BART Guidelines. The proposed NO
To address the BART requirement for the remaining sources subject to BART, Massachusetts opted to implement an “Alternative to BART” measure.
In crafting Massachusetts' Alternative to BART demonstration, the State relied on: SO
The Massachusetts Alternative to BART includes emission reductions from all of the remaining BART-eligible EGUs, as well as, select EGUs determined to be too old to meet the definition of BART-eligible.
In developing the BART benchmark,
The Massachusetts Alternative to BART is comprised of:
• 310 CMR 7.29, “Emission Standards for Power Plants,” which establishes SO
• Permit restrictions for Mount Tom Station, Brayton Point Station, and Salem Harbor that disallow the use of 310 CMR 7.29 SO
• An annual cap of 300 tons of SO
• The retirement of Somerset Power in 2010.
• MassDEP's proposed low sulfur fuel oil regulation, which would require EGUs that burn residual oil to limit the sulfur content to 0.5% by weight beginning July 1, 2014.
Massachusetts included previously adopted 310 CMR 7.29, “Emission Standards for Power Plants,” as part of its February 17, 2012 proposed Regional Haze SIP supplement. 310 CMR 7.29 was adopted in 2001 as a means to reduce NO
On May 15, 2009, MassDEP issued an amended Emission Control Plan Final Approval
On February 17, 2012, at Salem Harbor's request, MassDEP proposed an Amended Emission Control Plan
Instead of complying with 310 CMR 7.29, Somerset Power ceased operating in 2010, and on June 22, 2011, at Somerset Power's request, MassDEP issued a letter that revoked all air approvals and permits for the facility and deemed all pending permit applications withdrawn.
The final component of the Massachusetts Alternative to BART is the MassDEP proposed amendment to 310 CMR 7.05, “Fuels All Districts,” to lower the allowable sulfur content of distillate oil and residual oil combusted by stationary sources. For residual oil, 310 CMR 7.05 currently includes a range of sulfate content limits, from 0.5% to 2.2%, depending on the area of the state. The proposed amendment would establish a 0.5% sulfur content limit for power plants as of July 1, 2014.
Table 3 shows the BART benchmark projected SO
Table 4 shows the Alternative to BART estimated SO
Section 40 CFR 51.308(e)(3) provides a process for determining whether an alternative measure makes greater reasonable progress than would be achieved through the installation and operation of BART. If the geographic distribution of emission reductions is similar between an alternative measure and BART, the comparison of the two measures may be made on the basis of emissions alone. The alternative measure may be deemed to make greater progress than BART if it results in greater emission reductions than requiring sources subject to BART to install, operate, and maintain BART. In this case, the Alternative to BART achieves greater emission reductions than BART. Aside from Mount Tom, all of the Alternative to BART sources are coastally located EGUs in Eastern Massachusetts—two of which, Brayton Point and Somerset, are located in the same municipality. Massachusetts concluded that the geographic distribution of emission reductions is not significantly different than the application of source specific BART. Therefore, Massachusetts determined that its Alternative to BART for SO
The Massachusetts Alternative to BART for NO
• 310 CMR 7.29, “Emissions Standards for Power Plants,” which establishes NO
• An annual cap of 276 tons of NO
• The retirement of Somerset Power in 2010.
• 310 CMR 7.19, “Reasonably Available Control Technology (RACT) for Sources of Oxides of Nitrogen NO
MassDEP's existing regulation 310 CMR 7.29, “Emission Standards for Power Plants” establishes a rolling 12-month average NO
On February 17, 2012, at Salem Harbor's request, MassDEP proposed an Amended ECP Approval
Somerset Power ceased operating in 2010, and on June 22, 2011, at Somerset's Power's request, MassDEP issued a letter
MassDEP's existing regulation 310 CMR 7.19 establishes NO
Table 5 shows the BART benchmark NO
Table 6 shows the Alternative to BART NO
As with SO
EPA is proposing to find that Massachusetts has demonstrated that the Alternative to BART achieves greater SO
Massachusetts' proposed Alternative to BART does not cover PM
CALPUFF modeling of the 2002 PM emissions at these facilities shows an impact that was well below the 0.1 dv on the worst day at affected Class I areas, for each unit and cumulatively, which is the level MANE–VU has identified that the degree of visibility improvement is so small (<0.1 dv) that no reasonable weighting of factors could justify additional controls under BART. The visibility would be even lower today based on the emission reductions achieved since 2002. Massachusetts therefore determined that no additional controls are warranted for primary PM
EPA is proposing to approve Massachusetts' determination that further primary PM control beyond the controls already implemented by Massachusetts' BART-eligible units is not warranted at this time as such measures are not cost-effective and the visibility contribution from Massachusetts' BART-eligible units with respect to PM is insignificant.
The BART emission limits referenced above are enforceable through a variety of mechanisms. Specifically, MassDEP's 310 CMR 7.19, “Reasonably Available Control Technology (RACT) of Sources of Oxides of Nitrogen (NO
Pursuant to MassDEP's request for parallel processing of the proposed SIP revision, EPA is proposing approval of Massachusetts' Final ECP Approval—Wheelabrator Saugus, Amended ECP for Brayton Point, Amended ECP for Salem Harbor Station, Amended ECP for Mount Tom Station, Amended ECP for Somerset Station, and previously adopted 310 CMR 7.29, “Emission Standards for Power Plants,” and proposed Amendments to 310 CMR 7.05, “Fuels all Districts” and 310 CMR 7.00, “Definitions.” After the State submits the final version of the February 17, 2012 proposed SIP revision (including a response to all public comments raised during the State's public participation process), EPA will prepare a final rulemaking notice. If the State's formal SIP submittal contains changes which occur after EPA's notice of proposed rulemaking, such changes must be described in EPA's final rulemaking action. If the State's changes are significant, then EPA must decide whether to finalize approval with a description of the changes, re-propose our action with regard to the State's SIP submittal, or take other action as may be appropriate.
As described in Section II.E of this action, the LTS is a compilation of State-specific control measures relied on by the State to obtain its share of emission reductions to support the RPGs established by Maine, New Hampshire, Vermont, and New Jersey, the nearby Class I area States. Massachusetts' LTS for the first implementation period addresses the emissions reductions from federal, State, and local controls that take effect in the State from the baseline period starting in 2002 until 2018. Massachusetts participated in the MANE–VU regional strategy development process and supported a regional approach towards deciding which control measures to pursue for regional haze, which was based on technical analyses documented in the following reports:
(a) The Contribution Report; (b)
The State-wide emissions inventories used by MANE–VU in its regional haze technical analyses were developed by MARAMA for MANE–VU with assistance from Massachusetts. The 2018 emissions inventory was developed by projecting 2002 emissions forward based on assumptions regarding emissions growth due to projected increases in economic activity and emissions reductions expected from federal and State regulations. MANE–VU's emissions inventories included estimates of NO
MANE–VU developed emissions inventories for four inventory source classifications: (1) Stationary point sources, (2) stationary area sources, (3) non-road mobile sources, and (4) on-road mobile sources. The New York Department of Environmental Conservation also developed an inventory of biogenic emissions for the entire MANE–VU region. Stationary point sources are those sources that emit greater than a specified tonnage per year, depending on the pollutant, with data provided at the facility level. Stationary area sources are those sources whose individual emissions are relatively small, but due to the large number of these sources, the collective emissions from the source category could be significant. Non-road mobile sources are equipment that can move but do not use the roadways. On-road mobile source emissions are automobiles, trucks, and motorcycles that use the roadway system. The emissions from these sources are estimated by vehicle type and road type. Biogenic sources are natural sources like trees, crops, grasses, and natural decay of plants. Stationary point sources emission data is tracked at the facility level. For all other source types, emissions are summed on the county level.
There are many federal and State control programs being implemented that MANE–VU and Massachusetts anticipate will reduce emissions between the baseline period and 2018. Emission reductions from these control programs in the MANE–VU region were projected to achieve substantial visibility improvement by 2018 at all of the MANE–VU Class I areas. To assess emissions reductions from ongoing air pollution control programs, BART, and reasonable progress goals, MANE–VU developed 2018 emissions projections called “Best and Final.” The emissions inventory provided by the Commonwealth of Massachusetts for the Best and Final 2018 projections is based on expected control requirements.
Massachusetts relied on emission reductions from the following ongoing and expected air pollution control programs as part of the State's long term strategy. For electrical generating units (EGUs), Massachusetts relied on 310 CMR 7.29, “Emissions Standards for Power Plants” which limits SO
On July 30, 2007, the U.S. Court of Appeals for the District of Columbia vacated and remanded the Industrial Boiler MACT Rule.
On December 2, 2011, EPA issued a proposed reconsideration of the MACT standards for existing and new boilers at major (76 FR 80598) and area (76 FR 80532) source facilities, and for Commercial and Industrial Solid Waste Incinerators (76 FR 80452). On January 9, 2012, the U.S. District Court for the District of Columbia vacated EPA's stay of the effectiveness date of the Industrial Boiler MACT, reinstating the original effective date and therefore requiring compliance with the current rule in 2014.
Even though Massachusetts' modeling is based on the old Industrial Boiler MACT limits, Massachusetts' modeling conclusions are unlikely to be affected because the expected reductions in SO
Controls on area sources expected by 2018 include: VOC rules for consumer products (310 CMR 7.25(12)); VOC control measures for architectural and industrial maintenance coatings (310 CMR 7.25(11)) and solvent cleaning (310 CMR 7.18(8)); VOC control measures for cutback asphalt paving (310 CMR 7.18(9)); and VOC control measures for portable fuel containers (contained in EPA's Mobile Source Air Toxics rule).
Controls on mobile sources expected by 2018 include: enhanced inspection and maintenance (I/M) inspection for 1984 and new vehicles (310 CMR 60.02); Federal On-Board Refueling Vapor Recovery (ORVR) Rule; Federal Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Requirements; Federal Heavy-Duty Diesel Engine Emission Standards for Trucks and Buses; and Federal Emission Standards for Large Industrial Spark-Ignition Engines and Recreation Vehicles.
Controls on non-road sources expected by 2018 include the following federal regulations: Control of Air Pollution: Determination of Significance for Nonroad Sources and Emission Standards for New Nonroad Compression Ignition Engines at or above 37 kilowatts (59 FR 31306, June 17, 1994); Control of Emissions of Air Pollution from Nonroad Diesel Engines (63 FR 56967, Oct. 23, 1998); Control of Emissions from Nonroad Large Spark-Ignition Engines and Recreational Engines (67 FR 68241, Nov. 8, 2002); and Control of Emissions of Air Pollution from Nonroad Diesel Engines and Fuels (69 FR 38958, June 29, 2004).
Tables 8 and 9 are summaries of the 2002 baseline and 2018 estimated emissions inventories for Massachusetts. The 2018 estimated emissions include emissions growth as well as emission reductions due to ongoing emission control strategies and reasonable progress goals.
MANE–VU performed modeling for the regional haze LTS for the 11 Mid-Atlantic and Northeast States and the District of Columbia. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. MANE–VU used the following modeling system:
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•
•
•
•
CMAQ modeling of regional haze in the MANE–VU region for 2002 and 2018 was carried out on a grid of 12x12 kilometer (km) cells that covers the 11 MANE–VU States (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont) and the District of Columbia and States adjacent to them. This grid is nested within a larger national CMAQ modeling grid of 36x36 km grid cells that covers the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. Selection of a representative period of meteorology is crucial for evaluating baseline air quality conditions and projecting future changes in air quality due to changes in emissions of visibility-impairing pollutants. MANE–VU conducted an in-depth analysis which resulted in the selection of the entire year of 2002 (January 1–December 31) as the best period of meteorology available for conducting the CMAQ modeling. The MANE–VU States' modeling was developed consistent with EPA's
MANE–VU examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the regional haze assessment of the LTS and for use in the modeling assessment. The modeling assessment predicts future levels of emissions and visibility impairment used to support the LTS and to compare predicted, modeled visibility levels with those on the uniform rate of progress. In keeping with the objective of the CMAQ modeling platform, the air quality model performance was evaluated using graphical and statistical assessments based on measured ozone, fine particles, and acid deposition from various monitoring networks and databases for the 2002 base year. MANE–VU used a diverse set of statistical parameters from the EPA's Modeling Guidance to stress and examine the model and modeling inputs. Once MANE–VU determined the model performance to be acceptable, MANE–VU used the model to assess the 2018 RPGs using the current and future year air quality modeling predictions, and compared the RPGs to the uniform rate of progress.
In accordance with 40 CFR 51.308(d)(3), the Commonwealth of Massachusetts provided the appropriate supporting documentation for all required analyses used to determine the State's LTS. The technical analyses and modeling used to support the LTS are consistent with EPA's RHR, and interim and final EPA Modeling Guidance. EPA is proposing to find the MANE–VU technical modeling to support the LTS is acceptable because the modeling system was chosen and used according to EPA Modeling Guidance. EPA agrees with the MANE–VU model performance procedures and results, and that CMAQ, REMSAD, and CALPUFF are appropriate tools for the regional haze assessments for the Massachusetts LTS and regional haze SIP.
An important step toward identifying reasonable progress measures is to identify the key pollutants contributing to visibility impairment at each Class I area. To understand the relative benefit of further reducing emissions from different pollutants, MANE–VU developed emission sensitivity model runs using CMAQ to evaluate visibility and air quality impacts from various groups of emissions and pollutant scenarios in the Class I areas on the 20 percent worst visibility days.
Regarding which pollutants are most significantly impacting visibility in the MANE–VU region, MANE–VU's contribution assessment demonstrated that sulfate is the major contributor to PM
The emissions sensitivity analyses conducted by MANE–VU predict that reductions in SO
Since the Commonwealth of Massachusetts does not have a Class I area, it is not required to establish RPGs. However, as a MANE–VU member State, Massachusetts adopted the “Statement of MANE–VU Concerning a Request for a Course of Action by States Within MANE–VU Toward Assuring Reasonable Progress” on June 7, 2007. This document included four emission management strategies that will provide for reasonable progress towards achieving natural visibility at the MANE–VU Class I areas. These emission management strategies are collectively known as the MANE–VU “Ask,” and include: (a) Timely implementation of BART requirements; (b) a 90 percent reduction in SO
Massachusetts will be controlling its BART sources through the application of source-specific BART or its Alternative to BART. The source-specific BART determinations and the Alternative to BART are discussed in detail in Section III.B. Massachusetts has requested parallel processing of its February 17, 2012 proposal to make several of the emission reductions expected from the Alternative to BART federally enforceable.
Massachusetts is home to five sources with a total of 10 of the 167 EGU stacks which have been identified by MANE–VU as top contributors to visibility impairment in any of the MANE–VU Class I areas. These sources are Brayton Point (Units 1–3), Canal Station (Units 1–2), Mount Tom Station (Unit 1), Salem Harbor (Units 1, 3, and 4), and Somerset Power (Unit 8). Each of these facilities is subject to MassDEP's 310 CMR 7.29, which limits SO
Several of the Massachusetts EGUs already have installed SO
Table 10 shows that SO
MassDEP believes that there will be further emissions reductions at the targeted units as a result of EPA's recently issued Mercury and Air Toxics Standards (MATS) rule.
To be subject to MATS in a given year, an EGU must fire coal or oil for more than 10 percent of the average annual heat input during the 3 previous consecutive calendar years, or for more than 15 percent of the annual heat input during any one of the 3 previous calendar years. This provision provides an incentive to Canal Unit 2, which can burn oil or natural gas, to limit the amount of oil it burns so that it is not subject to MATS, which would result in future SO
Taking into account 310 CMR 7.29 SO
Massachusetts also notes that even the conservative projection of a 67% reduction in SO
The MANE–VU low sulfur fuel oil strategy includes: Phase I reduction of distillate oil to 0.05% sulfur by weight (500 parts per million (ppm)) by no later than 2014; Phase II reductions of #4 residual oil to 0.25% sulfur by weight by no later than 2018; #6 residual oil to 0.5% sulfur by weight by no later than 2018; and further reduction of the sulfur content of distillate oil to 15 ppm by 2018.
The expected reduction in SO
Massachusetts has proposed amendments to 310 CMR 7.05, “Fuels All Districts.” The proposed amendments limit the Statewide sulfur content of distillate oil to 500 parts per million (ppm) July 1, 2014 through June 30, 2018. Starting July 1, 2018, the sulfur content of distillate is limited to 15 ppm. The sulfur in fuel limit for No. 6 residual oil, starting July 1, 2018 is 0.5% by weight Statewide, except for the Berkshire Air Pollution Control District (APCD). The Berkshire APCD has a 1974 legislative exemption allowing sources in this district to burn up to 2.2% sulfur residual oil. Therefore, the proposed revisions do not require lower sulfur residual oil in the Berkshire APCD due to the existing law.
While MassDEP continues to evaluate other control measures to reduce SO
Massachusetts did not include emission reductions which result from the promulgation of the outdoor wood boilers rule in the visibility modeling to ensure reasonable progress. However, Massachusetts is including this program in its Regional Haze SIP as a SIP strengthening measure. In today's action, EPA is proposing to approve Massachusetts' 310 CMR 7.26(50)–(54), “Outdoor Hydronic Heaters,” and incorporating this regulation into the SIP.
EPA is also proposing to approve Massachusetts' Regional Haze SIP for the first implementation period. This includes proposed approval of Massachusetts' LTS which will allow other States to meet their respective RPGs. Massachusetts' LTS includes its Alternative to BART, expected enforceable SO
In 40 CFR 51.308(d)(3)(v), States are required to consider the following factors in developing the long term strategy:
a. Emission reductions due to ongoing air pollution control programs, including measures to address reasonably attributable visibility impairment;
b. Measures to mitigate the impacts of construction activities;
c. Emission limitations and schedules for compliance to achieve the reasonable progress goal;
d. Source retirement and replacement schedules;
e. Smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the State for these purposes;
f. Enforceability of emissions limitations and control measures; and
g. The anticipated net effect on visibility due to projected changes in point area, and mobile source emissions over the period addressed by the long term strategy.
Since Massachusetts does not contain any Class I areas, the State is not required to address RAVI, nor has any Massachusetts source been identified as subject to RAVI. A list of Massachusetts' ongoing air pollution control programs is included in Section III.C.1.
The Regional Haze Rule requires Massachusetts to consider measures to mitigate the impacts of construction activities on regional haze. MANE–VU's consideration of control measures for construction activities is documented in
The construction industry is already subject to requirements for controlling pollutants that contribute to visibility impairment. For example, federal regulations require the reduction of SO
MANE–VU's Contribution Report found that, from a regional haze perspective, crustal material generally does not play a major role. On the 20 percent best-visibility days during the 2000–2004 baseline period, crustal material accounted for 6 to 11 percent of the particle-related light extinction at the MANE–VU Class I Areas. On the 20 percent worst-visibility days, however, the contribution was reduced to 2 to 3 percent. Furthermore, the crustal fraction is largely made up of pollutants of natural origin (e.g., soil or sea salt) that are not targeted under the Regional Haze Rule. Nevertheless, the crustal fraction at any given location can be heavily influenced by the proximity of construction activities; and construction activities occurring in the immediate vicinity of MANE–VU Class I area could have a noticeable effect on visibility.
For this regional haze SIP, Massachusetts concluded that its current regulations are currently sufficient to mitigate the impacts of construction activities. Any future deliberations on potential control measures for construction activities and the possible implementation will be documented in the first regional haze SIP progress report in 2014. EPA proposes to find that Massachusetts has adequately addressed measures to mitigate the impacts of construction activities.
In addition to the existing CAA control requirements discussed in section III.C.1, Massachusetts has adopted a low sulfur fuel oil strategy consistent with the MANE–VU “Ask” as discussed in Section III.C.4. EPA proposes to find that Massachusetts has adequately addressed emissions limitations and schedules for compliance.
Pursuant to 40 CFR 51.308(d)(3)(v)(D) of the Regional Haze Rule, Massachusetts is required to consider source retirement and replacement schedules in developing the long term strategy. Source retirement and replacement were considered in developing the 2018 emissions. However, no additional sources beyond those already discussed have been identified by Massachusetts. EPA proposes to find that Massachusetts has adequately addressed source retirement and replacement schedules.
The Regional Haze Rule requires States to consider smoke management techniques related to agricultural and forestry management in developing the long-term strategy. MANE–VU's analysis of smoke management in the context of regional haze is documented in
Massachusetts does not have a formal smoke management program (SMP). SMPs are required only when smoke impacts from fires managed for resources benefits contribute significantly to regional haze. The emissions inventory presented in the Smoke TSD indicates that agricultural, managed, prescribed, and open burning emissions are very minor; the inventory estimates that, in Massachusetts, those emissions from those source categories totaled 414.2 tons of PM
Source apportionment results show that wood smoke is a moderate contributor to visibility impairment at some Class I areas in the MANE–VU region; however, smoke is not a large contributor to haze in MANE–VU Class I areas on either the 20% best or 20% worst visibility days. Moreover, most of wood smoke is attributable to residential wood combustion. Therefore, it is unlikely that fires for agricultural or forestry management cause large
Massachusetts has asked, and we are proposing to process approval of 310 CMR 7.29, 310 CMR 7.05, and 310 CMR 7.26(50) in parallel with the approval of Massachusetts' Regional Haze SIP. Massachusetts indicated that they plan to have the final supplemental SIP revision by July 2012, prior to the finalization of this action. EPA will review the final SIP supplement and determine whether it differs significantly from the February 17, 2012 proposal. At the same time we take final action on Massachusetts' Regional Haze SIP, we will then take final action on 310 CMR 7.29, 310 CMR 7.05, and 310 CMR 7.26(50)–(54) as well as on several ECPs discussed in the BART section. Upon EPA final action, these requirements and associated emission limitations included as part of the Massachusetts Regional Haze SIP, will become federally enforceable. EPA is proposing to find that Massachusetts has adequately addressed the enforceability of emission limitations and control measures.
MANE–VU used the best and final emission inventory to model progress expected toward the goal of natural visibility conditions for the first regional haze planning period. All of the MANE–VU Class I areas are expected to achieve greater progress toward the natural visibility goal than the uniform rate of progress, or the progress expected by extrapolating a trend line from current visibility conditions to natural visibility conditions.
In summary, EPA is proposing to find that Massachusetts has adequately addressed the LTS regional haze requirements.
On May 10, 2006, the MANE–VU State Air Directors adopted the Inter-RPO State/Tribal and FLM Consultation Framework that documented the consultation process within the context of regional phase planning, and was intended to create greater certainty and understanding among RPOs. MANE–VU States held ten consultation meetings and/or conference calls from March 1, 2007 through March 21, 2008. In addition to MANE–VU members attending these meetings and conference calls, participants from the Visibility Improvement State and Tribal Association of the Southeast (VISTAS) RPO, Midwest RPO, and the relevant Federal Land Managers were also in attendance. In addition to the conference calls and meeting, the FLMs were given the opportunity to review and comment on each of the technical documents developed by MANE–VU.
On November 21, 2008 and July 31, 2009, Massachusetts submitted a draft Regional Haze SIP to the relevant FLMs for review and comment pursuant to 40 CFR 51.308(i)(2). The FLMs provided comments on the draft Regional Haze SIP in accordance with 40 CFR 51.308(i)(3). The comments received from the FLMs were addressed and incorporated in Massachusetts' SIP revision. Most of the comments were requests for additional detail as to various aspects of the SIP. These comments and Massachusetts' response to comments can be found in the docket for this proposed rulemaking.
On January 11, 2011, Massachusetts proposed its Regional Haze SIP for public hearing. Comments were received from U.S. EPA, the National Park Service, the U.S. Department of Agriculture, Conservation Law Foundation, Wheelabrator, Massachusetts Petroleum Council, and Massachusetts Oil Heat Council.
EPA is proposing to find that Massachusetts has addressed the requirements for consultation with the Federal Land Managers.
Consistent with the requirements of 40 CFR 51.308(g), Massachusetts has committed to submitting a report on reasonable progress (in the form of a SIP revision) to the EPA every five years following the initial submittal of its regional haze SIP. The reasonable progress report will evaluate the progress made towards the RPGs for the MANE–VU Class I areas, located in Maine, New Hampshire, Vermont, and New Jersey.
Pursuant to 40 CFR 51.308(f), Massachusetts is required to submit periodic revisions to its Regional Haze SIP by July 31, 2018, and every ten years thereafter. Massachusetts acknowledges and agrees to comply with this schedule.
Pursuant to 40 CFR 51.308(d)(4)(v), Massachusetts will also make periodic updates to the State's emissions inventory. Massachusetts proposes to complete these updates to coincide with the progress reports. Actual emissions will be compared to projected modeled emissions in the progress reports.
Lastly, pursuant to 40 CFR 51.308(h), Massachusetts will submit a determination of adequacy of its regional haze SIP revision whenever a progress report is submitted. Massachusetts' regional haze SIP states that, depending on the findings of its five-year review, Massachusetts will take one or more of the following actions at that time, whichever actions are appropriate or necessary:
• If Massachusetts determines that the existing State Implementation Plan requires no further substantive revision in order to achieve established goals for visibility improvement and emissions reductions, Massachusetts will provide to the EPA Administrator a negative declaration that further revision of the existing plan is not needed.
• If Massachusetts determines that its implementation plan is or may be inadequate to ensure reasonable progress as a result of emissions from sources in one or more other State(s) which participated in the regional planning process, Massachusetts will provide notification to the EPA Administrator and to those other State(s). Massachusetts will also collaborate with the other State(s) through the regional planning process
• If Massachusetts determines that its implementation plan is or may be inadequate to ensure reasonable progress as a result of emissions from sources in another country, Massachusetts will provide notification, along with available information, to the EPA Administrator.
• If Massachusetts determines that the implementation plan is or may be inadequate to ensure reasonable progress as a result of emissions from sources within the State, Massachusetts will revise its implementation plan to address the plan's deficiencies within one year from this determination.
EPA is proposing approval of Massachusetts' December 30, 2011 SIP revision and February 17, 2012 proposed regional haze SIP revision supplement, as meeting the applicable requirements of the Regional Haze Rule found in 40 CFR 51.308. EPA is proposing to approve 310 CMR 7.29 “Emission Standards for Power Plants,” 310 CMR 7.26(50)–(54) “Outdoor Hydronic Heaters,” Amended Emission Control Plan for Mt. Tom Station dated May 15, 2009, Facility Shutdown of Somerset Power, LLC dated June 22, 2011, Modified Emission Control Plan for General Electric Aviation—Lynn dated March 24, 2011, and Modified Emission Control Plan for Wheelabrator Saugus, Inc. dated March 14, 2012. Pursuant to MassDEP's May 2, 2012 request for parallel processing, EPA is proposing approval of Massachusetts' proposed 310 CMR 7.00 “Definitions,” 310 CMR 7.05 “Fuels All Districts,” proposed Amended Emission Control Plan Approval for Salem Harbor Station dated February 17, 2012, and proposed Amended Emission Control Plan Approval for Brayton Point Station dated February 16, 2012. Under this procedure, EPA prepared this action before the State's final adoption of these regulations and ECPs. Massachusetts has already held a public hearing on the proposed regulations and received public comment. Massachusetts may revise the regulations and ECPs in response to comments. After Massachusetts submits its final adopted supplemental SIP revision, EPA will review this submittal to determine whether it is significantly different from the proposal. EPA will determine whether it is appropriate to approve the final rules and ECPs with a description of any changes since the proposal, re-propose action based on the final adopted regulations, or take other action as appropriate.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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.
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.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve Wyoming State Implementation Plan (SIP) revisions submitted on January 12, 2011 and April 19, 2012 that address regional haze. These SIP revisions were submitted to address the requirements of the Clean Air Act (CAA or Act) and our rules that require states to prevent any future and remedy any existing man-made impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. EPA is taking this action pursuant to section 110 of the CAA.
Comments must be received on or before July 23, 2012.
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2011–0400, by one of the following methods:
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Laurel Dygowski, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P–AR, 1595 Wynkoop, Denver, Colorado 80202–1129, (303) 312–6144,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
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a. Identify the rulemaking by docket number and other identifying information (subject heading,
b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
In this action, EPA is proposing to approve Wyoming SIP revisions submitted on January 12, 2011 and April 19, 2012 that address the regional haze rule (RHR) for the mandatory Class I areas under 40 CFR 51.309. EPA is proposing that the January 12, 2011 and April 19, 2012 SIPs meet the requirements of 40 CFR 51.309, with the exception of 40 CFR 51.309(d)(4)(vii), and 40 CFR 51.309(g), as explained below.
As part of the January 12, 2011 and April 19, 2012 SIPs, the State submitted revisions to the Wyoming Air Quality Standards and Regulations (WAQSR). The State submitted WAQSR Chapter 14, Sections 2 and 3—
The State's submitted another SIP revision dated January 12, 2011 that addresses the requirements under 40 CFR 51.309(d)(4)(vii) and 40 CFR 51.309(g) pertaining to best available retrofit technology (BART) for particulate matter (PM) and nitrogen oxides (NO
As explained in further detail below, 40 CFR 51.309 (section 309) allows western states an optional way to fulfill the RHR requirements as opposed to adopting the requirements under 40 CFR 51.308. Three states have elected to submit a SIP under 40 CFR 51.309. Those states are Wyoming, Utah, and New Mexico.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999. 64 FR 35714 (July 1, 1999, codified at 40 CFR part 51, subpart P). The RHR revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300–309. Some of the main elements of the regional haze requirements under 40 CFR 51.309 are summarized in sections III and IV of this preamble. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. 40 CFR 51.308(b) and 40 CFR 51.309(c) require states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.
Few states submitted a regional haze SIP prior to the December 17, 2007 deadline, and on January 15, 2009, EPA found that 37 states, including Wyoming and the District of Columbia, and the Virgin Islands, had failed to submit SIPs addressing the regional haze requirements. 74 FR 2392. Once EPA has found that a state has failed to make a required submission, EPA is required to promulgate a FIP within two years unless the state submits a SIP and the Agency approves it within the two year period. CAA § 110(c)(1).
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of PM and other pollutants leading to regional haze.
The Western Regional Air Partnership (WRAP) RPO is a collaborative effort of state governments, tribal governments, and various federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility and other air quality issues in the western United States. WRAP member state governments include: Alaska, Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and
EPA's RHR provides two paths to address regional haze. One is 40 CFR 51.308, requiring states to perform individual point source BART determinations and evaluate the need for other control strategies. These strategies must be shown to make “reasonable progress” in improving visibility in Class I areas inside the state and in neighboring jurisdictions. The other method for addressing regional haze is through 40 CFR 51.309, and is an option for nine states termed the “Transport Region States” which include: Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, and Wyoming, and the 211 tribes located within those states. By meeting the requirements under 40 CFR 51.309, states are making reasonable progress toward the national goal of achieving natural visibility conditions for the 16 Class I areas on the Colorado Plateau.
Section 309 requires participating states to adopt regional haze strategies that are based on recommendations from the Grand Canyon Visibility Transport Commission (GCVTC) for protecting the 16 Class I areas on the Colorado Plateau.
EPA determined that the GCVTC strategies would provide for reasonable progress in mitigating regional haze if supplemented by an annex containing quantitative emission reduction milestones and provisions for a trading program or other alternative measure (64 FR 35749 and 35756). Thus, the 1999 RHR required that western states submit an annex to the GCVTC report with quantitative milestones and detailed guidelines for an alternative program in order to establish the GCVTC recommendations as an alternative approach to fulfilling the section 308 requirements for compliance with the RHR. In September 2000, the WRAP, which is the successor organization to the GCVTC, submitted an annex to EPA. The annex contained SO
Five western states submitted implementation plans under section 309 in 2003. EPA was challenged by the Center for Energy and Economic Development (CEED) on the validity of the annex provisions. In
The following is a summary and basic explanation of the regulations covered under section 51.309 of the RHR. See 40 CFR 51.309 for a complete listing of the regulations under which this SIP was evaluated.
For each of the 16 Class I areas located on the Colorado Plateau, the SIP must include a projection of the improvement in visibility expressed in deciviews. 40 CFR 51.309(d)(2). The RHR establishes the deciview as the principal metric or unit for expressing visibility.
Pursuant to 40 CFR 51.309(d)(3), states must identify CACs. CACs are geographic areas located within transport region states that contribute to the best visibility days (least impaired) in the 16 Class I areas on the Colorado Plateau. The CAC as described in the 1996 GCVTC report covers nearly all of Nevada, large portions of Oregon, Idaho, and Utah, and encompasses several Indian nations. In order to meet the RHR requirements for CACs, states must adopt a comprehensive emissions tracking program for all visibility impairing pollutants within the CAC. Based on the emissions tracking, states must identify overall emissions growth or specific areas of emissions growth in and outside of the CAC that could be significant enough to result in visibility impairment at one or more of the 16 Class I areas. If there is visibility
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address their visibility impacts. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate BART as determined by the state. Under the RHR, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area.
Rather than requiring source-specific BART controls, states have the flexibility under section 309 to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress than would be achieved by the application of BART pursuant to 40 CFR 51.309(e)(2). Under 40 CFR 51.309, states can satisfy the section 308 SO
Pursuant to 40 CFR 51.309(d)(4)(ii)-(iv), states must include requirements in the SIP that allow states to determine whether the milestone has been exceeded. These requirements include documentation of the baseline emission calculation, monitoring, recordkeeping, and reporting (MRR) of SO
The WRAP, in conjunction with EPA, developed a model for a backstop trading program. In order to ensure consistency between states, states opting to participate in the 309 program need to adopt rules that are substantively equivalent to the model rules for the backstop trading program to meet the requirements of 40 CFR 51.309(d)(4). The trading program must also be implemented no later than 15 months after the end of the first year that the milestone is exceeded, require that sources hold allowances to cover their emissions, and provide a framework, including financial penalties, to ensure that the 2018 milestone is met.
Pursuant to 40 CFR 51.309(d)(4)(vii), a section 309 SIP must contain any necessary long term strategies and BART requirements for PM and NO
On July 6, 2005, EPA published the
The process of establishing BART emission limitations can be logically broken down into three steps: first, states identify those sources which meet the definition of “BART-eligible source” set forth in 40 CFR 51.301
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the state should not be higher than 0.5 deciview. 40 CFR part 51, appendix Y, section III.A.1.
In their SIPs, states must identify the sources that are subject-to-BART and document their BART control determination analyses for such sources. In making their BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors
A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject-to-BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the regional haze SIP. CAA section 169(g)(4) and 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to MRR for the BART controls on the source.
Under 40 CFR 51.309(d)(5), states must provide inventories of on-road and non-road mobile source emissions of VOCs, NO
The SIP must also contain any long-term strategies necessary to reduce emissions of SO
Pursuant to 40 CFR 51.309(d)(6), SIPs must contain requirements for programs related to fire. The SIP must show that the state's smoke management program, and all federal or private programs for prescribed fire in the state, have a mechanism in place for evaluating and addressing the degree of visibility impairment from smoke in their planning and application of burning. The state must also ensure that its prescribed fire smoke management programs have at least the following seven elements: (1) Actions to minimize emissions; (2) evaluation of smoke dispersion; (3) alternatives to fire; (4) public notification; (5) air quality monitoring; (6) surveillance and enforcement; and (7) program evaluation. The state must be able to track statewide emissions of VOC, NO
Other requirements states must meet in their 309 plan related to fire include the adoption of a statewide process for gathering post-burn activity information to support emissions inventory and tracking systems. States must identify existing administrative barriers to the use of non-burning alternatives and adopt a process for continuing to identify and remove administrative barriers where feasible. The SIP must include an enhanced smoke management program that considers visibility effects in addition to health objectives and is based on the criteria of efficiency, economics, law, emission reduction opportunities, land management objectives, and reduction of visibility impairment. Finally, a state must establish annual emission goals to minimize emission increases from fire.
Under 40 CFR 51.309(d)(7), states must submit a SIP that assesses the impact of dust emissions on regional haze in the 16 Class I areas on the Colorado Plateau and to include a projection of visibility conditions through 2018 for the least and most impaired days. If dust emissions are determined to be a significant contributor to visibility impairment, the state must include emissions management strategies in the SIP to address their impact.
The requirements under the RHR for pollution prevention only require the state to provide an assessment of the energy programs as outlined in 40 CFR 51.309(d)(8) and does not require a state to adopt any specific energy-related strategies or regulations for regional haze. In order to meet the requirements related to pollution prevention, the state's plan must include an initial summary of all pollution prevention programs currently in place, an inventory of all renewable energy generation capacity and production in use or planned as of the year 2002, the total energy generation capacity and production for the state, and the percent of the total that is renewable energy.
The state's plan must include a discussion of programs that provide incentives for efforts that go beyond compliance and/or achieve early compliance with air-pollution related requirements and programs to preserve and expand energy conservation efforts. The state must identify specific areas where renewable energy has the potential to supply power where it is now lacking and where renewable energy is most cost-effective. The state must include projections of the short and long-term emissions reductions, visibility improvements, cost savings, and secondary benefits associated with renewable energy goals, energy efficiency, and pollution prevention activities. The state must also provide its anticipated contribution toward the GCVTC renewable energy goals for 2005 and 2015. The GCVTC goals are that renewable energy will comprise 10 percent of the regional power needs by 2005 and 20 percent by 2015.
Section 309 requires states to determine if any of the other recommendations not codified by EPA as part of 40 CFR 51.309, should be implemented in their SIP. 40 CFR 51.309(d)(9). States are not required to adopt any additional control measures unless the state determines they are appropriate and can be practicably included as enforceable measures to remedy regional haze in the 16 Class I areas. Any measures adopted by a state would need to be enforceable. States must also submit a report to EPA and the public in 2013 and 2018 showing there has been an evaluation of the additional recommendations and the progress toward developing and implementing any such recommendations.
Under 40 CFR 51.309(d)(10), states must submit progress reports in the form of SIP revisions in 2013 and 2018. The SIP revisions must comply with the procedural requirements of 40 CFR
At the same time that the state submits its progress report to EPA, it must also take an action based on the outcome of the assessment in the report. If the assessment shows that the SIP is adequate and requires no substantive revision, the state must submit to EPA a “negative declaration” statement saying that no further SIP revisions are necessary at this time. If the assessment shows that the SIP is or may be inadequate due to emissions from outside the state, the state must notify EPA and other regional planning states and work with them to develop additional control strategies. If the assessment shows that the SIP is or may be inadequate due to emissions from another country, the state must include appropriate notification to EPA in its SIP revision. In the event the assessment shows that the SIP is or may be inadequate due to emissions from within the state, the state shall develop additional strategies to address the deficiencies and revise the SIP within one year from the due date of the progress report.
In complying with the requirements of 40 CFR 51.309(d)(11), states may include emission reductions strategies that are based on coordinated implementation with other states. The SIP must include documentation of the technical and policy basis for the individual state apportionment (or the procedures for apportionment throughout the trans-boundary region), the contribution addressed by the state's plan, how it coordinates with other state plans, and compliance with any other appropriate implementation plan approvability criteria. States may rely on the relevant technical, policy, and other analyses developed by a regional entity, such as the WRAP in providing such documentation.
States opting to submit an alternative program, such as the backstop trading program under section 309, must also meet requirements under 40 CFR 51.308(e)(2) and (e)(3). These requirements for alternative programs relate to the “better-than-BART” test and fundamental elements of any alternative program that establishes a cap on emissions.
In order to demonstrate that the alternative program achieves greater reasonable progress than source-specific BART, states must provide a demonstration in their SIP that meets the requirements in 40 CFR 51.308(e)(2)(i)–(v). States submitting section 309 SIPs or other alternative programs are required to list all BART-eligible sources and categories covered by the alternative program. States are then required to determine which BART-eligible sources are “subject-to-BART.” The SIP must provide an analysis of the best system of continuous emission control technology available and the associated reductions for each source subject-to-BART covered by the alternative program, or what is termed a “BART benchmark.” Where the alternative program, such as the 309 backstop trading program, has been designed to meet requirements other than BART, states may use simplifying assumptions in establishing a BART benchmark. These assumptions can provide the baseline to show that the alternative program achieves greater reasonable progress than BART (71 FR 60619). Under this approach, states should use the presumptive limits for EGUs in the BART Guidelines to establish the BART benchmark used in the comparison, unless the state determines that such presumptions are not appropriate for particular EGUs (70 FR 60619).
The SIP must provide an analysis of the projected emissions reductions achievable through the trading program or other alternative measure and a determination that the trading program or other alternative measure achieves greater reasonable progress than would be achieved through the installation and operation of BART pursuant to 40 CFR 51.308(e)(1). 40 CFR 308(e)(2)(i)(D)–(E). Under 40 CFR 51.308(e)(2)(iii)–(iv), all emission reductions for the alternative program must take place by 2018, and all the emission reductions resulting from the alternative program must be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP. Pursuant to 40 CFR 51.309(e)(2)(v), states have the option of including a provision that the emissions trading program or other alternative measure include a geographic enhancement to the program to address the requirement under 40 CFR 51.302(c) related to BART for reasonably attributable visibility impairment from the pollutants covered under the emissions trading program or other alternative measure.
States must also address the distribution of emissions under the BART alternative as part of the better-than-BART demonstration. 40 CFR 51.308(e)(3). If a state can show that with the alternative program the distribution of emissions is not substantially different from source-specific BART, and the alternative program results in greater emission reductions than source-specific BART, then the alternative measure may be deemed to achieve greater reasonable progress. If the distribution of emissions is significantly different, the state must conduct dispersion modeling to determine differences in visibility between source-specific BART and the alternative program for each impacted Class I area for the 20% worst and best days. The modeling must show that visibility does not decline at any Class I area and that visibility overall is greater than what would be achieved with source-specific BART.
Under 40 CFR 51.308(e)(2)(vi)(A)–(L), EPA established fundamental requirements for trading or alternative programs that have an emissions cap and require sources to hold allowances that they can sell, buy, or trade, as in the case for the 309 backstop trading program. These requirements are summarized below.
The alternative program must have applicability provisions that define the sources subject to the program. In the case of a program covering sources in multiple states, the states must demonstrate that the applicability provisions in each state cover essentially the same size facilities and, if source categories are specified, cover the same source categories.
Allowances are a key feature of a cap and trade program. An allowance is a limited authorization for a source to emit a specified amount of a pollutant,
MRR of a source's emissions are integral parts of any cap and trade program. Consistent and accurate measurement of emissions ensures that each allowance actually represents its specified tonnage value of emissions and that one ton of reported emissions from one source is equivalent to one ton of reported emissions at another source. The MRR provisions must require that boilers, combustion turbines, and cement kilns in the alternative program that are allowed to sell or transfer allowances comply with the requirements of 40 CFR part 75. The MRR provisions must require that other sources in the program allowed to sell or transfer allowances provide emissions information with the same precision, reliability, accessibility, and timeliness as information required by 40 CFR part 75.
An accurate and efficient tracking system is critical to the functioning of an emissions trading market. The tracking system must also be transparent, allowing all interested parties access to the information contained in the accounting system. Thus, alternative programs must have requirements for a tracking system that is publicly available in a secure, centralized database to track in a consistent manner all allowances and emissions in the program.
Each source owner or operator covered by the alternative program must designate an individual account representative who is authorized to represent the owner or operator in all matters pertaining to the trading program and who is responsible for the data reported for that source. The account representative will be responsible for, among other things, permitting, compliance, and allowance related actions.
SIPs must contain provisions detailing a uniform process for transferring allowances among all sources covered by the program and other possible participants. The provisions must provide procedures for sources to request an allowance transfer, for the request and transfer to be recorded in the allowance tracking system, for notification to the source that the transfer has occurred, and for notification to the public of each transfer and request.
Cap and trade programs must include compliance provisions that prohibit a source from emitting more emissions than the total tonnage value of allowances the source holds for that year. A cap and trade program must also contain the specific methods and procedures for determining compliance on an annual basis.
In order to provide sources with a strong incentive to comply with the requirement to hold sufficient allowances for their emissions on an annual basis and to establish an immediate minimum economic consequence for non-compliance, the program must include a system for mandatory allowance deductions. SIPs must contain a provision that if a source has excess emissions in a given year, allowances allocated for the subsequent year will be deducted from the source's account in an amount at least equal to three times the excess emissions.
The banking of allowances occurs when allowances that have not been used for compliance are set aside for use in a later compliance period. Alternative programs can include provisions for banked allowances, so long as the SIP clearly identifies how unused allowances may be used in future years and whether there are any restrictions on the use of any such banked allowances.
The alternative program must include provisions for periodic assessment of the program. Such periodic assessments are a way to retrospectively assess the performance of the trading program in meeting the goals of the regional haze program and determining whether the trading program needs any adjustments or changes. At a minimum, the program evaluation must be conducted every five years to coincide with the periodic report describing progress towards the reasonable progress goals required under 40 CFR 51.308(g) and must be submitted to EPA.
The following summarizes how Wyoming's January 12, 2011 submittal meets the requirements of 40 CFR 51.309, with the exception of 40 CFR 51.309(d)(4)(iii), 40 CFR 51.309(d)(4)(vii), and 40 CFR 51.309(g), which as discussed above, EPA plans to propose action on in a future notice.
Pursuant to 40 CFR 51.309(d)(2), Wyoming provided a comparison of the monitored 2000–2004 baseline visibility conditions in deciviews for the 20 percent best and 20 percent worst days to the projected visibility improvement for 2018 for the Class I areas on the Colorado Plateau (see section K.2 of the SIP). Table 1 shows the State's baseline monitoring data and projected visibility improvement for 2018 from the WRAP photochemical modeling (for details on the WRAP emission inventories and photochemical modeling refer to the WRAP Technical Support Document (TSD)
Pursuant to 40 CFR 51.309(d)(3), Wyoming is using a comprehensive emissions tracking system established by WRAP to track emissions within portions of Oregon, Idaho, Nevada and Utah that have been identified as part of the CAC (see section B.1(a) of the SIP). The emission tracking is to ensure that visibility does not degrade on the least-impaired days in any of the 16 Class I areas of the Colorado Plateau. For a complete description of the emission tracking system and the process by which the annual emission trends will be summarized in order to identify any significant emissions growth that could lead to visibility degradation in the 16 Class I areas, see
Pursuant to 40 CFR 51.309(d)(3)(i), the State has provided the geographic boundaries of the CAC (a map of the CAC can be found in Section B of the SIP). The WRAP identified the CAC using studies conducted by the Meteorological Subcommittee of the GCVTC and then updated the CAC based on an assessment described in the
Pursuant to 40 CFR 51.309(d)(3)(ii)–(iii), the State has determined, based on the
The State, in coordination with other transport region states and tribes, will review the annual summary of emission trends within the CAC and determine whether any significant emissions growth has occurred. If the State identifies significant emissions growth, the State, in coordination with other transport region states and tribes, will conduct an analysis of the effects of this emissions growth. Pursuant to 40 CFR 51.309(d)(3)(iv), if this analysis finds that the emissions growth is causing visibility impairment in the 16 Class I areas, the State will evaluate the need for additional emission reduction measures and identify an implementation schedule for such measures. The State will report on the need for additional reduction measures to EPA in accordance with the periodic progress reports required under 40 CFR 51.309(d)(10)(i) (see section B.1(d) and (e) of the SIP).
Pursuant to 40 CFR 51.309(d)(3)(v), the State has concluded that no other CACs can be identified at this time. The State's conclusion is based on the
We are proposing to determine that the State's SIP meets the requirements of 40 CFR 51.309(d)(3).
As required by 40 CFR 51.309(d)(4)(i), the State has adopted SO
SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.309(d)4)(i).
Pursuant to 40 CFR 51.309(d)(4)(ii), the SIP includes documentation of the specific methodology used to calculate SO
Pursuant to 40 CFR 51.309(d)(4)(ii), the SIP requires the State to document any change to the specific methodology used to calculate emissions at any emitting unit for any year after the base year. Until the program has been triggered and source compliance is required, the State will submit an annual emissions report to EPA that documents prior year emissions for Wyoming sources covered by the 309 program to all participating states by September 30 of each year. The State will adjust actual emission inventories for sources that change the method of monitoring or calculating their emissions to be comparable to the emission monitoring or calculation method used to calculate the 2006 base year inventory (see section C.A3 of the SIP).
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.309(d)(4)(ii).
In order to meet the emission reporting requirements of 40 CFR 51.309(d)(4)(iii), the SIP includes provisions requiring the monitoring, recordkeeping, and reporting of actual stationary source SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.309(d)(4)(iii), and we are proposing to approve WAQSR Chapter 14, Section 3.
Until the backstop trading program has been triggered and source compliance is required, the State shall submit an annual emissions report for Wyoming sources to all participating states by September 30th of each year. The report shall document actual SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.309(d)(4)(iv).
Per 40 CFR 51.309(d)(4)(v), the SIP provides that if the 309 backstop trading program is triggered, the regional emissions report will contain a common trigger date. In the absence of a common trigger date, the default date will be March 31st of the applicable year, but no later than 15 months after the end of the milestone year where the milestone was exceeded (see section C.3.10 of the SIP). The State's SIP requires that sources comply, as soon as practicable, with the requirement to hold allowances covering their emissions. Because the backstop trading program does not allow allocations to exceed the milestone, the program is sufficient to achieve the milestones adopted pursuant to 40 CFR 51.309(d)(4)(i) as discussed above. The backstop trading program is also consistent with the
We are proposing to determine the State's SIP meets the requirements of 40 CFR 309(d)(4)(v).
Pursuant to 40 CFR 51.309(d)(vi)(A), the SIP has provisions to ensure that, until a revised implementation plan is submitted in accordance with 40 CFR 51.308(f) and approved by EPA, emissions from covered stationary sources in any year beginning in 2018 do not exceed the 2018 milestone. In order to meet this requirement, the State has included special provisions for what will be required as part of their 2013 SIP revision required under 40 CFR 51.309(d)(10). The State's SIP provides that the 2013 SIP revision required by 40 CFR 51.309(d)(10) will contain either the provisions of a program designed to achieve reasonable progress for stationary sources of SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.309(d)(4)(vi)(A).
Pursuant to 40 CFR 51.309(d)(vi)(B), the SIP includes special penalty provisions to ensure that the 2018 milestone is met. If the backstop trading program is triggered and it will not start until after the year 2018, a special penalty shall be assessed to sources that exceed the 2018 milestone. Wyoming shall seek at least the minimum financial penalty of $5,000 per ton of SO
Any source that does not resolve its excess emissions violation in accordance with the streamlined settlement approach will be subject to civil enforcement action, in which the State shall seek a financial penalty for the excess emissions based on the State's statutory maximum civil penalties. The special penalty provisions for 2018 will apply for each year after 2018 until the State determines that the 2018 milestone has been met. The State will evaluate the amount of the minimum monetary penalty during each five-year SIP review and the penalty will be adjusted to ensure that penalties per ton substantially exceed the expected cost of allowances, and are thus stringent penalties (see Chapter 14, Section 2(l) and section A.5 of the SIP).
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.309(d)(4)(vi)(B).
As discussed in Section IV.A of this preamble, if a state adopts an alternative program designed to replace source-specific BART controls, the state must be able to demonstrate that the alternative program achieves greater reasonable progress than would be achieved by BART. Wyoming has included a demonstration of how the 309 program achieves greater reasonable progress than BART as discussed in the document titled Demonstration that the SO
Pursuant to 40 CFR 51.308(e)(2)(i)(A), the State's better-than-BART demonstration lists the BART-eligible sources covered by the program (see Table 3 below). BART eligible sources are identified as those sources that fall within one of the 26 specific source categories, were built between 1962 and 1977 and have potential emissions of 250 tons per year of any visibility impairing air pollutant.
We are proposing that this satisfies the requirements of 40 CFR 51.308(e)(2)(i)(A).
Pursuant to 40 CFR 51.308(e)(2)(i)(B), the State has determined which sources are subject-to-BART. Each of the section 309 states provided source modeling that determined which of the BART-eligible sources within their states to determine which sources cause or contribute to visibility impairment and are thus subject-to-BART. The State of New Mexico and Utah relied on modeling by the WRAP to identify sources subject to BART. Based on the list of identified sources, the WRAP performed the initial BART modeling for the State of New Mexico and Utah. The procedures used are outlined in the WRAP Regional Modeling Center (RMC) BART Modeling Protocol.
The states established a contribution threshold of 0.5 deciviews for determining if a single source causes or contributes to visibility impairment. If the modeling shows that a source has a 0.5 deciview impact at any Class I area, that source causes or contributes to visibility impairment and is subject-to-BART. Table 3 shows the BART-eligible sources covered by the 309 backstop program and whether they are subject-to-BART.
We are proposing to determine that the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(i)(B).
As required by 40 CFR 51.308(e)(2)(i)(C), the State determined what BART would be for each subject-to-BART source covered by the 309 backstop trading program. In the State's better-than-BART demonstration, all subject-to-BART EGUs were assumed to be operating at the presumptive SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(i)(C).
As required by 40 CFR 51.308(e)(2)(i)(D), the State has provided the expected emission reductions that would result from the 309 backstop trading program. The better-than-BART demonstration projects that 2018 baseline emissions would be 190,656 tpy of SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(i)(D).
The State's better-than-BART demonstration provides numerous reasons why the SO
The program also provides for a cap on new source growth. Future impairment is prevented by capping emissions growth from sources covered by the program and also by including entirely new sources in the region under the cap. BART applied on a source-specific basis would have no impact on future growth. The backstop trading program also provides a mass-based cap that has inherent advantages over applying BART to each individual source. The baseline emission projections and assumed reductions due to the assumption of BART-level emission rates on all sources subject-to-BART are all based on actual emissions, using 2006 as the baseline. If the BART process were applied on a source-specific basis to individual sources, emission limitations would typically be established as an emission rate (lbs/hr or lbs/MMBtu) that would account for variations in the sulfur content of fuel and alternative operating scenarios, or allowable emissions. A mass-based cap that is based on actual emissions is more stringent because it does not allow a source to consistently use this difference between current actual and allowable emissions.
We are proposing to determine the State's 309 backstop trading program achieves greater reasonable progress than would be achieved through the
The first planning period ends in 2018. As discussed above, the reductions from the 309 program will occur by 2018. We are therefore proposing to determine the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(iii).
The detailed description of the backstop trading program are provided in Section C—Stationary Sources of the State's SIP and WAQSR Chapter 14 Section 2. The details of the backstop trading program are discussed in section V.E of this notice. We are proposing to determine that the State's SIP meets the detailed description requirement in 40 CFR 51.308(e)(2)(iii).
We propose to approve the determination in the State's 309 SIP submittal that all emission reductions resulting from the emissions trading program are surplus as of the baseline date of the SIP, as required by 40 CFR 51.308(e)(2)(iv).
Pursuant to 40 CFR 51.308(e)(3), the State used modeling conducted by the WRAP to compare the visibility improvement expected from source-by-source BART to the backstop trading program for the Class I areas on the Colorado Plateau. A summary of the modeling results can be found in Section K of the State's SIP, which refers to data from modeling included in Tables 2 and 3 of Attachment C to the Annex.
The following analysis shows that the State's SIP is consistent with the elements for trading programs required by 40 CFR 51.308(e)(2)(vi). The backstop trading program contains milestones, which are in effect a cap. Under a backstop trading program, the provisions of a trading program are enacted only if the milestone has been exceeded. Since the 309 trading program is a backstop trading program, the provisions outlined below will only apply if the milestone is exceeded and the program is triggered.
Pursuant to 40 CFR 51.308(e)(2)(vi)(A), the backstop trading program has the same applicability requirements in all states opting to participate in the program. WAQSR Chapter 14, Section 2(c) contains the applicability provisions and provides that the backstop trading program applies to all stationary sources that emit 100 tons per year or more of SO
We are proposing to approve that the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(vi)(A).
Section C.1.C1 of the SIP and WAQSR Chapter 14, Section 2(g) contain the allowance allocation provisions as required by 40 CFR 51.308(e)(2)(vi)(B). The rule requires sources to open a compliance account in order to track allowances and contains other requirements associated with those accounts. The SIP contains the provisions on how the State will allocate allowances and requires that the total number of allowances distributed cannot exceed the milestone for any given year.
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(vi)(B).
Pursuant to 40 CFR 51.308(e)(2)(vi)(C)–(E), WAQSR Chapter 14, Section 2(h)(i)(A) provides that sources subject to 40 CFR part 75 under a separate requirement from the backstop trading program shall meet the requirements contained in 40 CFR part 75 with respect to MRR of SO
Although most sources covered by the backstop trading program will be able to meet the monitoring requirements stated above, there are some emission units that are either not physically able to install the needed equipment or do not emit enough SO
WAQSR Chapter 14, Section 2(h)(i)(B) allows sources with any of the following emission units to apply to establish a special reserve compliance account: (1) Any smelting operation where all of the emissions from the operation are not ducted to a stack; (2) any flare, except to the extent such flares are used as a fuel gas combustion device at a petroleum refinery; or (3) any other type of unit without add-on SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(vi)(C)–(E).
As required by 40 CFR 51.308(e)(2)(vi)(F), section C2 of the SIP provides the overarching specifications for an Emissions and Allowance Tracking System (EATS). According to the SIP, the EATS must provide that all necessary information regarding emissions, allowances, and transactions is publicly available in a secure, centralized database. The EATS must ensure that each allowance is uniquely identified, allow for frequent updates, and include enforceable procedures for recording data. If the program is triggered, the State will work with other states and tribes participating in the trading program to implement this system. More detailed specifications for the EATS are provided in the
In addition, the State will work with the other participating states to designate one tracking system administrator (TSA). The SIP provides that the TSA shall be designated as expeditiously as possible, but no later than six months after the program trigger date. The State will enter into a binding contract with the TSA that shall require the TSA to perform all TSA functions described in the SIP, such as transferring and recording allowances (see section A2.2 of the SIP).
We are proposing to determine that the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(iv)(F).
Pursuant to 40 CFR 51.308(e)(2)(vi)(G), WAQSR Chapter 14, Section 2(d) contains provisions for the establishment of an account representative. The rule requires each source to identify one account representative. The account representative shall submit to the State and the TSA a signed and dated certificate that contains a certification statement verifying that the account representative has all the necessary authority to carry out the account representative responsibilities under the trading program on behalf of the owners and operators of the sources. The certification statement also needs to indicate that each such owner and operator shall be fully bound by the account representatives representations, actions, inactions, or submissions and by any decision or order issued to the account representative by the State regarding the trading program.
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(vi)(G).
The State has established procedures pertaining to allowance transfers to meet the requirements of 40 CFR 51.308(e)(2)(vi)(H). WAQSR Chapter 14, Section 2(i) contains requirements sources must follow for allowance transfers. To transfer or retire allowances, the account representative shall submit the transfer account number(s) identifying the transferor account, the serial number of each allowance to be transferred, the transferor's account representative's name and signature, and date of submission. The allowance transfer deadline is midnight Pacific Standard Time on March 1 of each year following the end of the control period. Sources must correctly submit transfers by this time in order for a source to be able to use the allowance to demonstrate compliance.
Section C3 of the SIP provides the procedures the TSA must follow to transfer allowances. The TSA will record an allowance transfer by moving each allowance from the transferor account to the transferee account as specified by the request from the source, if the transfer is correctly submitted, and the transferor account includes each allowance identified in the transfer. Within five business days of the recording of an allowance transfer, the TSA shall notify the account representatives of both the transferor and transferee accounts, and make the transfer information publicly available on the Internet. Within five business days of receipt of an allowance transfer that fails to meet the requirements for transfer, the TSA will notify the account representatives of both accounts of the decision not to record the transfer, and the reasons for not recording the transfer.
We are proposing to determine that the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(vi)(H).
Pursuant to 40 CFR 51.308(e)(2)(vi)(I), the State has provided the procedures for determining compliance in WAQSR Chapter 14, Section 2(k). Per this section, the source must hold allowances as of the allowance transfer deadline in the source's compliance account (together with any current control year allowances held in the source's special reserve compliance account) in an amount not less than the total SO
We are proposing to determine that the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(vi)(I).
WAQSR Chapter 14, Section 2(k)(iii) provides the penalty provisions required by 40 CFR 51.308(e)(2)(vi)(J). Per this section, a source's allowances will be reduced by an amount equal to three times the source's tons of excess emissions if they are unable to show compliance. Allowances allocated for the following control period will be the original allowance minus the allowance penalty. If the compliance account does not have sufficient allowances allocated for that control period, the required number of allowances will be deducted from the source's compliance account regardless of the control period for which they were allocated.
We are proposing to determine that the State's SIP meets the requirements of 40 CFR 51.308(e)(2)(vi)(J).
As allowed by 40 CFR 51.308(e)(2)(vi)(K), WAQSR Chapter 14, Section 2(j) allows sources to use allowances from current and prior years to demonstrate compliance, with some restrictions. Sources can only use 2018 allowances to show compliance with the 2018 milestone and may not use allowances from prior years. In order to ensure that the use of banked allowances does not interfere with the attainment or maintenance of reasonable progress goals, the backstop trading program includes flow-control provisions. The flow-control provisions are triggered if the TSA determines that the banked allowances exceed ten percent of the milestone for the next control year, and thereby ensure that too many banked emissions are not used in any one year (see section C4 of the SIP).
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.309(e)(2)(vi)(J).
Pursuant to 40 CFR 51.308(e)(2)(vi)(L), the SIP contains provisions for a 2013 assessment and SIP revision. For the 2013 assessment, the State will work with other participating states to develop a projected emission inventory for SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 308(e)(2)(vi)(L).
Pursuant to 40 CFR 51.309(d)(4)(vii), the State submitted another SIP dated January 12, 2011 that contains the requirements for PM and NO
Pursuant to 40 CFR 51.309(d)(5)(i), the State, in collaboration with the WRAP, assembled a comprehensive statewide inventory of mobile source emissions. The inventory included on-road and non-road mobile source emissions inventories for western states for the 2003 base year and emission projections for the year 2018.
Pursuant to 40 CFR 51.309(d)(5)(i)(B), the State reviewed SO
We are proposing to determine the State's SIP meets the requirements of 40 CFR 51.309(d)(5).
Pursuant to 40 CFR 51.309(d)(6)(i), the State has evaluated its existing open burning regulations and all existing federal and private prescribed fire smoke management programs in the State. The State evaluated the potential for fire to contribute to visibility impairment in the 16 Class I areas of the Colorado Plateau, and how visibility protection is addressed by different entities in planning and operation. The state of Wyoming relied upon the WRAP report
The State determined that a new smoke management regulation, incorporated as WAQSR Chapter 10, Section 4 and submitted as part of the regional haze SIP, would be required to meet the requirements of 40 CFR 51.309(d)(6)(i). WAQSR Chapter 10, Section 4 establishes requirements for vegetative burners pertaining to the management of emissions and air quality impacts from smoke on public health and visibility. WAQSR Chapter 10, Section 4 applies to burns that will emit more than 0.25 tons of PM
In order to minimize emissions, the State's SIP relies on the use of emission reduction techniques by burners. Any techniques used in conjunction with burning that reduce the actual amount of emissions produced from a planned burn project are considered emission reduction techniques. The SIP requires land managers burning SMP–II burns to use at a minimum one emission reduction technique for each planned burn project. SMP–II burners will indicate on the required State registration form the emission reduction technique(s) utilized for each planned burn project (WAQSR Chapter 10, Section 4(g)(i)(C)).
The SIP only allows SMP–I burns to be ignited during daytime hours when there is a slight breeze and there is no population within 0.5 mile of the burn project in the downwind direction. To comply with this requirement, the burner will document the time of day of the planned burn project, the wind direction and wind speed at the time of the burn project, as well as the distance to a population (WAQSR Chapter 10, Section 4(f)(iii)).
For SMP–II burns, the SIP provides the burner with two options pertaining to the dispersion of smoke and burning. A burner can ignite a planned burn project during times when the ventilation is classified as “Good” or
The State SIP requires that burners generating over 100 tons per year of PM must consider the use of alternatives to burning. Burners must then document that the use of alternatives to burning were considered prior to the decision to utilize fire. The documentation includes citing the feasibility criterion that prevented the use of alternatives. This documentation must be included on the registration form provided by the State (WAQSR Chapter 10, Section 4(h)).
For SMP–I burns, the SIP requires that burners must make a good faith effort to utilize a minimum of one public notification method specified in the SIP to notify the populations that are located within one half mile of the planned burn project. The burner must conduct public notification no sooner than 30 days and no later than two days in advance of the ignition of the planned burn project. In addition, the burner will also notify the jurisdictional fire authority per the requirements of the jurisdictional fire authority,
For SMP–II burns, the SIP requires that burners must make a good faith effort to utilize a minimum of one public notification method to notify populations within 10 miles of the planned burn project. The burner must conduct public notification no sooner than 30 days and no later than two days in advance of the ignition of the planned burn project, and will provide documentation of public notification on the State post burn reporting form. In addition, the burner will also notify the jurisdictional fire authority per the requirements of the jurisdictional fire authority or, absent any such requirements, immediately prior to ignition (WAQSR Chapter 10, Section 4(g)(iii)).
Burners of SMP–I burns are required to attend and observe their planned burn projects periodically (WAQSR Chapter 10, Section 4(f)(iv)). SMP–II burners are required to conduct and document visual monitoring on all planned burn projects. On a case-by-case basis, SMP–II burners may also be required by the State to conduct and document ambient air quality and/or visibility monitoring. The use of monitoring equipment will be based on the planned burn project's proximity to a population, nonattainment area, or Class I area (WAQSR Chapter 10, Section 4(g)(i)(E)).
The Wyoming Environmental Quality Act authorizes surveillance, inspection, and enforcement for the State's regulations. WAQSR Chapter 10, Section 4(e)(ii) specifies that burners and responsible jurisdictional fire authorities shall give permission to State staff to enter and inspect for the purpose of investigating a planned burn project or unplanned fire event and for determining compliance or non-compliance.
The State will evaluate the fire programs in the State as part of the future progress reports required by 40 CFR 51.309(d)(10). The State will use these evaluations to revise Chapter 10, Section 4, as needed. The provisions for program evaluation are included in the
Pursuant to 40 CFR 51.309(d)(6)(ii), the State maintains a fire emission inventory of the following pollutants: VOC, NO
In section E.3 of the SIP, the State is required to work with key public and private entities to identify and remove administrative barriers to the use of alternatives to burning for prescribed fire on federal, State, and private lands, pursuant to 40 CFR 51.309(d)(6)(iii). The process is collaborative and provides for continuing identification and removal of administrative barriers, and considers economic, safety, technical and environmental feasibility criteria, and land management objectives. Should the State determine that an administrative barrier exists, the State will work collaboratively with the appropriate public and private entities to evaluate the administrative barrier, identify the steps necessary to remove the administrative barrier, and initiate the removal of the administrative barrier, where it is feasible to do so.
Pursuant to 40 CFR 51.309(d)(6)(iv), the smoke management programs that operate within the State are consistent with the
Pursuant to 40 CFR 51.309(d)(6)(v), the State will seek to minimize emission increases in fire through the use of annual emission goal using the policies set out by
We are proposing that the Sate's SIP meets the requirements of 40 CFR 51.309(d)(6).
WRAP performed an assessment of the impact of dust emissions from paved and unpaved roads on the 16 Class I areas of the Colorado Plateau. The WRAP modeled and calculated the significance of road dust in terms of the impact on visibility on the worst 20 percent days. The modeled regional impact of road dust emissions ranged from 0.31 deciviews at the Black Canyon of the Gunnison National Park to 0.08 deciviews at the Weminuche Wilderness Area. (For more information on the WRAP modeling and assessment of road dust impacts, see Chapter 7 of the WRAP TSD). Based on the WRAP modeling, the State has concluded that road dust is not a significant contributor to visibility impairment in the 16 Class I areas. Since the State has found that road dust is not a significant contributor to visibility impairment, the State did not include road dust control strategies in the SIP pursuant to 40 CFR 51.309(d)(7) (section F.1(b) of the SIP).
The State will track road dust emissions with the assistance of the WRAP and provide an update on paved and unpaved road dust emission trends, including any modeling or monitoring information regarding the impact of these emissions on visibility in the 16 Colorado Plateau Class I Areas. These updates will include a reevaluation of whether road dust is a significant contributor to visibility impairment. These updates shall be part of the periodic implementation plan revisions pursuant to 40 CFR 51.309(d)(10) (section I.1(a) of the SIP).
We propose to determine the State's SIP meets the requirements of 40 CFR 51.309(d)(7).
Under 40 CFR 51.309(d)(8), states must provide information on renewable energy and other pollution prevention efforts in the state. 40 CFR 51.309(d)(8) does not require states to adopt any new measures or regulations. Thus, we find the information Wyoming provided adequate to meet the requirements of 40 CFR 51.309(d)(8) as discussed below.
Pursuant to 40 CFR 51.309(d)(8)(i), Table G–1 of the SIP summarizes all pollution prevention and renewable energy programs currently in place in Wyoming. The State also determined the renewable energy generation capacity and production in the State and the State's total energy generation capacity and production.
Per 40 CFR 51.309(d)(8)(ii), section G.4 of the SIP states that the State has provided incentives for early compliance by participating in the 309 regional SO
Per 40 CFR 51.309(d)(8)(iii), the State provided a table that discusses the programs within the State that preserve and expand energy conservation efforts. Such programs include the “Energy Exchange Program” by PacifiCorp and “Rebuild America,” a Department of Energy resource network. For a complete list of programs in the State, see table G–5 of the SIP.
Pursuant to 40 CFR 51.309(d)(8)(iv), the State has utilized data from the National Renewable Energy Laboratory to assess areas where there is the potential for renewable energy to supply power in a cost-effective manner. The SIP summarizes the potential for renewable energy development in Wyoming. See Figures G–1 through G–7 of the SIP for more detailed information.
Pursuant to 40 CFR 51.309(d)(8)(v), the State has used projections made by the WRAP of the short and long-term emissions reductions, visibility improvements, cost savings, and secondary benefits associated with renewable energy goals, energy efficiency, and pollution prevention activities. (A complete description of these projections can be found in the Wyoming TSD in a document titled
Pursuant to 40 CFR 51.309(d)(8)(vi), the State will rely on current renewable energy programs as described in section G1 of the SIP to demonstrate progress in achieving the renewable energy goal of the GCVTC. The GCVTC's goal is that that renewable energy will comprise 10 percent of the regional power needs by 2005 and 20 percent by 2015. The State will submit progress reports in 2013 and 2018, describing the State's contribution toward meeting the GCVTC renewable energy goals. To the extent that it is not feasible for the State to meet its contribution to these goals, the State will identify what measures were implemented to achieve its contribution, and explain why meeting its contribution was not feasible.
Pursuant to 40 CFR 51.309(d)(8)(i), Table G–1 of the State's SIP summarizes all pollution prevention and renewable energy programs currently in place in Wyoming. The State's SIP provides an estimate of renewable energy generating capacity in megawatts for each of the renewable energy categories (see Table 12 of the SIP). Total installed generation capacity within Wyoming in 2002 was 5,485 MW. Renewable energy generation capacity in Wyoming represented 0.77 percent of the total installed capacity.
As part of the 1996 GCVTC report to EPA, the Commission included additional recommendations that EPA did not adopt as part of 40 CFR 51.309. Pursuant to 40 CFR 51.309(d)(9), the State has evaluated the additional recommendations of the GCVTC to determine if any of these recommendations could be practicably included in the SIP. The State's complete evaluation is included in the State's TSD in a document titled
We are proposing to determine that the State's SIP meets the requirements of 40 CFR 51.309(d)(9).
Pursuant to 40 CFR 51.309(d)(10)(i), section I of the SIP requires the State to submit to EPA, as a SIP revision, periodic progress reports for the years 2013 and 2018. The State will assess whether current programs are achieving reasonable progress in Class I areas within Wyoming, and Class I areas outside Wyoming that are affected by emissions from Wyoming. The State will address the elements listed under 40 CFR 51.309(d)(10)(i)(A) through (G) as summarized below: (1) Implementation status of 2003 SIP measures; (2) summary of emissions reductions; (3) assessment of most/least impaired days; (4) analysis of emission reductions by pollutant; (5) significant changes in anthropogenic emissions; (6) assessment of 2003 SIP sufficiency; and (7) assessment of visibility monitoring strategy.
Pursuant to 40 CFR 51.309(d)(10)(ii), the State will take one of the following actions based upon information contained in each periodic progress report. The State will provide a negative declaration statement to EPA saying that no SIP revision is needed if the State determines reasonable progress is being achieved. If the State finds that the SIP is inadequate to ensure reasonable progress due to emissions from outside the State, the State will notify EPA and the other contributing state(s), and initiate efforts through a regional planning process to address the emissions in question. If the State finds that the SIP is inadequate to ensure reasonable progress due to emissions from another country, Wyoming will notify EPA and provide information on the impairment being caused by these emissions. If the State finds that the SIP is inadequate to ensure reasonable progress due to emissions from within the State, the State will develop emission reduction strategies to address the emissions and revise the SIP no later than one year from the date that the progress report was due.
We propose to determine that the State's SIP meets the requirements of 40 CFR 51.309(d)(10).
Pursuant to 40 CFR 51.309(d)(11), the State has participated in regional planning and coordination with other states by participating in the WRAP while developing its emission reduction strategies under 40 CFR 51.309. Appendix D of the SIP contains detailed information on the interstate coordination programs developed by the WRAP and the State's participation in those programs. The backstop trading program in the SIP and companion rules involved coordination of the three states (Wyoming, Utah, and New Mexico, including Albuquerque) in its development and will continue to involve coordination of the participants once it is implemented.
We propose to determine the State's SIP is consistent with the 40 CFR 51.309(d)(11).
On January 12, 2011, the State submitted a SIP pursuant to 40 CFR 51.309(g) in order to address the State's seven Class I areas not on the Colorado Plateau. EPA is acting on this submission separately.
In this action, EPA is proposing to approve Wyoming SIP revisions submitted on January 12, 2011 and April 19, 2012 that address the RHR for the mandatory Class I areas under 40 CFR 51.309. EPA is proposing that the January 12, 2011 and April 19, 2012 SIPs meet the requirements of 40 CFR 51.309, with the exception of 40 CFR 51.309(d)(4)(vii), and 40 CFR 51.309(g).
As part of the January 12, 2011 submittal, the State submitted revisions to WAQSR. The State submitted WAQSR Chapter 14, Sections 2 and 3—
The State submitted another SIP revision dated January 12, 2011 that addresses the requirements under 40 CFR 51.309(d)(4)(vii) and 40 CFR 51.309(g) pertaining to BART for PM and NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves some state law as meeting Federal requirements and disapproves other state law because it does not meet Federal requirements; this proposed action does not impose additional requirements beyond those imposed by state law. For that reason, this proposed 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).
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule; extension of comment period.
EPA issued a proposed rule in the
Comments, identified by docket identification (ID) number EPA–HQ–OPPT–2010–1039 must be received on or before July 31, 2012.
Follow the detailed instructions as provided under
This document extends the public comment period established in the
Environmental protection, Chemicals, Hazardous substances, Premanufacture notification, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Health, Laboratories, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Laboratories, Reporting and recordkeeping requirements.
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission or FCC) proposes additional rules to help consumers prevent and detect the placement of unauthorized charges on their telephone bills, an unlawful and fraudulent practice commonly referred to as “cramming.” Several commenters in this proceeding support additional measures to prevent cramming, including requiring wireline carriers to obtain a consumer's affirmative consent before placing third-party charges on telephone bills (
Interested parties may file comments on or before June 25, 2012, and reply comments on or before July 9, 2012.
You may submit comments, identified by CG Docket No. 11–116, by any of the following methods:
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS), through the Commission's Web site
• Paper filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW–A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial Mail sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.
In addition, parties must serve one copy of each pleading with the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY–B402, Washington, DC 20554, or via email to
Lynn Ratnavale,
This is a synopsis of the Commission's Further Notice of Proposed Rulemaking (
Pursuant to 47 CFR 1.1200
The
1. In the
2. The record reflects significant concern that bill formatting changes and greater transparency alone are not sufficient to deter the widespread problem of cramming. Commenters suggest a number of stronger measures, such as prohibiting all or most third-party charges from being placed on telephone bills or requiring carriers to obtain a consumer's affirmative consent before placing third-party charges on their own bills to consumers (“opt-in”). Consumer groups argue that a requirement for consumer consent or an affirmative opt-in to receive third-party charges should apply to consumers' wireline, VoIP, and/or CMRS bills and that any requirement to separate third-party charges on the bills of those consumers who opt-in should apply across all platforms. The Commission seeks additional comment on whether it should adopt additional measures, such as an opt-in approach, and, if so, the best way to implement them. To adequately evaluate an opt-in approach, a more detailed record is needed, especially with respect to the structure and mechanics of an opt-in approach and how opt-in could be implemented for existing consumers whose carrier already may be placing non-carrier third-party charges on their telephone bills. The Commission also seeks to bolster the record with respect to its authority to adopt additional anti-cramming measures.
3. The Commission seeks additional comment on whether an “opt-in” approach is warranted and how it should be structured. Should an opt-in requirement apply only to new consumers or to all consumers? If “opt-in” should only apply to new
4. Assuming the Commission decides to adopt an “opt-in” approach, the secondary set of issues revolves around how an “opt-in” measure should be implemented from a practical standpoint. Should the Commission adopt an all-or-nothing opt-in where the consumer has an opportunity to opt-in or reject all third-party charges, including long distance carrier charges? Should the consumer have the choice to opt-in or reject carrier and non-carrier charges separately, or should the consumer have an opportunity to indicate that they choose not to receive third-party billing charges unless or until they are consulted about specific individual charges from third parties?
5. With respect to procedure, there is the question of the best format for implementing the “opt-in” mechanism. What would be the best procedures to obtain a consumer's opt-in to third-party charges?
6. The Commission seeks comment on the specific costs of the measures discussed in the
7. The Commission also seeks comment on where and when a consumer should be made aware of the opportunity to opt-in to third-party billing charges. Should carriers inform consumers at the point of sale, such as during the telephone conversation between the consumer and the carrier's customer service representative or while using online sign-up procedures? Should notification of the option to opt-in also appear in Web site, print, or in-store advertising? Should existing consumers be informed on their bills? Should the consumer's current opt-in status be disclosed on every bill so that he or she will know whether to be looking for such charges on that bill? The Commission seeks comment regarding the duration of each opt-in approval and what happens when a consumer decides to revoke a prior opt-in approval or to give new opt-in approval. What procedures should be required for a consumer to change an opt-in election? Should a consumer be able to opt-in to specific types of third-party charges, from a specific third party, or for a specific period of time? Do carriers have the technical ability to distinguish such charges today and, if not, what would be the cost to obtain that ability? The Commission seeks comment on the level of consumer interest in this type of “opt-in” approach, the potential consumer benefits, as well as the complexity and costs such a scenario poses for carriers.
8. Are there additional measures the Commission could take to combat cramming? Are there measures beyond an “opt-in” approach or alternative approaches that we should consider and might be more effective at combating cramming?
9. Cramming appears to be less a problem for CMRS consumers than for wireline consumers, but it may be on the rise. The Commission seeks comment on potential regulatory and non-regulatory measures to address the issue. Are there technological solutions that might help consumers, such as apps for mobile phones? What steps has industry taken to date and what steps might it take in the future to protect CMRS consumers? Are there any steps the Commission should consider to help CMRS consumers combat cramming? To the extent that cramming issues develop for VoIP services, the Commission seeks comment about that issue and answers to the above questions. The Commission requests that commenters address implementation costs of any other proposed anti-cramming measures and any questions of legal authority.
10. The Commission seeks comment on the respective roles of carriers and billing aggregators in screening charges for purposes of existing blocking options and how these roles might change if the Commission adopts an “opt-in” requirement.
11. The Commission seeks comment on its authority to adopt an “opt-in” requirement. Would the Commission's section 201(b) authority to regulate practices “for and in connection with” telecommunications services support such requirements? Does the Commission's Title I ancillary authority provide support for such requirements? Are there other sources of authority? Would such measures present First Amendment concerns, and, if so, how might the Commission address those concerns?
12. As required by section 603 of the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the
13. The
14. The record reflects that cramming primarily has been an issue for wireline telephone consumers. The rules adopted in the Report and Order do not address aspects of cramming which are being considered in the
15. The legal basis for any action that may be taken pursuant to the
16. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the SBA. Nationwide, there are a total of approximately 29.6 million small businesses, according to the SBA. The
17.
18.
19. Of this total, 3,144 had employment of 999 or fewer, and 44 firms had had employment of 1,000 employees or more. Thus under this category and the associated small business size standard, the majority of these Competitive LECs, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers can be considered small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees and 186 have more than 1,500 employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. In addition, 72 carriers have reported that they are Other Local Service Providers. Of the 72, seventy have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities that may be affected by the adopted rules.
20.
21.
22.
23. According to Commission data, 434 carriers report that they are engaged in wireless telephony. Of these, an estimated 222 have 1,500 or fewer employees, and 212 have more than 1,500 employees. Therefore, the Commission estimates that 222 of these entities can be considered small.
24. The
25. These proposed rules may necessitate that some carriers make changes to their existing billing formats and/or disclosure materials which would impose some additional costs to carriers. However, some carriers may already be in compliance with many of these requirements and therefore, no additional compliance efforts will be required.
26. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
27. Any economic burden these proposed rules may have on carriers is outweighed by the benefits to consumers. However, in the
28. None.
29. Pursuant to the authority contained in sections 1–2, 4, 201, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151–152, 154, 201, and 403, the
30. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of proposed rulemaking (NPRM).
In response to petitions for rulemaking submitted by the regulated community, PHMSA proposes to amend the Hazardous Materials Regulations (HMR; 49 CFR Parts 171–180) to update, clarify, or provide relief from miscellaneous regulatory requirements. Specifically, PHMSA is proposing to amend the recordkeeping and package marking requirements for third-party labs and manufacturers to assure the traceability of packaging; clarify an acceptable range in specifications for resins used in the manufacture of plastic drums and Intermediate Bulk Containers (IBCs); remove the listing for “Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol, NA1203”; harmonize internationally and provide a limited quantity exception for Division 4.1, Self-reactive solids and Self-reactive liquids Types B through F; allow smokeless powder classified as a Division 1.4C material to be reclassified as a Division 4.1 material to relax the regulatory requirements for these materials without compromising safety; and provide greater flexibility by allowing the Dangerous Cargo Manifest to be in locations designated by the master of the vessel besides “on or near the vessel's bridge” while the vessel is in a United States port.
Comments must be received by July 23, 2012.
You may submit comments by any of the following methods:
•
•
•
•
Lisa O'Donnell at (202) 366–8553 at the Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590–0001.
The Administrative Procedure Act (APA) requires Federal agencies to give interested persons the right to petition an agency to issue, amend, or repeal a rule (5 U.S.C. 553(e)). PHMSA's rulemaking procedure regulations, in 49 CFR 106.95, provide for persons to ask PHMSA to add, amend, or delete a regulation by filing a petition for rulemaking containing adequate support for the requested action. In this NPRM, PHMSA (also “we” or “us”) proposes to amend the HMR in response to petitions for rulemaking submitted by shippers, carriers, manufacturers, and industry representatives. These proposed revisions are intended to reduce regulatory burdens while maintaining or enhancing the existing level of safety. We discuss the petitions and proposals in detail in Section II of this NPRM. The following is a brief summary of the proposed regulatory changes.
• Revise § 178.3 to clearly indicate that a manufacturer or third-party laboratory mark may not be used when continued certification of a packaging is conducted by someone other than the original manufacturer or third-party testing laboratory, unless specifically authorized by the original manufacturer or third-party testing laboratory;
• Revise §§ 178.601(l), 178.801(l) and 178.955(i) to relax the record retention requirements for package test reports and provide a chart to clearly identify the retention requirements;
• Revise the Hazardous Materials Table (HMT; 49 CFR 172.101) by removing the listing for “Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol, NA1203”; and remove reference to gasohol in Sections §§ 172.336(c)(4) and 172.336(c)(5) as gasohol is a blend of gasoline with not more than 10% ethyl alcohol and the listing for gasoline includes gasoline mixed with ethyl alcohol, with not more than 10% alcohol;
• Revise § 172.101 to refer to § 173.151 to harmonize internationally and provide a limited quantity exception for 4.1, Self-reactive solids and Self-reactive liquids, Types B through F;
• Address a petition that asks that we extend the relief provided by Special Permit DOT–SP–14652 by incorporating it in the HMR and allowing the transport of certain hazardous materials in IM101 portable tanks under T Codes in effect on September 30, 2001;
• Allow smokeless powder classified as a Division 1.4C material to be reclassified as a Division 4.1 material to relax the regulatory requirements for these materials without compromising safety;
• Add a reference in 49 CFR 178.601(c)(4) and 178.801(c)(7) to ASTM D4976–06 Standard Specification for Polyethylene Plastics Molding and Extrusion Materials to provide a range of acceptable resin tolerances in the plastic drum and IBC material; and
• Provide greater flexibility by allowing the Dangerous Cargo Manifest (DCM) to be in locations designated by the master of the vessel besides “on or near the vessel's bridge” while the vessel is in a United States port to ensure that the DCM is readily available to communicate to emergency responders and enforcement personnel the presence and nature of the hazardous materials on board a vessel.
A. Certification Package Marking and Recordkeeping Requirements (P–1479)
B. Clarification of Alcohol and Gasoline Mixtures (P–1522)
C. Self-Reactive Solid Type F (P–1542)
D. Plastic Drum and IBC Material Thickness Standards (P–1554) and (P–1564)
E. SP 9735, Dangerous Cargo Manifest Location (P–1556)
F. Table of Portable Tank T Codes TI—T–22 (P–1558)
G. Smokeless Powder, Division 1.4C (P–1559)
In a petition for rulemaking (P–1479), gh Package & Product, Testing and Consulting, Inc. requests that PHMSA consider amending the HMR to indicate that an entity performing continued package certification is not allowed to use the original manufacturer's or third-party laboratory's mark unless authorized by the manufacturer or third-party laboratory; and that package test reports are kept for a limited time instead of the current requirement of “until the package is no longer manufactured.”
Regarding the first issue, the petitioner states that his laboratory tested a package at least three times, and the package failed each time. Eleven years after the petitioner had tested the package, he learned that the package that had failed in his laboratory was still being manufactured and that the petitioner's symbol was being used on the package as the package tester's mark. For these reasons, the petitioner is concerned that the regulations expose the manufacturer and the original third-party test laboratory to potential liability for defective packaging and other packaging violations.
The current regulations provide the person who is certifying compliance of a package the option of marking the package with a symbol rather than the company name and address provided that the symbol is registered with PHMSA's Associate Administrator for Hazardous Materials Safety. While it is implied that the symbol being used is that of the person who has registered the symbol, it is not explicit. The petitioner has indicated that since the regulations do not specify who is authorized to use the mark, some third-party retesters who did not initially certify the package are using the original third-party laboratory's symbol to certify compliance. While the symbol is associated with the original manufacturer or third-party laboratory, that entity has no control over the package being retested by someone else.
Regarding the second issue, the petitioner explains that the record retention requirements indicate that the test report must be maintained at each location where the packaging is manufactured and each location where the design qualification tests are conducted for as long as the packaging is produced and for at least two years thereafter. According to petitioner, often the original manufacturer or third-party laboratory is not aware that a package is still being made. The petitioner seeks relief from the paperwork burden.
In this NPRM, PHMSA is proposing to revise § 178.3 to clearly indicate that the required marking must identify the person who is certifying that the packaging meets the applicable UN Standard. Further, for continued certification of the packaging through periodic retesting, the marking must identify the person who certifies that the packaging continues to meet the applicable UN Standard.
In addition, to address concerns raised by the petitioner regarding an open-ended paperwork burden, we are proposing to revise § 178.601(l), which specifies recordkeeping requirements for testing non-bulk packaging; § 178.801(l), which specifies recordkeeping requirements for testing IBCs; and § 178.955(i), which specifies
In its petition (P–1522), Shell Chemicals asks PHMSA to remove from the HMT the listing for “Gasohol, with not more than 10% ethanol.” Shell states that the proper shipping names for “Gasoline, includes gasoline mixed with ethyl alcohol (ethanol), with not more than 10% alcohol” and “Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture with more than 10% ethanol,” provide the necessary entries for accurate and specific descriptions of these fuel blends. Consistent with the removal of gasohol from the HMT, Shell Chemicals asks that we remove reference to gasohol in § 172.336(c)(4) and 172.336(c)(5), which contain hazard communication requirements for compartmented cargo tanks, tank cars, or cargo tanks containing these fuels. These provisions were amended as the result of a final rule issued on January 28, 2008 under Docket HM–218D (73 FR 4699) intended to help emergency responders identify and respond to the hazards unique to fuel blends with high ethanol concentrations.
In the January 28, 2008 final rule, we revised the entry for “Gasohol, gasoline mixed with ethyl alcohol, with not more than 20% alcohol” to limit the applicability of the entry to gasoline mixtures with not more than 10% alcohol. In addition, we amended the listing for Gasoline, to read “Gasoline, includes gasoline mixed with ethyl alcohol, with not more than 10% alcohol.” At the time, Shell suggested that we remove the entry “Gasohol, NA1203” and revise the entry for “Gasoline” to add a special provision that specifically communicates to shippers that the entry “Gasoline” may be used for gasoline and ethanol blends with not more than 10% ethanol for use in spark ignition engines. While we agreed then that Shell's suggestion had merit, we did not remove the entry “Gasohol” in HM–218D. We did however revise the entry “Gasoline” to allow for that description to be used for gasoline and ethanol blends with not more than 10% ethanol.
Shell Chemicals also petitions for the removal of Special Provision 172 from Column 7 in association with all packing groups for the Proper Shipping Name “Alcohols, n.o.s.” Special Provision 172 states that “this entry includes alcohol mixtures containing up to 5% petroleum products.” Shell indicates that a blend of 5% gasoline and 95% alcohol is not an alcohol solution as indicated in Special Provision 172. They object to the term “solution” because under certain conditions such as low temperatures, these materials can separate. For these reasons, Shell states that these blends should not be permitted to be transported under the Alcohols, n.o.s., UN1987; rather, Denatured alcohol, NA 1987, and Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, UN 3475, are more appropriate descriptions. While we agree that Denatured alcohol is a more accurate description, this proper shipping name applies to domestic shipments only and may not be available to imported shipments. Retaining reference to Special Provision 172 in the listing for Alcohols, n.o.s. would continue to provide a listing for international shipments of alcohol mixtures containing up to 5% petroleum products.
We agree that the proper shipping names for “Gasoline, includes gasoline mixed with ethyl alcohol, with not more than 10% alcohol,” and “Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture with more than 10% ethanol,” provide the necessary entries for accurate and specific description of these fuel blends. We also agree that the proper shipping name for “Alcohol, n.o.s.” is not as specific as the listings for Gasoline, including gasoline mixed with ethyl alcohol, with not more than 10% alcohol, and Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture with more than 10% ethanol. As such, we propose to amend the HMT by removing the listing for “Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol.” We also propose to revise § 172.336 to remove all references to “gasohol” and to add a table to more clearly indicate hazard communication requirements for compartmented cargo tanks, tank cars, or cargo tanks containing these fuels.
In a petition (P–1542), the Association of Hazmat Shippers (AHS) requests that we amend the HMT to refer to § 173.151, exceptions for Class 4, to provide the limited quantity exception for Self-reactive solid, Type F materials, consistent with international regulations.
According to the petitioner, imports of this material may be handled as limited quantities, but domestic shipments must be treated as fully regulated hazardous materials. They indicate that this situation has led to confusion and frustration, particularly upon reshipment of the same products either in the United States or internationally.
In the interest of international harmonization and clarification, we propose to expand on the AHS petition and seek to authorize all eligible self-reactive liquid and solid material as limited quantities in accordance with the type and quantity of substances authorized in the UN Model Regulations. Accordingly, we propose to authorize types B through F non-temperature controlled liquid and solid self-reactive materials as limited quantities by amending the listings in the HMT for Self-reactive solids and Self-reactive liquids, Types B through F, to add references in column 8(a) in the HMT to § 173.151 to allow limited quantities of Self-reactive solids and Self-reactive liquids, Types B through F materials to be excepted from labeling and placarding requirements as long as the materials meet the provisions of § 173.151.
In two petitions (P–1554 and P–1564), Rigid Intermediate Bulk Container Association (RIBCA) and the Plastic Drum Institute (PDI) have indicated that their members have been cited for “probable violations” for a number of reasons pertaining to changes in material construction in their plastic drums and IBCs. These reasons include: Using multiple suppliers for a material of construction; differences in the material of construction; changes in material suppliers without performing design tests; and changes within the material suppliers accepted specifications for melt flow and density. In an effort to ensure safety and compliance when receiving each order of resin, RIBCA and PDI ask that we incorporate by reference ASTM D4976–06, Standard Specification for Polyethylene Plastics Molding and Extrusion Materials, which provides standard requirements for polyethylene plastic molding and extrusion materials. The petitioners request that we add a reference to ASTM D4976–06. The petitioners further ask that PHMSA revise the HMR to state that plastic drums or IBCs made from polyethylene meeting ASTM D4976–06 do not constitute a different package.
We believe that this petition has merit in that it would provide acceptable ranges for the polyethylene plastics molding and extrusion materials used in the production of plastic drums and IBCs. For that reason we propose to incorporate by reference in § 171.7 ASTM D4976–06, Standard Specification for Polyethylene Plastics Molding and Extrusion Materials, and revise §§ 178.509(b)(1) and 178.707(c)(3) to include reference to ASTM D4976–06.
With respect to the request that we revise the HMR to state that plastic drums or IBCs made from polyethylene within the same density category of ASTM D4976–06 do not constitute a different package, we do not have sufficient package testing data, such as performance test results and transportation experience, to show whether the ranges allowed for plastic molding in ASTM D4976–06 provide adequate strength and consistency when used as a component in packagings for transporting hazardous materials. For this reason, we are not proposing to make that change.
The International Vessel Operators Dangerous Goods Association (IVODGA) (formerly known as the International Vessel Operators Hazardous Materials Association, Inc.) has asked in a petition (P–1556) that PHMSA revise the requirements for where the DCM is kept onboard when the vessel is docked in a United States port. Section 176.30(a) requires the DCM be “kept in a designated holder on or near the vessel's bridge.” According to IVODGA, when a vessel is underway, the bridge is occupied at all times and the DCM is readily accessible; however, when a vessel is docked in port during loading and unloading operations, the bridge is often left unattended and locked for security purposes. Thus, the requirement to keep the DCM on or near the vessel's bridge at all times is contrary to the purpose of the DCM, which is to be readily available to communicate to the crew and emergency responders the presence and nature of the hazardous materials on board a vessel.
Given the impractical maintenance of the DCM on or near the vessel's bridge while docked in port, IVODGA requests that PHMSA allow the DCM to be kept in a place other than the bridge of the vessel. Hapag-Lloyd AG currently holds a special permit (DOT–SP 9735) which authorizes the DCM “to be retained in a location other than on or near the bridge” while subject vessels are in port. The permit requires the DCM to be maintained either in the vessel's cargo office or another location designated by the master of the vessel. The permit further requires the DCM to be readily accessible to emergency responders, and for a sign to be placed in the designated holder on or near the vessel's bridge indicating the location of the DCM while the vessel is in port. During loading and discharging operations, the vessel's cargo office is manned and a working copy of the DCM is updated as hazardous materials are loaded and discharged. This working copy, therefore, would contain the most complete and correct information concerning hazardous materials aboard the vessel at any time during the loading/discharging process. The cargo office would also be readily accessible in an emergency, so the DCM would be immediately available to first responders.
We agree with the petitioner that the DCM should be allowed to be in locations designated by the master of the vessel besides “on or near the bridge” while the vessel is docked in a United States port while cargo unloading, loading, or handling operations are underway and the bridge is unmanned. The location of the DCM chosen by the master must be readily accessible to emergency personnel in an emergency and enforcement personnel for inspection purposes. Allowing alternate locations of the DCM while the vessel is docked provides greater flexibility to the master without diminishing the DCM requirements and for this reason we propose to incorporate DOT–SP 9735 into § 176.30 of the HMR.
In a petition dated April 12, 2010 (P–1558), Magnum Mud Equipment Company asked PHMSA to amend the HMR to allow certain Class 3 materials to be transported in IM 101 portable tanks, in accordance with the applicable T Codes in effect on September 30, 2001. The petitioner owns approximately six hundred, 1,060 gallon IM 101 tanks used to support the oil and gas industry in the Gulf of Mexico. The tanks were built in accordance with IM 101 requirements and were allowed to transport hazardous materials commonly used in the oilfield. As a result of changes made to the HMR in final rule under Docket HM–215D (66 FR 33316), in January 2010, several Hazard Class 3 materials were no longer allowed to be transported in IM 101 tanks, but rather were required to move in tanks specified in the new T Codes. The petitioner's interest is to allow its equipment and the equipment of other companies servicing the oil and gas industry to remain viable methods of transport to the industry.
A few owners of IM 101 tanks applied for and were granted a special permit authorizing the use of the IM 101 tanks beyond January 2010. The permit (DOT SP–14652) authorized the transport of UN1193, Ethyl methyl ketone or Methyl ethyl ketone, Hazard Class 3, Packing Group II; UN1203, Gasoline, Hazard Class 3, Packing Group II; UN1230, Methanol, Hazard Class 3, Packing Group II; UN1268, Petroleum distillates, n.o.s. or Petroleum products, n.o.s., Hazard Class 3, Packing Group II or III; and NA1270, Petroleum oil, Hazard Class 3, Packing Group II or III, to be transported in IM 101 portable tanks under T Codes in effect on September 30, 2001. The special permit required that each tank must pass the periodic inspection and test requirements prescribed in § 180.605 for UN portable tanks. Further, the portable tanks were not to be used for the transportation of hazardous materials after January 1, 2025.
On June 4, 2010, PHMSA issued a letter indicating its intent to suspend Special Permit DOT–SP–14652 pending review of information requested of its grantees. Grantees were asked to provide the following information: The number of portable tanks that are operating under the special permit; the number of tanks no longer in service and the reason why they were removed from service; for each portable tank, whether in service or not, the manufacturer's name, build date, original test date, serial number, designated approval agency, water capacity in gallons, maximum allowable working pressure, shell thickness, the date and type of last periodic inspection and retest including name and addresses of entity performing the work; if the portable tank is equipped with bottom outlets, information on the number of independent shut off devices; if remote closure and/or thermal activation features are present, number and type of pressure relief devices including the set pressure, and whether or not the tank is equipped with a flame screen; for portable tanks that have been modified, including replacement or welding to frame members, addition or reconfiguration of lift lugs, information on the modification or repair to include the date, designated approval agency, drawing and or specification with bill of materials, if requested modification was previously denied and copy of new approval certificate if applicable.
On May 26, 2011, following its review of the information grantees provided, PHMSA suspended Special Permit DOT–SP–14652. In its letter of suspension, PHMSA indicated that the special permit does not achieve an equivalent level of safety to maintain the safety of people, property and the environment as required by regulation. On June 10, 2011, Magnum Mud Equipment Company appealed our decision to suspend the special permit.
Predicated on our safety review of the IM 101 tanks that are the subject of this petition, we remain of the opinion that they do not achieve an equivalent level of safety to maintain the safety of people, property and the environment as required by regulation. For this reason, we are denying petition P–1558 and will not incorporate DOT–SP–14652 into the HMR.
The Sporting Arms and Ammunition Manufacturers Institute, Inc (SAAMI), in a petition (P–1559), asks PHMSA to amend § 173.171 to allow Division 1.4C smokeless powder to be reclassified as a Class 4.1 material. Currently § 173.171 allows smokeless powder for small arms that has been classed in Division 1.3C (Explosive) to be reclassified for domestic transportation as a Class 4.1 (Flammable Solid) material for transportation by motor vehicle, rail car, vessel, or cargo-only aircraft, subject to certain conditions.
In a final rule published on January 14, 2009 under Dockets HM–215J and HM–224D (74 FR 2199) PHMSA added a new description to the HMT for Powder, smokeless, Division 1.4C; however, the rule did not extend the allowance provided for Division 1.3C to the Division 1.4C materials.
The petition maintains an equivalent or greater level of safety to the existing regulations. It seeks, with proper examination and approval, to allow a Division 1.4C material which, by definition (see § 172.50), poses the lesser safety risk when compared with Division 1.3 explosives, to be reclassified as a Division 4.1 material.
We believe that this petition has merit, as Division 1.4 explosives pose less of a hazard in transportation than Division 1.3 explosives, which are already allowed to move as Class 4.1 materials. Incorporating this change into § 173.171 will reduce the burden associated with transportation and storage of smokeless powder currently transported as a Division 1.4C explosive.
Below is a section-by-section description of the changes being proposed in this NPRM:
Section 171.7 lists all standards incorporated by reference into the HMR that are not specifically set forth in the regulations. In this NPRM, PHMSA is proposing to incorporate by reference ASTM D4976–06 Standard Specification for Polyethylene Plastics Molding and Extrusion Materials to provide acceptable ranges in the specifications for the resin used in the production of plastic drums and IBCs.
This section provides a hazardous materials table (HMT) that identifies listed materials as hazardous material for purposes of transportation and special provisions referred to in the HMT. In this NPRM, PHMSA is proposing to revise the HMT by removing the listing for “Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol, NA1203.” It also seeks to revise the 10 table entries for “Self-reactive liquid” and “Self-reactive solid”, types B through F, non-temperature controlled, by adding a reference to Section 173.151 in column (8A).
This section provides identification number marking requirements and exceptions for certain transport vehicles and freight containers. In this NPRM, PHMSA is proposing to revise § 172.336 to remove all references to “gasohol.” In addition, we are proposing to add a table that will more clearly indicate the identification number marking requirements for compartmented cargo tanks, tank cars, or cargo tanks containing these fuels.
This section provides exceptions for Class 4 materials. PHMSA is proposing to revise this section by adding paragraphs (b)(1)(ii) and (b)(1)(iii) that prescribe limited quantity requirements for Types B through F self-reactive liquids and solids (non-temperature controlled).
This section provides exceptions for the transportation of smokeless powder for small arms. Currently § 173.171 allows smokeless powder for small arms that has been classed in Division 1.3 (Explosive) to be reclassified for domestic transportation as a Class 4.1 (Flammable Solid) material for transportation by motor vehicle, rail car, vessel, or cargo-only aircraft, subject to certain conditions. In this NPRM, PHMSA is proposing to amend § 173.171 to also allow Division 1.4 smokeless powder to be reclassified as a Class 4.1 material.
Section 176.30 specifies the regulations pertaining to the DCM for transportation by vessel. In this NPRM, PHMSA is proposing to revise this section to allow the DCM to be in locations designated by the master of the vessel besides “on or near the bridge” while the vessel is docked in a United States port.
This section specifies marking on packagings represented as manufactured to a DOT specification or a UN standard. In this NPRM, PHMSA is proposing to revise § 178.3 to clearly indicate that the required marking must identify the person who certifies that the packaging meets the applicable UN Standard.
Section 178.509 specifies standards for plastic drums. In this NPRM, PHMSA is proposing to amend this section to reference ASTM D4976–06 Standard Specification for Polyethylene Plastics Molding and Extrusion Materials to provide acceptable ranges in the specifications for the resin used in the production of plastic drums.
This section provides the general requirements for testing non-bulk packagings and packages. In this NPRM, PHMSA is proposing to revise paragraph (l) of section 178.601 to limit the document retention period for persons conducting initial design testing to five years beyond the next required periodic retest. In addition, we propose to provide a chart to clearly identify the current retention requirement for test reports.
Section 178.707 specifies standards for composite IBCs. In this NPRM, PHMSA is proposing to amend this section to reference ASTM D4976–06 Standard Specification for Polyethylene Plastics Molding and Extrusion Materials to provide acceptable ranges in the specifications for the resin used in the production of IBCs.
This section provides the general requirements for testing IBCs. In this NPRM, PHMSA is proposing to revise
This section provides the general requirements for testing large packagings. In this NPRM, PHMSA is proposing to revise paragraph (i) of section 178.955 to limit the document retention period for persons conducting initial design testing to five years beyond the next required periodic retest. In addition, we propose to provide a chart to clearly identify the current retention requirement for test reports.
This NPRM is published under authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101
This NPRM is not considered a significant regulatory action under section 3(f) Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget (OMB). The proposed rule is not considered a significant rule under the Regulatory Policies and Procedures order issued by the U.S. Department of Transportation (44 FR 11034).
In this NPRM, we propose to amend miscellaneous provisions in the HMR to clarify the provisions and to relax overly burdensome requirements. PHMSA anticipates the proposals contained in this rule will have economic benefits to the regulated community. This NPRM is designed to increase the clarity of the HMR, thereby increasing voluntary compliance while reducing compliance costs.
Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866 Regulatory Planning and Review of September 30, 1993. In addition, Executive Order 13563 specifically requires agencies to: (1) Involve the public in the regulatory process; (2) promote simplification and harmonization through interagency coordination; (3) identify and consider regulatory approaches that reduce burden and maintain flexibility; (4) ensure the objectivity of any scientific or technological information used to support regulatory action; consider how to best promote retrospective analysis to modify, streamline, expand, or repeal existing rules that are outmoded, ineffective, insufficient, or excessively burdensome.
In this NPRM, PHMSA has involved the public in the regulatory process in a variety of ways for this proposed rulemaking. Specifically, in this rulemaking PHMSA is responding to seven petitions that have been submitted by the public in accordance with the Administrative Procedure Act and PHMSA's rulemaking procedure regulations, in 49 CFR 106.95. Key issues covered by the petitions include requests from the public to revise the packaging requirements, clarify the HMR pertaining to alcohol and gasoline mixtures, and allow additional exceptions for the classification of smokeless powder used for small arms ammunition.
This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule would preempt state, local and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The federal hazardous material transportation law, 49 U.S.C. 5125(b)(1), contains an express preemption provision (49 U.S.C. 5125(b)) preempting state, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:
(i) The designation, description, and classification of hazardous materials;
(ii) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;
(iii) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, content, and placement of those documents;
(iv) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; or
(v) The design, manufacture, fabrication, marking, maintenance, reconditioning, repair, or testing of a packaging or container which is represented, marked, certified, or sold as qualified for use in the transport of hazardous materials.
This proposed rule concerns the classification, packaging, marking, labeling, and handling of hazardous materials, among other covered subjects. If adopted, this rule would preempt any state, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are “substantively the same” (see 49 CFR 107.202(d) as the Federal requirements.)
Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that if PHMSA issues a regulation concerning any of the covered subjects, PHMSA must determine and publish in the
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications and does not impose substantial direct compliance
The Regulatory Flexibility Act (5 U.S.C. 601
Consideration of alternative proposals for small businesses. The Regulatory Flexibility Act directs agencies to establish exceptions and differing compliance standards for small businesses, where it is possible to do so and still meet the objectives of applicable regulatory statutes. In the case of hazardous materials transportation, it is not possible to establish exceptions or differing standards and still accomplish our safety objectives.
The proposed changes are generally intended to provide relief to shippers, carriers, and packaging manufactures and testers, including small entities. Therefore, this proposed rule will not have a significant economic impact on a substantial number of small entities; however, it will provide economic relief to some small businesses. For example, limiting the document retention period for persons conducting initial design testing of packages to five years beyond the next required periodic retest, as proposed, should reduce the paperwork burden for some small businesses.
This proposed rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.
This proposed rule does not impose any new information collection requirements. We anticipate a decrease in this information collection burden due to the elimination of the application process for a special permit and a reduction in document retention time if adopted in this rule.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141,300,000 or more to either state, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.
The National Environmental Policy Act, 42 U.S.C. 4321–4375, requires federal agencies to analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations require federal agencies to conduct an environmental review considering: (1) The need for the proposed action; (2) alternatives to the proposed action; (3) probable environmental impacts of the proposed action and alternatives; and (4) the agencies and persons consulted during the consideration process.
Transportation of hazardous materials in commerce is subject to requirements in the HMR, issued under authority of Federal hazardous materials transportation law, codified at 49 U.S.C. 5001
In this NPRM, PHMSA is proposing to:
• Revise § 178.3 to indicate that a manufacturer or third-party laboratory mark may not be used when continued certification of a packaging is conducted by someone other than the original manufacturer or third-party testing laboratory, unless specifically authorized by the original manufacturer or third-party testing laboratory;
• Revise §§ 178.601(l), 178.801(l) and 178.955(i) to require that the test report must be maintained at each location where the packaging is manufactured and each location where the design qualification tests are conducted for the duration of the certification plus five years beyond the last certification, instead of the current requirement of until the package in no longer made;
• Revise the HMT by removing the listing for “Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol, NA1203,” and remove reference to gasohol in § 172.336(c)(4) and 172.336(c)(5);
• Revise § 172.101 to refer to § 173.151 to provide the limited quantity exception for Division 4.1, Self-reactive solids and Self-reactive liquids, Types B through F, consistent with international regulations;
• Allow smokeless powder classified as a Division 1.4C material to be reclassified as a Division 4.1 material to relax the regulatory requirements for these materials without compromising safety;
• Add a reference in 49 CFR 178.509(b)(1) and 178.707(c)(3) to ASTM D4976–06 Standard Specification for Polyethylene Plastics Molding and Extrusion Materials to provide a range of acceptable thicknesses in the IBC material; and
• Allow the DCM to be in locations designated by the master of the vessel besides “on or near the vessel's bridge” while the vessel is docked in a U.S. port to ensure that the DCM is readily available to communicate the presence and nature of the hazardous materials on board a vessel. This revision would provide greater flexibility by allowing the document to be maintained in either the vessel's cargo office or another location designated by the master of the vessel.
Alternatives Considered:
Our goal is to update, clarify and provide relief from certain existing regulatory requirements to promote safer transportation practices, eliminate unnecessary regulatory requirements, finalize outstanding petitions for rulemaking, and facilitate international commerce. We rejected the do-nothing alternative.
This is the selected alternative.
Hazardous materials are substances that may pose a threat to public safety or the environment during transportation because of their physical, chemical, or nuclear properties. The hazardous material regulatory system is a risk management system that is prevention oriented and focused on identifying a safety hazard and reducing the probability and quantity of a hazardous material release. Hazardous materials are categorized by hazard analysis and experience into hazard classes and packing groups. The regulations require each shipper to classify a material in accordance with these hazard classes and packing groups; the process of classifying a hazardous material is itself a form of hazard analysis. Further, the regulations require the shipper to communicate the material's hazards through use of the hazard class, packing group, and proper shipping name on the shipping paper and the use of labels on packages and placards on transport vehicles. Thus, the shipping paper, labels, and placards communicate the most significant findings of the shipper's hazard analysis. A hazardous material is assigned to one of three packing groups based upon its degree of hazard, from a high hazard, Packing Group I to a low hazard, Packing Group III. The quality, damage resistance, and performance standards of the packaging in each packing group are appropriate for the hazards of the material transported.
Under the HMR, hazardous materials are transported by aircraft, vessel, rail, and highway. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in accidents or en route incidents resulting from cargo shifts, valve failures, package failures, loading, unloading, collisions, handling problems, or deliberate sabotage. The release of hazardous materials can cause the loss of ecological resources (e.g. wildlife habitats) and the contamination of air, aquatic environments, and soil. Contamination of soil can lead to the contamination of ground water. For the most part, the adverse environmental impacts associated with releases of most hazardous materials are short term impacts that can be reduced or eliminated through prompt clean up and decontamination of the accident scene.
The proposed packaging changes would establish greater accountability for certifying packages, reduce paperwork for the affected package testing agencies, and potentially reduce package failures that result in hazardous materials incidents. The amendments that harmonize the HMR with international standards and recommendations are intended to enhance the safety of international hazardous materials transportation through an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and effective emergency response in the event of a hazardous materials incident. The proposed revision regarding where the DCM is keep when a vessel is in a U.S. port should help to expedite a response to an emergency and reduce the environmental impact to a hazardous materials spill.
PHMSA proposes to make miscellaneous amendments to the HMR in response to petitions for rulemaking. The proposed amendments are intended to update, clarify, or provide relief from certain existing regulatory requirements to promote safer transportation practices; eliminate unnecessary regulatory requirements; finalize outstanding petitions for rulemaking; facilitate international commerce; and, in general, make the requirements easier to understand and follow. While the net environmental impact of this rule will be positive, we believe there will be no significant environmental impacts associated with this proposed rule. We welcome comment on this preliminary analysis.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Under E.O. 13609, agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of the proposed rule to ensure that it does not cause unnecessary obstacles to foreign trade. In this NPRM, PHMSA is proposing to revise the HMR to align with international standards by: Removing reference to “gasohol”; providing a limited quantity exception for 4.1, Self-reactive solids and Self-reactive liquids, Types B through F; and allowing smokeless powder classified as a Division 1.4C material to be reclassified as a Division 4.1 material. These amendments are intended to enhance the safety of international hazardous materials transportation through an increased level of industry compliance, ensure the smooth flow of hazardous materials from their points of origin to their points of destination, and facilitate effective emergency response in the event of a hazardous materials incident. Accordingly, this rulemaking is consistent with E.O. 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.
Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements, Definitions and abbreviations.
Education, Hazardous materials transportation, Hazardous waste, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Training, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Maritime carriers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Incorporation by reference, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, we are proposing to amend 49 CFR Chapter I as follows:
The authority citation for Part 171 continues to read as follows:
49 U.S.C. 5101–5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101–410 section 4 (28 U.S.C. 2461 note); Pub. L. 104–134, section 31001.
1. In § 171.7, the paragraph (a)(3) table is amended as follows:
Under the entry “The American Society for Testing and Materials,” the entry “ASTM D4976–06, Standard Specification for Polyethylene Plastics Molding and Extrusion Materials” is added in appropriate numerical order.
(a) * * *
(3)
The authority citation for Part 172 continues to read as follows:
49 U.S.C. 5101–5128, 44701; 49 1.53.
2. In § 172.101, The Hazardous Materials Table is amended by removing and revising entries, in the appropriate alphabetical sequence as follows.
49 U.S.C. 5101–5128, 44701; 49 1.53.
3. In § 172.102, Special provision 16 is revised to read, as follows:
16 This description applies to smokeless powder and other solid propellants that are used as powder for small arms and have been classed as Division 1.3, 1.4 and 4.1 in accordance with § 173.56 of this subchapter.
4. In § 172.336, paragraphs (c)(4),(5), and (6) are revised, as follows:
(c) Identification Numbers are not required on:
49 U.S.C. 5101–5128, 44701; 49 1.53.
5. Section 173.171 is amended to include a new subparagraph (d) and to move current subparagraph (d) to subparagraph (e) to read as follows:
Smokeless powder for small arms which has been classed in Division 1.3 or Division 1.4 may be reclassed in Division 4.1, for domestic transportation by motor vehicle, rail car, vessel, or cargo-only aircraft, subject to the following conditions:
(a) The powder must be examined and approved for a Division 1.3 or Division 1.4 and Division 4.1 classification in accordance with §§ 173.56 and 173.58 of this part.
(b)The total quantity of smokeless powder may not exceed 45.4 kg (100 pounds) net mass in:
(1) One rail car, motor vehicle, or cargo-only aircraft; or
(2) One freight container on a vessel, not to exceed four freight containers per vessel.
(c) For Division 1.3: only combination packagings with inner packagings not exceeding 3.6 kg (8 pounds) net mass are authorized. Inner packagings must be arranged and protected so as to prevent simultaneous ignition of the contents. The complete package must be of the same type that has been examined as required in § 173.56 of this part.
(d) For Division 1.4: only combination packagings with inner packagings not exceeding the net mass that have been examined and approved as required in § 173.56 of this part are authorized. Inner packagings must be arranged and protected so as to prevent simultaneous ignition of the contents. The complete package must be of the same type that has been examined as required in § 173.56 of this part.
(e) Inside packages that have been examined and approved by the Associate Administrator may be packaged in UN 4G fiberboard boxes meeting the Packing Group I performance level, provided all inside containers are packed to prevent shifting and the net weight of smokeless powder in any one box does not exceed 7.3 kg (16 pounds).
49 U.S.C. 5101–5128, 44701; 49 1.53.
6. In § 176.30, paragraph (a) is revised to read as follows:
(a) The carrier, its agents, and any person designated for this purpose by the carrier or agents must prepare a dangerous cargo manifest, list, or stowage plan. This document may not include a material that is not subject to the requirements of the HMR or the IMDG Code (IBR, see § 171.7 of this subchapter). This document must be kept on or near the vessel's bridge, except when the vessel is docked in a United States port. When the vessel is docked in a United States port, this document may be kept in the vessel's cargo office or another location designated by the master of the vessel provided that a sign is placed beside the designated holder on or near the vessel's bridge indicating the location of the dangerous cargo manifest, list, or stowage plan. This document must always be in a location that is readily accessible to emergency response and enforcement personnel. It must contain the following information:
49 U.S.C. 5101–5128, 44701; 49 1.53.
7. In § 178.3, paragraph (a)(2) is revised to read as follows:
(a) * * *
(2) Unless otherwise specified in this part, the name and address or symbol of the packaging manufacturer or the person certifying compliance with a UN standard. Symbols, if used, must be registered with the Associate Administrator. Symbols must represent either the packaging manufacturer or the approval agency responsible for providing the most recent certification for the packaging through design certification testing or periodic retesting, as applicable. Duplicative symbols are not authorized.
8. In § 178.509, paragraph (b)(1) is revised to read as follows:
(b) * * *
(1) The packaging must be manufactured from suitable plastic material and be of adequate strength in relation to its capacity and intended use. The specification of the plastic material may not fall outside the parameters established by ASTM D4976–06 (IBR, see § 171.7 of this subchapter). No used material other than production residues or regrind from the same manufacturing process may be used unless approved by the Associate Administrator. The packaging must be adequately resistant to aging and to degradation caused either by the substance contained or by ultra-violet radiation. Any permeation of the substance contained may not constitute a danger under normal conditions of transport.
9. In § 178.601, paragraph (l) is revised to read as follows:
(l)
The test report must be maintained at each location where the packaging is manufactured, certified, and a design qualification test or periodic retest is conducted. The test report must be maintained as follows:
The test report must be made available to a user of a packaging or a representative of the Department upon request. The test report, at a minimum, must contain the following information: * * *
10. In § 178.707, paragraph (c)(3) is revised to read as follows:
(c) * * *
(3) The inner receptacle must be manufactured from plastic material of known specifications and be of a strength relative to its capacity and to the service it is required to perform use. The specification of the plastic material may not fall outside the parameters established by ASTM D4976–06 (IBR, see § 171.7 of this subchapter). In addition to conformance with the requirements of § 173.24 of this subchapter, the material must be resistant to aging and to degradation caused by ultraviolet radiation. The inner receptacle of 31HZ2 composite IBCs must consist of at least three plies of film.
11. In § 178.801, paragraph (l) is revised to read as follows:
(l)
These records must include the following information: Name and address of test facility; name and address of the person certifying the IBC; a unique test report identification; date of test report; manufacturer of the IBC; description of the IBC design type (e.g., dimensions, materials, closures, thickness, representative service equipment, etc.); maximum IBC capacity; characteristics of test contents; test descriptions and results (including drop heights, hydrostatic pressures, tear propagation length, etc.). Each test report must be signed with the name of the person conducting the test, and name of the person responsible for testing.
12. In § 178.955, paragraph (i) is revised to read as follows:
(i)
The test report must be made available to a user of a Large Packaging or a representative of the Department of Transportation upon request. The test report, at a minimum, must contain the following information: * * *
Fish and Wildlife Service, Interior.
Proposed rule; reopening of comment period and announcement of public hearing.
We, the U.S. Fish and Wildlife Service, announce the reopening of the public comment period on our October 12, 2011, proposed designation of critical habitat for the Cumberland darter
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Mary Jennings, Field Supervisor, U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office, 446 Neal Street, Cookeville, TN 38501; by telephone 931–525–4973; or by facsimile 931–528–7075. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
We are making the following changes to the proposed rule of October 12, 2011 (76 FR 63360). A change in mapping methodology resulted in a revision to the total number of river kilometers (km) for the proposed designation of yellowcheek darter critical habitat. The beginning and ending points of critical habitat, as well as the unit descriptions (as described in the proposed critical habitat rule) will remain the same. The change in mapping results from an oversight in methods used for estimating the unit lengths in the other units proposed for designation as critical habitat. This methodology uses a better technique for following the curve and meander of the river channel and results in an additional 6.6 river kilometers (rkm) (4.1 river miles (rm)) for the yellowcheek darter. In addition, a revision to the ownership of one property resulted in a change of the total number of river kilometers (miles) in private ownership, from 148 rkm (92 rm) to 162.7 rkm (101.1 rm), as well as a corresponding downward revision to other ownership types.
The following table shows the revised totals. The data in this table replaces the data provided in table 3 of the proposed rule at 76 FR 63385 (October 12, 2011).
We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for the Cumberland darter
(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(2) Specific information on:
(a) The amount and distribution of each species' habitat;
(b) What areas occupied by the species at the time of listing that contain features essential for the conservation of the species we should include in the designation and why; and
(c) What areas not occupied at the time of listing are essential to the conservation of the species and why.
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(4) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
(5) The projected and reasonably likely impacts of climate change on the critical habitat we are proposing.
(6) Whether our approach to designating critical habitat could be improved or modified in any way to
(7) Information on the extent to which the description of economic impacts in the DEA is complete and accurate.
(8) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
If you submitted comments or information on the proposed rule (76 FR 63360) during the initial comment period from October 12, 2011, to December 12, 2011, please do not resubmit them. We have incorporated them into the public record as part of the original comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods, including public testimony from the public hearing mentioned above. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and DEA, will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and laurel dace in this document. For more information on previous Federal actions concerning the five fishes, refer to the proposed designation of critical habitat published in the
On October 12, 2011, we published a proposed rule to designate critical habitat for these five fishes (76 FR 63360). We proposed to designate approximately 85 river kilometers (rkm) (53 river miles (rmi)) of critical habitat for the Cumberland darter in McCreary and Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee; 42 rkm (27 rmi) and 19 hectares (ha) (22 acres (ac)) of critical habitat for the rush darter in Etowah, Jefferson, and Winston Counties, Alabama; 157 rkm (98 rmi) of critical habitat for the yellowcheek darter in Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas; 32 rkm (20 rmi) of critical habitat for the chucky madtom in Greene County, Tennessee; and 42 rkm (26 rmi) of critical habitat for the laurel dace in Bledsoe, Rhea, and Sequatchie Counties, Tennessee. That proposal had a 60-day comment period, ending December 12, 2011. We will submit for publication in the
Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of these five fishes, the benefits of critical habitat include public awareness of the presence of the fishes and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the five fishes due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.
We have not proposed to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the
The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and laurel dace. The DEA separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the five fishes (e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for these species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the DEA, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts). For a further description of the methodology of the analysis, see Chapter 2, “Framework for the analysis,” of the DEA.
The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the five fishes over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The DEA quantifies economic impacts of the five fishes conservation efforts associated with the following categories of activity: (1) Coal mining; (2) oil and natural gas development; (3) agriculture, ranching, and silviculture; (4) recreational uses; (5) dredging, channelization, impoundments, dams, and diversions; (6) transportation; and (7) residential and commercial development.
The DEA concluded that the types of conservation efforts requested by the Service during section 7 consultation regarding the five fishes were not expected to change due to critical habitat designations. The Service believes that results of consultation under the adverse modification and jeopardy standards are likely to be similar because (1) the primary constituent elements that define critical habitat are also essential for the survival of the five fishes, (2) the five fishes are limited or severely limited in the respective ranges, and (3) numbers of individuals in the surviving populations are small or very small. In addition, although two of the proposed critical habitat units for the Cumberland darter are unoccupied, incremental impacts of the critical habitat designations will be limited for the following reasons: (1) Both units are currently occupied by the federally threatened blackside dace,
The DEA concludes that incremental impacts of critical habitat designation are limited to additional administrative costs of consultations and that indirect incremental impacts are unlikely to result from the designation of critical habitat for the five fishes. The present value of the total direct (administrative) incremental cost of critical habitat designation is $644,000 over the next 20 years assuming a seven percent discount rate, or $56,800 on an annualized basis. Water quality management activities are likely to be subject to the greatest incremental impacts at $273,000 over the next 20 years, followed by transportation at $161,000; coal mining at $79,000; oil and natural gas development at $73,700; agriculture, ranching, and silviculture at $36,100; dredging, channelization, impoundments, dams, and diversions at $10,700; and recreation at $10,000.
As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
In our October 12, 2011, proposed rule (76 FR 63360), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for the five fishes would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as coal mining; oil and natural gas development; dredging, channelization, impoundments, dams, and diversions; and transportation. In order to determine whether it is appropriate for our agency to certify that this proposed 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. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the five fishes are present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the five fishes. We anticipate that ten small entities could be affected by coal mining in a single year at a cost of $875 each, representing less than three percent of annual revenues. Two small entities could be affected by oil and natural gas development within a single year at a cost of $875 each, representing less than three percent of annual revenues. One small entity could be affected by dredging, channelization, impoundments, dams, and diversions within a single year, at a cost of $2,630, representing less than one percent of annual revenues. One small entity could be affected by transportation within a single year, at a cost of $1,750, representing less than one percent of annual revenues. Please refer to the DEA of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. We have identified 14 small entities that may be impacted by the proposed critical habitat designation. For the above reasons and based on currently available information, 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.
The primary authors of this notice are the staff members of the Tennessee Ecological Services Field Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Animal and Plant Health Inspection Service, USDA.
Notice of solicitation for membership.
We are giving notice that the Secretary is soliciting nominations for membership for this Committee to serve for 2- to 3-year staggered terms.
Consideration will be given to nominations received on or before July 9, 2012.
Completed nomination forms should be sent to the person listed under
Mrs. R.J. Cabrera, Writing, Editing, and Regulatory Coordination, VS, APHIS, 4700 River Road Unit 35, Riverdale, MD 20737–1231; (301) 851–3478, email:
The Secretary's Advisory Committee on Animal Health (SACAH or the Committee) advises the Secretary of Agriculture on strategies, policies, and programs to prevent, control, or eradicate animal diseases. The Committee considers agricultural initiatives of national scope and significance and advises on matters of public health, conservation of national resources, stability of livestock economies, livestock disease management and traceability strategies, prioritizing animal health imperatives, and other related aspects of agriculture.
The Committee Chairperson and Vice Chairperson are elected by the Committee from among its members.
Terms will expire for the current members of the Committee in August 2012. We are soliciting nominations from interested organizations and individuals. An organization may nominate individuals from within or outside its membership. Nomination forms are available on the Internet at
Office of the Under Secretary for Food Safety, USDA.
Notice of public meeting and request for comments.
The Office of the Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), is sponsoring a public meeting on June 5, 2012. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States (U.S.) positions that will be discussed at the 35th Session of the Codex Alimentarius Commission (CAC), which will be held in Rome, Italy, July 2–7, 2012. The Under Secretary for Food Safety recognizes the importance of providing interested parties the opportunity to obtain background information on the 35th Session of the CAC and to address items on the agenda.
The public meeting is scheduled for Tuesday, June 5, 2012, from 1:00–4:00 p.m.
The public meeting will be held at The Jamie L. Whitten Building, USDA, 1400 Independence Avenue SW., Room 107–A, Washington, DC 20250. Documents related to the 35th Session of the CAC will be accessible via the World Wide Web at the following address:
The U.S. Delegate to the 35th Session of the CAC invites U.S. interested parties to submit their comments electronically to the following email address:
If you wish to participate in the public meeting for the 35th Session of the CAC, by conference call, please use the call-in number and participant code listed below:
Jasmine Curtis, U.S. Codex Office, 1400 Independence Avenue SW., Room 4865, Washington, DC 20250, Telephone: (202) 690–1124, Fax: (202) 720–3157, Email:
Codex was established in 1963 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex
The following items on the agenda for the 35th Session of the CAC will be discussed during the public meeting:
• Proposed Amendments to the Procedural Manual
• Comments on Proposed Amendments to the Procedural Manual
• Draft Standards and Related Texts at Step 8 of the Procedure (including those Submitted at Step 5 with a Recommendation to Omit Steps 6 and 7 and at Step 5 of the Accelerated Procedure)
• Proposed Draft Standards and Related Texts at Step 5
• Revocation of Existing Codex Standards and Related Texts
• Amendments to the Codex Standards and Related Texts
• Proposals for the Elaboration of New Standards and Related Texts and for the Discontinuation of Work
• Matters Referred to the Commission by Codex Committees and Task Forces
• Strategic Planning of the Codex Alimentarius Commission
(a) General Implementation Status
(b) Draft Codex Strategic Plan 2014–2019
• Matters Arising from FAO and WHO
(a) FAO/WHO Project and Trust Fund for Enhanced Participation in Codex
(b) Other Matters Arising from FAO and WHO
• Financial and Budgetary Matters
• Relations between the Codex Alimentarius Commission and other International Organizations
• Election of Chairperson and Vice Chairperson
• Designation of Countries Responsible for Appointing the Chairpersons of Codex Committees and Task Forces
• Other Business
Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat prior to the meeting. Members of the public may access copies of these documents (see
At the June 5, 2012, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the U.S. Delegate for the 35th Session of the CAC (see
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
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, or audiotape) 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.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Fishery regulations do not generally affect scientific research activities conducted by a scientific research vessel. Persons planning to conduct such research are encouraged to submit a scientific research plan to ensure that the activities are considered research and not fishing. The researchers are requested to submit reports of their scientific research activity after its completion. The National Marine Fisheries Service (NMFS) may also grant exemptions from fishery regulations for educational or other activities (e.g., using non-regulation gear). The applications for these exemptions must be submitted, as well as reports on activities.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before July 23, 2012.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Kristy Long, (301) 427–8402 or
This request is for an extension of a currently approved information collection.
Reporting injury to and/or mortalities of marine mammals is mandated under Section 118 of the Marine Mammal Protection Act. This information is required to determine the impacts of commercial fishing on marine mammal populations. This information is also used to categorize commercial fisheries into Categories I, II, or III. Participants in the first two categories must be authorized to take marine mammals, while those in Category III are exempt from that requirement. All categories must report injuries or mortalities on a National Marine Fisheries Service form.
Respondents have a choice of either electronic or paper forms. Methods of submittal include email of electronic forms, and mail and facsimile transmission of paper forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
NMFS publishes for public review and comment information regarding a permit application for transshipment of Atlantic herring by Canadian vessels, submitted under provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Written comments must be received by June 7, 2012.
Written comments on this action, identified by RIN 0648–XC034, should be sent to MiAe Kim in the NMFS Office of International Affairs at 1315 East-West Highway, Silver Spring, MD 20910 (phone: (301) 427–8365, fax: (301) 713–2313, email:
MiAe Kim at (301) 427–8365 or by email at
Section 204(d) of the Magnuson-Stevens Act (16 U.S.C. 1824(d)) authorizes the Secretary of Commerce (Secretary) to issue a transshipment permit authorizing a vessel other than a vessel of the United States to engage in fishing consisting solely of transporting fish or fish products at sea from a point within the United States Exclusive Economic Zone (EEZ) or, with the concurrence of a state, within the boundaries of that state, to a point outside the United States. In addition, Public Law 104–297, section 105(e) directs the Secretary to issue section 204(d) permits for up to 14 Canadian
Section 204(d)(3)(D) of the Magnuson-Stevens Act provides that an application may not be approved until the Secretary determines that “no owner or operator of a vessel of the United States which has adequate capacity to perform the transportation for which the application is submitted has indicated * * * an interest in performing the transportation at fair and reasonable rates.” NMFS is publishing this notice as part of its effort to make such a determination with respect to the application described below.
NMFS received an application requesting authorization for five Canadian transport vessels to receive transfers of herring from United States purse seine vessels, stop seines, and weirs for the purpose of transporting the herring to Canada for processing. The transshipment operations will occur within the boundaries of the State of Maine or within the portion of the EEZ east of the line 69°30′ W longitude and within 12 nautical miles from Maine's seaward boundary.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of a Letter of Authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that NMFS has issued a four-year Letter of Authorization (LOA) to the U.S. Navy (Navy) to take marine mammals by harassment incidental to its Research, Development, Test and Evaluation (RDT&E) activities at the NAVSEA Naval Undersea Warfare Center (NUWC) Keyport Range Complex.
Effective from May 17, 2012, through April 11, 2016.
Copies of the Navy's December 22, 2011, LOA application, and the LOA are available by writing to Tammy Adams, Acting Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, by telephoning the contact listed here (see
Shane Guan, Office of Protected Resources, NMFS (301) 427–8401.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Authorization may be granted for periods of 5 years or less if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat, and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations also must include requirements pertaining to the monitoring and reporting of such taking.
Regulations governing the taking of marine mammals incidental to the U.S. Navy's training activities at the NAVSEA NUWC Keyport Range Complex were published on April 12, 2011 (76 FR 20257), and remain in effect through April 11, 2016. They are codified at 50 CFR part 218 subpart R. These regulations include mitigation, monitoring, and reporting requirements for the incidental taking of marine mammals by the Navy's RDT&E activities. For detailed information on these actions, please refer to the April 12, 2011,
On December 23, 2011, NMFS received an application from the U.S. Navy for an LOA covering the Navy's RDT&E activities at the NAVSEA NUWC Keyport Range Complex off the coast and inland waters of Washington State under the regulations issued on April 12, 2012 (76 FR 20257). The application requested authorization, for a period of four years, to take, by harassment, marine mammals incidental to proposed training activities that involve the use of low-intensity sonar and other active acoustic devices.
As described in the Navy's Annual Range Complex Exercise Report for the NAVSEA NUWC Keyport Range Complex, between April and September 2011, the RDT&E activities conducted by the Navy were within the scope and amounts contemplated by the final rule and identified by the 2011 LOA. In fact, the number of RDT&E activities was below the Navy's proposed 2011 operations. A detailed description of the Navy's 2011 RDT&E activities can be found in the exercise report posted on NMFS Web site:
In 2012 through April 2016, the Navy expects to conduct the same type and amount of RDT&E activities identified in the final rules and 2011 LOA. No modification is proposed by the Navy for its planned 2012—2016 activities under the 2011 rule.
The estimated takes for the Navy's proposed training activities are the same as those authorized in 2011. No change has been made in the estimated takes from the 2011 LOA. Summary of Monitoring, Reporting, and other requirements under the 2011 LOA
The Navy submitted its 2011 exercise report within the required timeframes and it is posted on NMFS Web site:
For non-sonar activities, the Navy conducted 4 UUV operations (9% of the total 45 allotted) and 1 fleet diver activity (2% of the total 45 allotted) at the Keyport Range Site; 2 test vehicle (thermal) activities (2% of the total of 130 allotted), 7 test vehicle (electric/chemical) activities (5% of the total 140 allotted), 2 acoustic and non-acoustic (magnetic array, oxygen) testing system activities (20% of the total 10 allotted), 3 fleet submarine activities (10% of the total 30 allotted), 7 surface launch craft activities (4% of the total 180 allotted), and 2 shore and pier deployment system activities (7% of the total 30 allotted) at Dobab Bay Range Complex (DBRC).
The Navy submitted their 2011 annual marine mammal monitoring report covering the period from May through December 2011, and the reports are posted on NMFS Web site:
For the high-frequency source event, the observers were used during a torpedo test event to demonstrate torpedo against mobile target. The active sonar levels and output were intermittent and could vary within the S6, S7, and S8 source parameters as outlined in the NMFS Final Rule (76 FR 20257).
For the mid-frequency source event, the observers were used while the Underwater Emergency Warning System (UWES) was being operated. It operates at the 700 Hz to 10.6 kHz at a source level of less than 170 dB re 1 μPa @ 1 m. The bandwidth is 18.75 Hz. This is similar to the modeled S4 source.
Vessel-based and shore-based marine mammal surveys were conducted the day before, during, and the day following the HFAS and MFAS event between November 6 and 8, 2011.
Shore-based surveys were conducted both from the DBRC site operations center at the Zelatched Point computer site on the bluff at the 75 foot elevation above the water using “Big-eye” binoculars, audible and LOFAR output from the bottom moored passive acoustic monitor and by walking along the beach and looking for hauled-out, distressed, injured, or stranded marine mammals. The beach surveys covered approximately 500 meters of shoreline along the eastern shore of Dabob Bay which is in addition to the shoreline surveyed via the vessel-based surveys. However, no marine mammals were seen using shore-based survey during the pre- and post-event surveys.
No marine mammals were seen using the beach survey during HFAS and MFAS testing events. No marine mammal vocalizations were evident using the passive acoustic monitoring (PAM) either audibly or visually from the spectrum display. The PAM was monitored continuously in real time throughout the day of the event by observers including NMMO, escort Navy observer, Range Officer and other range personnel.
For vessel-based surveys, the survey vessel left Naval Base Kitsap (NBK) Bangor in Hood Canal at approximately 0730 for both the pre and post surveys. The survey vessel was the NS–50 small range craft and it was used for pre- and post-event monitoring. The NS–50 vessel crew consisted of a Craft master, marine mammal lookout, and a Navy Marine Mammal Observer (NMMO). All three participated in looking for marine mammals. One observer was dedicated to the port side of the vessel and the other observer was responsible for the starboard side. The observers were also responsible for recording the global positioning system (GPS) coordinates of all sightings with a handheld GPS unit and logging the information onto datasheets. Marine mammal observations began immediately after departing NBK Bangor and continued throughout the transit to and from Dabob Bay. Observers used naked eye and 7 x 50 magnification binoculars with reticles to scan the area from dead ahead to dead astern. The survey transects were run from the south to the north on the west side of Dabob Bay and the return was north to south on the east side of Dabob Bay. This route covered the perimeter of Dabob Bay including the area used in the November 7 testing. It is possible to see from shore to shore in the Dabob Bay instrumented range. In addition to surveying over-water, the vessel based monitors also scanned the shoreline for hauled-out, distressed, injured, or stranded marine mammals. Effort and environmental information was collected when the observers began effort each day and as significant weather changes occurred.
In total, 38 sightings of marine mammals totaling 84 individuals were recorded during the two days of pre- and post-event vessel-based surveys. At least 2 species were seen: Harbor seals, California sea lions, and 2 unidentified marine mammals. A harbor seal haul-out with 16 to 26 individuals was identified on the west side of Dabob Bay just north of Pulali Point. This location has been previously identified in Jeffries
There were 25 sightings on the pre-survey day and 13 sightings on the post-survey day. When comparing the number of animals seen between the 2 days, the pre-survey day identified 45 individuals and the post-survey day identified 39 individuals. When looking at animals identified to species, four sea lions and 39 harbor seals were identified during the pre-survey. Two sea lions and 37 harbor seals were identified during the post-survey. No marine mammal active sounds were detected using the PAM.
There were two sightings approximately 2 hours prior to the HFAS event. One sighting was an unidentified sea lion seen feeding. The second sighting was one minute later in approximately the same location, but this sighting was identified as a harbor seal with 1 to 2 individuals possible. The sighting cues (flipper verses head) allowed the observer to distinguish the
In general, adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) if monitoring efforts should be modified if new information suggests that such modifications are appropriate. All of the 5-year rules and LOAs issued to the Navy include an adaptive management component, which includes an annual meeting between NMFS and the Navy. NMFS and the Navy conducted an adaptive management meeting in October, 2011, which representatives from the Marine Mammal Commission participated in, wherein we reviewed the Navy monitoring results through August 1, 2011, discussed other Navy research and development efforts, and discussed other new information that could potentially inform decisions regarding Navy mitigation and monitoring.
For the 2012—2016 LOA, the Navy requested to make the following changes concerning marine mammal monitoring protocols. Specifically, the Navy requested to change the condition in 7(c)(i)(B) of the Monitoring and Reporting section of the LOA to address the Navy's activity monitoring logistics and to ensure that visual monitoring is conducted in suitable conditions. The language would be changed from
“For specified events, shore-based and vessel surveys shall be used 1 day prior to and 1–2 days post activity.”
“For specified events, shore-based and vessel surveys shall be used within 36 hours prior to and post activity during daylight hours.”
After reviewing the Navy's request, NMFS agrees with the Navy that this minor modification should be implemented in the renewed LOA.
Since there are no changes in the Navy's proposed RDT&E activities at the NAVSEA NUWC Keyport Range Complex, NMFS' determination that the Navy's Keyport Range Complex RDT&E activities will have no more than a negligible impact on the affected species or stocks of marine mammals in the action area, as described in the original regulations, is still valid. There is no subsistence use of marine mammals that could potentially be impacted by the Navy's RDT&E activities at Keyport Range Complex. Further, the level of taking authorized in May 2012 through April 2016 for the Navy's Keyport Range Complex RDT&E activities is consistent with our previous findings made for the total taking allowed under the Keyport Range Complex regulations. Accordingly, NMFS has issued a four-year LOA for Navy's RDT&E activities conducted at the NAVSEA NUWC Keyport Range Complex from May 17, 2012, through April 11, 2016.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice and request for comments.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. DoD invites comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The Office of Management and Budget (OMB) has approved this information collection for use through November 30, 2012. DoD proposes that OMB extend its approval for use for three additional years beyond the current expiration date.
DoD will consider all comments received by July 23, 2012.
You may submit comments, identified by OMB Control Number 0704–0246, using any of the following methods:
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Comments received generally will be posted without change to
Ms. Meredith Murphy, 571–372–6098. The information collection requirements addressed in this notice are available on the World Wide Web at:
This requirement provides for the collection of information related to providing Government property to contractors; contractor use and management of Government property; and reporting, redistribution, and disposal of contractor inventory.
a.
b. DFARS 245.302(1)(i) requires contractors to request and obtain contracting officer approval before using Government property on work for foreign governments and international organizations.
c. DFARS 245.604–3 concerns the sale of surplus Government property. Under paragraph (b), a contractor may be directed by the plant clearance officer to issue informal invitations for bid. Under paragraph (d), a contractor may be authorized by the plant clearance officer to purchase or retain Government property at less than cost if the plant clearance officer determines this method is essential for expeditious plant clearance. When using the latter method, the contractor must submit to the plant clearance officer the informal bids received and sufficient information to ensure that the Government's interests will be adequately protected.
d. DFARS subpart 245.70, Plant Clearance Forms, prescribes the requirements for the use of the following forms:
(1)
(2)
(3)
(4)
(i) Downgrade useable property to scrap.
(ii) Abandonment or destruction.
(iii) Noncompetitive sale of surplus property.
(iv) Other disposal actions.
(5)
e. In addition, the following DD forms are prescribed in the clause at DFARS 252.245–7004, Reporting, Reutilization, and Disposal (AUG 2011):
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(2)
The purpose of the National Professional Development Program, which is administered by the Office of English Language Acquisition, is to support pre-service education and professional development activities intended to improve instruction for English Learners (ELs).
Interested persons are invited to submit comments on or before June 25, 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 Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the
The purpose of this study is to examine how a sample of grantees is implementing their grants with respect to four areas: (1) The content and structure of the education they provide to current and prospective teachers of English Learners; (2) the nature of changes they attempt to make to the full teacher education program at their institutions; (3) the efforts grantees make to institutionalize their projects so that they can be sustained after the grant ends; and (4) their efforts to track former program participants. Information gathered on these four topics will be used to identify issues that could be investigated in a larger, more representative study.
This study will consist of 15 purposively-selected current grantees and nine purposively-selected former grantees. The case study sites will be selected from among the grantees in the 2007 cohort (“current grantees”) and those in the 2002 and 2004 cohorts (“former grantees”), and will provide information on some of the pre-service and in-service teacher training models and approaches that current grantees are using, as well as strategies that former grantees have used to track newly-minted teachers after program completion and to plan for continuing program services after the federal grant period.
The study will collect data from the current grantees through site visits and from the former grantees through telephone interviews.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice and Request for Comments.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions 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 respondents, including through the use of automated collection techniques or other forms of information technology.
Comments regarding this proposed information collection must be filed by July 23, 2012. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to Jamie Vernon or by fax at 202–586–9260, or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Jamie Vernon,
This information collection request contains: (1)
Section 13(b) of the Federal Energy Administration Act of 1974 (FEA Act), as amended, codified at 15 U.S.C. 772(b) and Section 1301 of the Energy Independence and Security Act of 2007 (EISA), as amended, codified at 42 U.S.C. 17381.
Take notice that on May 14, 2012, Transcontinental Gas Pipe Line Company, LLC (Transco), P.O. Box
Specifically, Transco requests authorization to amend the authorized operation of its new 15,000 horsepower (HP) electric motor-driven compressor installed at Transco's Compressor Station 125 in Walton County. Transco currently has authority to operate the 15,000 HP electric compressor unit at a maximum of 9,000 HP. Transco now seeks authorization to operate said compressor unit at above 9,000 HP provided that the total horsepower used at Compressor Station 125 does not exceed the station's total certificated horsepower of 49,800 horsepower. Transco states that it would use automated station control systems to limit the total horsepower at Compressor Station 125. Transco also states that this would allow for more efficient operation, increase operational reliability and flexibility, and accommodate schedule maintenance.
Any questions regarding this application should be directed to Bill Hammons, Team Leader, Rates and Regulatory, P.O. Box 1396, Houston, Texas 77251, at (713) 215–2130.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the North Main Loop Line Abandonment Project (Project) involving abandonment, construction and operation of facilities by Southern Natural Gas Company, L.L.C. (SNG) in Calhoun and Cleburne Counties, Alabama. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Please note that the scoping period will close on June 16, 2012. Further details on how to submit written comments are in the Public Participation section of this notice.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, and you are contacted by a representative of SNG about the acquisition of an easement to construct, operate, and maintain the proposed facilities, please note that the company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
SNG provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?”. This fact sheet addresses a number of typically-asked questions, including the
SNG proposes to abandon a portion of its approximately 70 year old North Main Loop Line in Calhoun and Cleburne Counties, Alabama. The pipeline developed wrinkle bends which caused a pipeline failure in 2009. According to SNG, its project would eliminate a portion of the wrinkle bends on SNG's North Main Loop Line and enhance its integrity. The replacement section will continue to provide safe reliable natural gas supplies to the eastern Alabama region.
The Project would consist of the following:
• Abandonment in-place of approximately 19.5 miles of 24-inch-diameter natural gas pipeline, beginning at the DeArmanville Compressor Station milepost (MP) 380.7, continuing through the Heflin Gate and ending at the Rome-Calhoun Gate (MP 400.2);
• remove the existing pig launcher at the existing Chevron Road Launcher (MP 380.7) and install it at the existing Rome-Calhoun Gate site;
• abandon in-place the following:
○ a side valve assembly connecting the North Main Loop Line to SNG's White Plains Line at approximate MP 385.6; and
○ a 24-inch main line valve assembly at SNG's Heflin gate.
• Cut and cap the 24-inch-diameter North Main Loop Line at 13 road crossings;
• Install 2.2 miles of 3-inch-diameter natural gas pipeline between MP 389.8 and MP 392.0 (B–Line);
• Repair or remove two exposed segments of 24-inch-diameter North Main Loop Line at MPs 392.2 and 393.3; and
• Remove a pipeline drip assembly at approximate MP 382.5 and relocate a launcher currently located at the DeArmanville Compressor Station (approximate MP 380.7) to SNG's Rome-Calhoun Gate (approximate MP 400.2).
The general location of the project facilities is shown in Appendix 1.
Construction of the proposed facilities and abandonment activities would disturb about 36.1 acres of land. Following construction, SNG would maintain about 10 acres for permanent operation of the Project's B–Line facilities; the remaining acreage would be restored and revert to former uses. Following completion of the project, SNG will continue to operate the other pipelines in the right-of-way of the abandoned 19.5 miles of pipeline. Therefore, SNG will not relinquish its rights under its existing easement agreements.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Air quality and noise;
• Endangered and threatened species; and
• Public safety.
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section of this notice.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so
For your convenience, there are three methods which you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP12–112–000) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502–8258 or
(1) You can file your comments electronically using the eComment feature on the Commission's Web site (
(2) You can file your comments electronically using the eFiling feature on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If the EA is published for distribution, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (Appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are available on the Commission's Web site at:
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208–FERC, or on the FERC Web site at
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
On May 1, 2012, the FFP Project 109, LLC filed an application for a preliminary permit under section 4(f) of the Federal Power Act proposing to study the feasibility of the proposed Mississippi River Lock and Dam #24 Project No. 14402, to be located at the existing Mississippi River Lock and Dam No. 24 on the Mississippi River, near the City of Clarksville in Pike County, Missouri and Calhoun County, Illinois. The Mississippi River Lock and Dam No. 24 is owned by the United States government and operated by the United States Army Corps of Engineers.
The proposed project would consist of: (1) Fifteen new 60-foot by 80-foot reinforced concrete powerhouses, each containing two 500-kilowatt bulb turbine-generators, having a total combined generating capacity of 15 megawatts; (2) fifteen existing submersible tainter gates; (3) a new 40-foot by 35-foot substation; (4) a new 10-foot by 80-foot intake structure; (5) a new 2.8-mile-long, 34.5-kilovolt transmission line; and (6) appurtenant facilities. The project would have an estimated annual generation of 60 gigawatt-hours.
Deadline for filing comments, motions to intervene, and competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application can be viewed or printed on the “eLibrary” link of Commission's Web site at
Take notice that on May 9, 2012, Southern Natural Gas Company (Southern), 569 Brookwood Village, Suite 501, Birmingham, Alabama 35209, filed a prior notice application pursuant to sections 157.205 and 157.210 of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act (NGA), and Southern's blanket certificate issued in Docket No. CP82–406–000, to make certain modifications at its Thomaston Compressor Station in order to increase incremental capacity on its South Main Pipeline System by 8 million cubic feet per day, all as more fully set forth in the application, which is open to the public for inspection. The filing may also be viewed on the Web at
Any questions regarding this application should be directed to Pamela R. Donaldson, Principal Regulatory Analyst, Southern Natural Gas Company, 569 Brookwood Village, Suite 501, Birmingham, Alabama 35209 or telephone (205) 325–3739 or by email
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission's staff may attend the following meetings related to the transmission planning activities of the Midwest Independent Transmission System Operator, Inc. (MISO):
Planning Advisory Committee—May 30, 2012.
RECB Task Force—May 31, 2012.
Order 1000 Right of First Refusal (ROFR) Task Team—June 1, 2012.
MISO Headquarters, 720 City Center Drive, Carmel, IN 46032.
Further information may be found at
The discussions at the meeting described above may address matters at issue in the following proceedings:
For more information, contact Christopher Miller, Office of Energy Markets Regulation, Federal Energy Regulatory Commission at (317) 249–5936 or
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before July 23, 2012.
Submit your comments, identified by Docket ID No. EPA–HQ–RCRA–2011–0280, by one of the following methods:
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Peggy Vyas, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 703–308–5477; fax number: 703–308–8433; email address:
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–RCRA–2011–0280, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
In addition, EPA is requesting comments on some proposed changes to the Hazardous Waste Report form and instructions designed to clarify long-standing points of confusion. Some of these changes are scheduled for the 2011 booklet, some for the 2013 booklet. The proposed changes can be found in a draft Hazardous Waste Report From and Instructions booklet in the docket for this notice.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The proposed changes to the 2013 booklet include: (1) Some management method codes will be consolidated in order to ease reporting, (2) the waste minimization codes will be revised in order to assist filers with reporting their waste minimization activities, and (3) editorial changes will be made to the description of some source codes in order to improve clarity for filers.
This amendment will not affect the Notification booklet or the Part A Permit Application booklet, which are both part of this ICR.
The annual public reporting and recordkeeping burden for the Notification of Regulated Waste Activity is estimated to average 2 hours per response for the initial notification, and 1 hour per response for any subsequent notifications.
The annual public reporting and recordkeeping burden for the Part A Permit Application is estimated to average 25 hours per response for an initial application and 13 hours per response for a revised application.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before July 23, 2012.
Submit your comments, identified by Docket ID No. EPA–HQ–OA–2012–0033 by one of the following methods:
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Dr. Nathalie Simon, National Center for Environmental Economics, Office of Policy, (1809T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202–566–2347; fax number: 202–566–2363; email address:
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–OA–2012–0033, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
Docket ID No. EPA–HQ–OA–2012–0033.
The Chesapeake Bay watershed encompasses 64,000 square miles in parts of six states and the District of Columbia. While efforts have been underway to restore the Bay for more than 25 years, and significant progress has been made over that period, the TMDLs are necessary to continue progress toward the goal of a healthy Bay. As might be expected, a program on this scale is likely to be expensive. A 2004 report on implementation of the “tributary strategies” proposed under an earlier plan for Bay restoration
EPA's National Center for Environmental Economics (NCEE) is undertaking a benefits analysis of improvements in Bay water quality under the TMDLs, as well as of ancillary benefits that might arise from terrestrial measures taken to improve water quality. As part of this analysis, NCEE plans to conduct a broad-based inquiry into benefits using a state-of-the-art stated preference survey. Benefits from the TMDLs for the Chesapeake will accrue to those who live on or near the Bay and its tributaries, as well as to those who live further away and may never visit the Bay but have a general concern for the environment. The latter category of benefits is typically called “non-use values” and estimating the monetary value can only be achieved through a stated preference survey.
In addition, a stated preference survey is able to estimate “use values,” those benefits that accrue to individuals who choose to live on or near the Bay or recreate in the watershed. Stated preference surveys allow the analyst to define a specific object of choice or suite of choices such that benefits are defined in as precise a manner as feasible. While use benefits of water quality improvements in the Chesapeake Bay watershed will also be estimated through other revealed preference methods, the stated preference survey allows for careful specification of the choice scenarios and will complement estimates found using other methods.
Participation in the survey will be voluntary and the identity of the participants will be kept confidential.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice.
EPA is giving notice of a public meeting to negotiate an enforceable consent agreement (ECA) to collect certain environmental monitoring data on octamethylcyclotetrasiloxane (D4) and decamethylcyclopentasiloxane (D5). A private organization has submitted a proposed ECA to EPA. EPA has evaluated the proposal and believes that proceeding with the negotiation of a consent agreement is an efficient means of developing the data, and now solicits additional persons with an interest in participating in the negotiations to notify EPA and announces a public meeting to initiate negotiations.
The meeting to initiate ECA negotiations for D4 and D5 environmental monitoring will be held on Wednesday, June 27, 2012 from 10 a.m. to 1 p.m.
While this meeting is open to the public, you must notify EPA in writing on or before June 25, 2012, if you wish to be considered an “interested party” and participate in the ECA negotiations for D4 and D5 environmental monitoring.
To request accommodation of a disability, please contact the technical person listed under
Your written notification that you wish to participate in the ECA negotiation must be submitted to the technical person listed under
The public meeting to initiate negotiations on an ECA for D4 and D5 will be held at the Environmental Protection Agency, EPA East, Room 1117A, 1201 Constitution Ave. NW., Washington, DC 20460.
This action is directed to the public in general, and may be of particular interest to manufacturers, importers, processors, exporters, distributors, and users of D4 and D5. Because other entities may also be interested, the agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the completion of the ECA or the availability of the proposal for this effort, consult the technical contact listed under
Octamethylcyclotetrasiloxane (D4) (CASR No. 566–67–2) and decamethylcyclopentasiloxane (D5) (CASR No. 541–02–6) are high production volume chemicals having a wide variety of industrial, commercial, and consumer uses. D4 and D5 are highly persistent in sediment and highly bioaccumulative in benthic and aquatic species. Data show D4 to be toxic to aquatic and sediment-dwelling species. EPA has concerns regarding the environmental effects of D4 and D5. Environmental monitoring could help develop a better understanding of the potential effects of these chemicals in the environment.
D4 is an intermediate for silicone copolymers. It is used commercially and has consumer uses in polishes, sanitation, soaps, detergents, adhesives, sealants, and rubber and plastic products. D4 is also used in processing applications such as coupling, blocking or release agents, and synthesis reagents.
D5 is commonly used in personal care products, paints, coatings, paper and textiles, defoamers, release agents, surfactants in cleaning products, and adhesives. It is used as a processing solvent in chemical, resin, and synthetic rubber manufacture and as a chemical intermediate, lubricant, and dry cleaning agent.
Further information on D4 and D5, including existing test data and a product stewardship program developed by Dow Corning, can be found in the public docket for this notice.
EPA is soliciting interested parties to monitor or participate in testing negotiations for an ECA concerning D4 and D5 environmental monitoring. The Silicone Environmental Health and Safety Council (SEHSC), the submitter of the ECA proposal for the environmental monitoring of D4 and D5, is already considered an interested party and does not need to respond to this notice.
In accordance with 40 CFR 790.22(b), any other person who notifies EPA in writing on or before June 25, 2012 of his/her interest in participating in the negotiations will be given the status of “interested party” and will be permitted to participate in the negotiation process (other members of the public may attend the negotiation meeting(s), but will not be permitted to participate in the negotiation). Persons who wish to be designated an “interested party” must submit written notice to the technical contact person listed under
The procedural rule for ECAs (40 CFR 790.22, Procedures for developing consent agreements) contains provisions to ensure that the public is afforded a chance to participate in ECA negotiations, and that the views of interested parties are taken into account during the ECA negotiation process. All negotiating meetings for the development of this ECA will be open to the public and minutes of each meeting will be prepared by EPA and placed in the docket for this notice.
EPA will advise interested parties and the public of meeting dates and make available meeting minutes, the proposed consent agreement, background documents, and other materials distributed at negotiation meetings. The negotiation time schedule will be established at the first negotiation meeting and will not exceed a period of 6 months from the initial meeting. If an ECA is not final within 6 months from the initial meeting and EPA does not choose to extend the negotiation time period, negotiations will be terminated and any unmet data needs may be pursued via a test rule promulgated under TSCA section 4.
EPA will circulate a draft of the ECA to all interested parties if EPA concludes that such draft is likely to achieve final agreement, and 30 days will be provided for submitting comments or written objections. EPA will enter into consent agreements only where there is a consensus among the agency, one or more manufacturers and/or processors who agree to conduct or sponsor the testing, and all other interested parties who identify themselves in accordance with 40 CFR 790.22(b)(2). Details on the procedures for developing consent agreements can be found in 40 CFR 790.22. Details on what an ECA must include can be found in 40 CFR 790.60.
Meeting minutes, the proposed consent agreement(s), background documents, and other materials distributed at negotiation meetings will be placed in an Internet-accessible public docket identified by docket number EPA–HQ–OPPT–2012–0209, available online at
1. SEHSC. Environmental Monitoring Proposal for Certain Cyclic Siloxanes—D4 and D5. Power Point Presentation. March 1, 2012.
2. USEPA Testing Consent Order for Octamethylcyclotetrasiloxane. Final Rule. 54 FR 818, January 10, 1989.
3. SEHSC. Memorandum from Karluss Thomas. Executive Director, SEHSC to Maria J. Doa, Director, Chemical Control Division, Office of Pollution Prevention and Toxics, U.S. Environmental Protection Agency. Re: Proposed Terms of Environmental Monitoring Proposal for Certain Cyclic Siloxanes. March 1, 2012.
4. SEHSC. Attachment 1. Proposed Terms of Enforceable Consent Agreement for D4 and D5 Environmental Monitoring Program. March 1, 2012.
5. SEHSC Attachment 2. Draft Project Charter: Proposed 5–year monitoring plan for cyclic volatile methylsiloxane (cVMS) materials in surface sediment and aquatic biota of the Inner Oslo Fiord, Norway. March 7, 2012.
6. USEPA. Product Stewardship Program for Six Siloxanes Conducted Under a Memorandum of Understanding (MOU) Signed by EPA and the Dow Corning Corporation; Notice of Receipt and Availability of the MOU Data. 74 FR 38013, July 30, 2009.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Notification of public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), Public Law 92–463, the U.S. Environmental Protection Agency (EPA) hereby provides notice that the National Environmental Justice Advisory Council (NEJAC) will meet on the dates and times described below. All meetings are open to the public. Members of the public are encouraged to provide comments relevant to the specific issues being considered by the NEJAC. For additional information about registering for public comment, please see
The NEJAC meeting will convene Tuesday, July 24, 2012, from 9:00 a.m. until 3:45 p.m.; and will reconvene on Wednesday, July 25, 2012, from 9:00 a.m. to 5:00 p.m. All noted times are Eastern Time.
One public comment period relevant to the specific issues being considered by the NEJAC (see
The NEJAC meeting will be held at the EPA Potomac Yard Conference Center, located at 2777 Crystal Drive, Crystal City, Virginia.
Questions concerning the meeting should be directed to Mr. Aaron Bell, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., (MC2201A), Washington, DC 20460; by telephone at 202–564–1044, via email at
The Charter of the NEJAC states that the advisory committee shall provide independent advice to the EPA Administrator about areas that may include, among other things, “advice about broad, cross-cutting issues related to environmental justice, including environment-related strategic, scientific, technological, regulatory, and economic issues related to environmental justice.”
The meeting shall be used to receive comments, and discuss and provide recommendations regarding these primary areas: (1) EPA's Plan EJ 2014; (2) NEJAC's Science And Research Work Group; (3) NEJAC's Indigenous Peoples Work Group and; (4) NEJAC's Permitting Work Group.
A.
B.
Environmental Protection Agency.
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the Piqua Hospital Site (Site ID Number B5RB) in Piqua, Ohio with the following settling parties: Hospdela LLC and Dr. Enrique De La Piedra. The settlement requires the settling parties to pay $20,000 to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling parties pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a). For 30 days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to
Comments must be submitted on or before June 25, 2012.
The proposed settlement is available for public inspection at 77 West Jackson Boulevard, 7th floor Superfund File Room, Chicago, Illinois. A copy of the proposed settlement may be obtained from Deborah Carlson, Associate Regional Counsel, C–14J, 77 West Jackson Boulevard, Chicago, Illinois 60604, telephone: 312–353–6121. Comments should reference the Piqua Hospital Site in Piqua, Ohio and EPA Docket No. V–W–09–C–922 and should be addressed to Deborah Carlson, Associate Regional Counsel, C–14J, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Deborah Carlson, Associate Regional Counsel, C–14J, 77 West Jackson Boulevard, Chicago, Illinois 60604, telephone 312–353–6121
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601,
Federal Communications Commission.
Notice.
The Enforcement Bureau (the “Bureau”) gives notice of Mr. Jonathan M. Slaughter's suspension from the schools and libraries universal service support mechanism (or “E-Rate Program”). Additionally, the Bureau gives notice that debarment proceedings are commencing against him. Mr. Slaughter, or any person who has an existing contract with or intends to contract with him to provide or receive services in matters arising out of activities associated with or related to the schools and libraries support, may respond by filing an opposition request, supported by documentation.
Opposition requests must be received by 30 days from the receipt of the suspension letter or June 25, 2012, whichever comes first. The Bureau will decide any opposition request for reversal or modification of suspension or debarment within 90 days of its receipt of such requests.
Joy Ragsdale, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4–A236, 445 12th Street SW., Washington, DC 20554. Joy Ragsdale may be contacted by phone at (202) 418–1697 or email at
The Bureau has suspension and debarment authority pursuant to 47 CFR 54.8 and 47 CFR 0.111(a)(14). Suspension will help to ensure that the party to be suspended cannot continue to benefit from the schools and libraries mechanism pending resolution of the debarment process. Attached is the suspension letter, DA 12–452, which was mailed to Mr. Slaughter and released on March 22, 2012. The complete text of the notice of suspension and initiation of debarment proceedings is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portal II, 445 12th Street SW., Room CY–A257, Washington, DC 20554, In addition, the complete text is available on the FCC's Web site at
Dear Mr. Slaughter:
The Federal Communications Commission (Commission or FCC) has received notice of your conviction for mail fraud in violation of 18 U.S.C 1341 in connection with your participation in the federal schools and libraries universal service support mechanism (E-Rate program).
The Commission has established procedures to prevent persons who have “defrauded the government or engaged in similar acts through activities associated with or related to the [E-Rate program]” from receiving the benefits associated with that program.
On September 29, 2011, you pled guilty to committing fraudulent activities associated with the E-Rate program while you were owner and president of E-Rate Consulting Services, LLC (ECS) in Montgomery, Alabama.
On January 6, 2012, the United States District Court for the Middle District of Alabama sentenced you to serve 51 months in prison followed by three years of supervised release.
Pursuant to § 54.8(b) of the Commission's rules,
In accordance with the Commission's suspension and debarment rules, you may contest this suspension or the scope of this suspension by filing arguments, with any relevant documents, within thirty (30) calendar days of receipt of this letter or its publication in the
In addition to requiring your immediate suspension from the E-Rate program, your conviction is cause for debarment as defined in § 54.8(c) of the Commission's rules.
As with the suspension process, you may contest the proposed debarment or the scope of the proposed debarment by filing arguments and any relevant documentation within thirty (30) calendar days of receipt of this letter or its publication in the
If and when your debarment becomes effective, you will be prohibited from participating in activities associated with or related to the E-Rate program for three years from the date of debarment.
Please direct any response, if sent by messenger or hand delivery, to Marlene H. Dortch, Secretary, Federal Communications Commission, 445 12th Street SW., Room TW–A325, Washington, DC 20554, to the attention of Joy M. Ragsdale, Attorney Advisor, Investigations and Hearings Division, Enforcement Bureau, Room 4–A236, with a copy to Theresa Z. Cavanaugh, Chief, Investigations and Hearings Division, Enforcement Bureau, Room 4–C322, Federal Communications Commission. All messenger or hand delivery filings must be submitted without envelopes.
If you have any questions, please contact Ms. Ragsdale via U.S. postal mail, email, or by telephone at (202) 418–1697. You may contact me at (202) 418–1553 or at the email address noted above if Ms. Ragsdale is unavailable.
Federal Maritime Commission.
Notice of Inquiry.
The Federal Maritime Commission (“FMC” or “Commission”) is issuing this Notice of Inquiry (“NOI”) to solicit public comment on informal requests the Commission has received from some large U.S. exporters and intermediaries to develop and release container freight indices for U.S. agricultural exports. The Commission is seeking written comments and information from U.S. exporters, intermediaries, ocean carriers, and any other interested parties on (1) Whether and to what extent the shipping public would find targeted U.S. export rate indices beneficial; (2) whether the Commission should extract rate information from service contracts or whether suitable alternatives exist; (3) the positive and negative influences on the export commodities and ocean transportation marketplaces of the greater transparency such indices might provide; and (4) whether, these indices, if developed, should be commodity specific for different prescribed routes or whether more broadly based indices would meet U.S. exporters' needs.
Responses are due on or before July 9, 2012.
Submit comments to: Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Room 1046, Washington, DC 20573–0001. Or email non-confidential comments to:
Sandra L. Kusumoto, Director, Bureau of Trade Analysis, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573–0001, Telephone: (202) 523–5796, Email:
Published containerized freight rate indices have proliferated in the past several years. In chronological order of their initial year of publication, these include the China Containerized Freight Index (CCFI, 1998), Drewry Freight Insight Index (2006), Shanghai Containerized Freight Index (SCFI, 2009), Container Trade Statistics Index (CTS Index, 2009), the Transpacific Stabilization Agreement Index (TSA Index, 2011), and the Drewry-Cleartrade World Container Index (WCI, 2011). Each of these indices includes one or more U.S. trade routes, but most of them focus only on the U.S. import leg. The two exceptions are the CTS Index, which issues a lagged monthly index of U.S.-Europe rates benchmarked to 2008, and the WCI, which last year began providing coverage of container rates for freight shipped from Los Angeles to Shanghai and Rotterdam among the 11 route-specific indices it provides weekly. Most of these indices were developed in the wake of recent rate volatility in the major international liner shipping markets. In principle, the availability of credible rate benchmarks allows shippers and ocean carriers an opportunity to manage freight rate risk.
Last fall the Commission issued a proposed rule for freight index-based service contracts to provide flexibility and certainty to ocean carriers and their customers. The final rule went into effect in March and makes clear that service contracts can reference freight indices or other outside terms, so long as they are readily available to the contracting parties and the Commission.
Beginning this year, the Commission has received informal requests from several large U.S. agricultural shippers, intermediaries, and derivative brokers to consider issuing an index based on service contracts filed with the Commission because they have not found the available indices for U.S. export routes useful for the level of market intelligence they need, for adjusting rates in contracts, or for hedging freight rate risk. These large U.S. exporters, as well as the Agricultural Marketing Service at the U.S. Department of Agriculture (USDA), have expressed an interest in having access to reliable container freight rate indices that are specific to U.S. agricultural export commodities. They assert that the U.S. export market likely would be quick to adopt index-based contracting because many exporters already are accustomed to hedging risk exposure in the bulk shipping markets and because freight rates represent a much larger portion of the delivered value of their products, which means even quite small freight rate movements can have a large impact on the delivered value. These agricultural exporters also point out that they have excellent visibility into bulk shipping rates through the Baltic Dry Indexes, but have no similar visibility into container shipping rates for exports.
Some U.S. agricultural exporters have told Commission staff that a properly constructed index would help them increase exports by allowing them to use contracting and hedging strategies to increase the certainty of their transportation costs. These U.S. agricultural exporters have said that ocean carriers generally are reluctant to offer them service contract rates that are valid for more than 30 to 60 days, and that this inability to lock in a rate hinders their ability to sell agricultural exports for delivery more than 60 days into the future out of fear that changing transportation costs will make the sale uneconomic. Releasing an appropriately designed index could provide a market-based approach to this problem by allowing shippers to protect themselves through contracting and hedging strategies in private markets. U.S. agricultural exporters and derivative brokers also have told the Commission that the lack of a reliable container rate index for export grain shipments in particular disadvantages container shipping relative to bulk shipping because of the superior pricing transparency afforded by the Baltic Dry Indexes.
In response to the exporter requests, Commission staff inquired whether and why the indices currently published were not meeting U.S. shippers' exporting needs. These agricultural exporters raised concerns about the present export indices' transparency in the way the underlying data are collected. They also claimed there is poor correlation between the general rate trends represented in these indices and the actual rates U.S. exporters incur for the ocean transportation of specific agricultural products.
Other parties, on the other hand, have raised questions or concerns about the concept of the Commission sampling service contract data for commodity-specific freight rate indices. For example, they have asked: (1) Whether commodity-specific indices can be aggregated in a manner to protect confidential individual service contract rates; (2) whether release of such indices would further or contravene the purposes of the Shipping Act; (3) whether release of indices would benefit U.S. exporters or instead advantage their foreign competitors; (4) whether any benefits to exporters would be sufficient to justify the commitment of Commission resources to developing and releasing the indices; and (5) whether issuance of such indices is better left to private index publishers.
The Commission is interested in evaluating whether more targeted indices utilizing information in the service contracts filed with the Commission could materially assist U.S. agricultural exporters while furthering the Commission's governing statutes and the Administration's goal of promoting U.S. exports. One of the stated purposes of the Shipping Act is to “promote the growth and development of United States exports through competitive and efficient ocean transportation and by placing a greater reliance on the marketplace,” 46 U.S.C. 40101(4) and, in January 2010, the President launched a National Export Initiative with the goal of doubling U.S. exports over the next five years. Later, on March 11, 2010, the President issued Executive Order No. 13534 and has directed the use of every available federal resource in support of that effort.
Following the requests from large agricultural exporters and others, Commission staff has conducted some initial testing of the technical feasibility of using service contract data filed with the Commission to develop a container rate index for a few targeted major U.S. export commodities such as grains, cotton, hay, and frozen meat, and has assessed the resource implications. To fully protect the identity of individual shippers and ocean carriers, data extracted from service contracts would be aggregated at an appropriate level prior to making public an average rate or index. The Commission wishes to stress that this concept is still in its formative stages and wants to hear the views of all parties before deciding whether or not to produce it.
At this time, the Commission is seeking written comments and information from U.S. exporters, intermediaries, ocean carriers, and any other interested parties on whether it would be useful, advisable, and appropriate for the Commission to publish a few targeted export indices based on an aggregated sampling of service contract data. The Commission is particularly interested in: (a) Understanding whether and to what extent the shipping public would find U.S. export rate indices beneficial; (b) assessing whether it should extract rate information from service contracts or whether suitable alternatives exist; (c) determining the positive and negative
1. Is there anything that prevents private index developers and publishers from developing indices of the kind being sought by U.S. agricultural exporters?
2. Has your company used or considered using any existing freight rate index to adjust rates in its export service contracts or to hedge freight rate risk? If so, what is your company's view on the products it used or considered?
3. Would it be appropriate to use service contract data filed confidentially with the Commission to develop indices of the kind being sought by U.S. agricultural exporters (assuming the data is aggregated so as to protect the identity of individual shippers and ocean carriers before being released to the public in the form of an average rate or index)?
4. Should these indices be optimized for use in service contracts, for use in financial hedging instruments, or both?
5. What kind of competitive issues would the public release of a broadly based or route and commodity specific rate index create for U.S. export shippers or ocean carriers?
6. If developed using service contract data filed with the Commission, should a U.S. export rate index be route and commodity specific or should it be more broadly based? If the former type of rate index would be more useful to your business, explain what type of commodity, specific route, publication frequency, or other index-related factors are most needed.
7. Should either or both parties to a service contract have the option of not having their contract rates incorporated into an index?
8. If made available by the Commission, how would an export rate index affect your company's export sales?
9. If made available by the Commission, how likely is your company to use an export rate index in its service contracts to adjust rates?
10. Has your company or related subsidiary traded in freight derivatives? If so, describe that experience and the outcomes obtained?
11. If a U.S. export rate index is made available by the Commission, how likely is your company to trade in a derivatives market based on that index?
12. What impact would trading in a freight derivative market based on a U.S. export rate index have on the physical U.S. export container market?
Responses to the NOI will help the Commission decide whether it would be useful, advisable, and appropriate for the Commission to publish a few targeted export freight rate indices based on an aggregated sampling of service contract data filed with the Commission, and if so, what type of indices would best serve the needs of U.S. exporters.
To promote maximum participation, the NOI questions will be made available via the
The Commission anticipates that most filed NOI comments will be made publicly available. The Commission believes that public availability of NOI comments is to be encouraged because it could improve public awareness of the benefits and drawbacks of establishing rate benchmarks for major U.S. exports. Nevertheless, some commenting parties may wish to include commercially sensitive information as relevant or necessary in their responses by way of explaining their liner shipping experiences or detailing their responses in practical terms. To help assure that all potential respondents will provide usefully detailed information in their submissions, the Commission will provide confidential treatment to the extent allowed by law for those submissions, or parts of submissions, for which the parties request confidentiality.
By the Commission.
In accordance with § 271.7(d) of its rules regarding availability of information (12 CFR part 271), there is set forth below the domestic policy directive issued by the Federal Open Market Committee at its meeting held on April 24–15, 2012.
The Federal Open Market Committee seeks monetary and financial conditions that will foster price stability and promote sustainable growth in output. To further its long-run objectives, the Committee seeks conditions in reserve markets consistent with federal funds trading in a range from 0 to
Office of Acquisition Policy, GSA.
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement regarding preparation, submission, and negotiation of subcontracting plans. A notice was published in the
This information collection will ensure that small and small disadvantaged business concerns are afforded the maximum practicable opportunity to participate as subcontractors in construction, repair, and alteration or lease contracts. Preparation, submission, and negotiation of subcontracting plans requires for all negotiated solicitations having an anticipated award value over $650,000 ($1,500,000 for construction), submission of a subcontracting plan with other than small business concerns when a negotiated acquisition meets all four of the following conditions.
1. When the contracting officer anticipates receiving individual subcontracting plans (not commercial plans).
2. When the award is based on trade-offs among cost or price and technical and/or management factors under FAR 15.101–1.
3. The acquisition is not a commercial item acquisition.
4. The acquisition offers more than minimal subcontracting opportunities.
Public comments are particularly invited on: Whether this collection of information is necessary and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected.
Submit comments on or before: June 25, 2012.
Ms. Kathy Rifkin, Procurement Analyst, General Services Acquisition Policy Division, GSA, (816) 823–2170 or email
Submit comments identified by Information Collection 3090–0252, Preparation, Submission and Negotiation of Subcontracting Plans by any of the following methods:
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The GSAR provision at 552.219–72 requires a contractor (except small business concerns) to submit a subcontracting plan when a negotiated acquisition including construction, repair, and alterations and lease contracts (except those solicitations using simplified procedures) meets all four of the following conditions.
1. When the contracting officer anticipates receiving individual subcontracting plans (not commercial plans).
2. When award is based on trade-offs among cost or price and technical and/or management factors under FAR 15.101–1.
3. The acquisition is not a commercial item acquisition.
4. The acquisition offers more than minimal subcontracting opportunities.
Office of the Chief Acquisition Officer, General Services Administration (GSA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve a previously approved Information collection concerning the GSA Mentor-Protégé Program, General Service Administration Acquisition Manual (GSAM). A notice was published in the
Public comments are particularly invited on: Whether this collection of information is necessary; whether it will have practical utility; whether our
Submit comments on or before June 25, 2012.
Submit comments identified by Information Collection 3090–0286, GSA Mentor-Protégé Program by any of the following methods:
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Ms. Kathy Rifkin, Procurement Analyst, General Services Acquisition Policy Division, GSA (816) 823–2170 or via email at
The GSA Mentor-Protégé Program is designed to encourage GSA prime contractors to assist small businesses, small disadvantaged businesses, women-owned small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, and HUBZone small businesses in enhancing their capabilities to perform GSA contracts and subcontracts, foster the establishment of long-term business relationships between these small business entities and GSA prime contractors, and increase the overall number of small business entities that receive GSA contract and subcontract awards.
Office of Facilities Management and Program Services, Public Building Service (PBS), U.S. General Services Administration (GSA).
Notice of request for comments regarding an existing OMB information collection.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve a previously approved information collection requirement regarding the collection of personal data for background investigations for child care workers accessing GSA owned and leased controlled facilities.
Public comments are particularly invited on: Whether this collection of information is necessary and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected.
Submit comments on or before: July 23, 2012.
Mr. Reginald Johnson, Program Analyst, Building Security and Policy Division, GSA, by telephone at (202) 208–7909 or email at
Submit comments identified by Information Collection 3090–0287, Background Investigations for Child Care Workers by any of the following methods:
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Homeland Security Presidential Directive (HSPD) 12 “Policy for a Common Identification Standard for Federal Employees and Contractors” requires the implementation of a governmentwide standard for secure and reliable forms of identification for Federal employees and contractors. OMB's implementing instructions require all contract employees requiring routine access to federally controlled facilities for greater than six (6) months to receive a background investigation. The minimum background investigation is the National Agency Check with Written Inquiries or NACI.
However, there is no requirement in the law or HSPD–12 that requires child care employees to be subject to the NACI since employees of child care providers are neither government employees nor government contractors. Instead, the child care providers are
According to GSA policy, child care workers (as described above) will need to submit the following:
1. An original signed copy of a
2. Two sets of fingerprints on FBI Fingerprint Cards, for FD–258.
This is not a request to collect new information, this is a request to change the form that is currently being used to collect this information. The new GSA forms will be less of a public burden. This information is presently being collected on either the old Federal Protective Service 176 Form or the SF85P.
The original request to review and approve the new information collection requirement regarding the collection of personal data for background check investigations was for both temporary contractors and child care workers accessing GSA owned and leased controlled facilities. However, through discussions with OMB a more streamlined will be developed for conducting background checks on temporary contractors. GSA is therefore pulling the request for review and approval of the collection of personal data for background check investigations of temporary contractors, form GSA 176T, presented in the
The meeting announced below concerns Research Grants for Preventing Violence and Violence Related Injury (R01), Funding Opportunity Announcements (FOA) CE12–002, and Identifying Modifiable Protective Factors for Intimate Partner Violence or Sexual Violence Perpetration (R01), FOA CE12–003.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Member Conflict Review, Program Announcement (PA) 07–318, and Centers of Excellence to Promote a Healthier Workforce Supplement, Request for Applications (RFA) OH 11–001 initial review.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
After identity is authenticated, secure accounts will be created for authorized users to view data for their respective applications.
Estimated Total Annual Burden Hours: 58.8.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments 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) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by June 25, 2012.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202–395–7285, or emailed to
Juanmanuel Vilela, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–7651,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act (Affordable Care Act) (Pub. L. 111–148). The Affordable Care Act contains a subtitle called the Biologics Price Competition and Innovation Act of 2009 (BPCI Act) which amends the Public Health Service Act (PHS Act) and establishes an abbreviated licensure pathway for biological products shown to be biosimilar to, or interchangeable with, an FDA-licensed biological reference product. (See sections 7001 through 7003 of the Affordable Care Act.)
Section 351(k) of the PHS Act (42 U.S.C. 262(k)), added by the BPCI Act,
In estimating the information collection burden for 351(k) applications, FDA has reviewed the collection of information regarding the general licensing provisions for biologics license applications under section 351(a) of the PHS Act to OMB (approved under OMB control number 0910–0338). For the information collection burden for 351(a) applications, FDA described § 601.2(a) (21 CFR 601.2(a)) as requiring a manufacturer of a biological product to submit an application on forms prescribed for such purpose with accompanying data and information including certain labeling information to FDA for approval to market a product in interstate commerce. FDA also added in the burden estimate the container and package labeling requirements provided under §§ 610.60 through 610.65 (21 CFR 610.60 through 610.65). The estimated hours per response for § 601.2, and §§ 610.60 through 610.65, were 860 hours.
In addition, in submitting a 351(a) application, an applicant completes the Form FDA 356h “Application to Market a New Drug, Biologic, or an Antibiotic Drug for Human Use.” The application form serves primarily as a checklist for firms to gather and submit certain information to FDA. The checklist helps to ensure that the application is complete and contains all the necessary information, so that delays due to lack of information may be eliminated. The form provides key information to FDA for efficient handling and distribution to the appropriate staff for review. The estimated burden hours for biological product submissions using FDA Form 356h are included under the applicable requirements approved under OMB control number 0910–0338.
FDA intends for an applicant to submit a 351(k) application following Form FDA 356h, modifying the information submitted to support the information required under section 351(k) of the BPCI Act. To submit an application seeking licensure of a proposed biosimilar product under section 351(k)(2)(A)(i) and (k)(2)(A)(iii), FDA believes that the estimated burden hours would be approximately the same as noted under OMB control number 0910–0338 for a 351(a) application—860 hours. The burden estimates for seeking licensure of a proposed biosimilar product that meets the standards for interchangeability under section 351(k)(2)(B) and (k)(4) would also be 860 hours. Until we gain more experience with biosimilar applications, FDA believes this estimate is appropriate for 351(k) applications because to determine biosimilarity or interchangeability of a proposed 351(k) product, the application and the information submitted is expected to be comparably complex and technically demanding as a proposed 351(a) application. FDA may determine, in its discretion, that an element required under a 351(k) application to be unnecessary to support licensure of a biosimilar or interchangeable product. In those cases, the number of hours per response may be less than the hours estimated.
A summary of the collection of information requirements in the submission of a 351(k) application as described under the BPCI Act follows:
Section 351(k)(2)(A)(i) requires manufactures of 351(k) products to submit an application for FDA review and licensure before marketing a biosimilar product. An application submitted under this section shall include information demonstrating that:
• The biological product is biosimilar to a reference product based upon data derived from analytical studies, animal studies (including toxicity) and a clinical study or studies (including immunogenicity and pharmacokinetics or pharmacodynamics). The Secretary of Health and Human Services (the Secretary) may determine that any of these elements is unnecessary.
• The biological product and reference product utilize the same mechanism or mechanisms of action for the condition or conditions of use prescribed, recommended, or suggested in the proposed labeling, but only to the extent the mechanism or mechanisms of action are known for the reference product.
• The condition or conditions of use prescribed, recommended, or suggested in the labeling proposed for the biological product have been previously approved for the reference product.
• The route of administration, the dosage form, and the strength of the biological product are the same as those of the reference product.
• The facility in which the biological product is manufactured, processed, packed, or held meets standards designed to assure that the biological product continues to be safe, pure, and potent.
Section 351(k)(2)(A)(iii) requires the application to include publicly-available information regarding the Secretary's previous determination that the reference product is safe, pure, and potent. The application may include any additional information in support of the application, including publicly-available information with respect to the reference product or another biological product.
Under section 351(k)(2)(B) and (k)(4), a manufacturer may include information demonstrating that the biological product meets the standards for interchangeability either in the application described in this document to show biosimilarity, or in a supplement to such an application. The information submitted to meet the standard for interchangeability must show that: (1) The biological product is biosimilar to the reference product and can be expected to produce the same
In addition to the collection of information regarding the submission of a 351(k) application for a proposed biosimilar or interchangeable biological product, section 351(l) of the BPCI Act establishes procedures for identifying and resolving patent disputes involving applications submitted under section 351(k) of the PHS Act. The burden estimates for the patent provisions under section 351(l)(6)(C) of the BPCI Act are included in table 1 of this document and are based on the estimated number of 351(k) biosimilar respondents. Based on similar reporting requirements, FDA estimates this notification will take 2 hours. A summary of the collection of information requirements under 351(l)(6)(C) follows:
Not later than 30 days after a complaint from the reference product sponsor is served to a 351(k) applicant in an action for patent infringement described under 351(l)(6), section 351(l)(6)(C) requires that the 351(k) applicant provide the Secretary with notice and a copy of such complaint. The Secretary shall publish in the
FDA has not received any 351(k) applications to date. Under table 1 of this document, the estimated number of respondents submitting 351(k) applications is based on the estimated annual number of manufacturers that would submit the required information to FDA and the estimated annual number of 351(k) submissions FDA would receive. In making this estimate, FDA has taken into account, among other things, the expiration dates of patents that relate to potential reference products, and general market interest in biological products that could be candidates for 351(k) applications.
On November 2 and 3, 2010, FDA held a public hearing and established a public docket to obtain input on specific issues and challenges associated with the implementation of the BPCI Act. (See Docket No. FDA–2010–N–0477.) Based in part on this input, FDA announced the availability of three draft guidances describing FDA's current interpretation of certain statutory requirements added by the BPCI Act as well as quality and analytical issues, demonstrating biosimilarity, and implementation policy issues. These draft guidances are: “Biosimilars: Questions and Answers Regarding Implementation of the Biologics Price Competition and Innovation Act of 2009,” “Quality Considerations in Demonstrating Biosimilarity to a Reference Protein Product,” and “Scientific Considerations in Demonstrating Biosimilarity to a Reference Product.” The
In the
FDA estimates the burden of this collection of information as follows:
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 23, 2012.
Submit electronic comments on the collection of information to
Daniel Gittleson, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–5156,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 520(g) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360j(g)) establishes the statutory authority to collect information regarding investigational devices, and establishes rules under which new medical devices may be tested using human subjects in a clinical setting. The Food and Drug Administration Modernization Act of 1997 (Pub. L. 105–115) added section 520(g)(6) to the FD&C Act and permitted changes to be made to either the investigational device or to the clinical protocol without FDA approval of an investigational device exemption (IDE) supplement. An IDE allows a device, which would otherwise be subject to provisions of the FD&C Act, such as premarket notification or premarket approval, to be used in investigations involving human subjects in which the safety and effectiveness of the device is being studied. The purpose of part 812 (21 CFR part 812) is to encourage, to the extent consistent with the protection of public health and safety and with ethical standards, the discovery and development of useful devices intended for human use. The IDE regulation is designed to encourage the development of useful medical devices and allow investigators the maximum freedom possible, without jeopardizing the health and safety of the public or violating ethical standards. To do this, the regulation provides for different levels of regulatory control depending on the level of potential risk the investigational device presents to human subjects. Investigations of significant risk devices, ones that present a potential for serious harm to the rights, safety, or welfare of human subjects, are subject to the full requirements of the IDE regulation. Nonsignificant risk device investigations, i.e., devices that do not present a potential for serious harm, are subject to the reduced burden of the abbreviated requirements. The regulation also includes provisions for treatment IDEs. The purpose of these provisions is to facilitate the availability, as early in the device development process as possible, of promising new devices to patients with life-threatening or serious conditions for which no comparable or satisfactory alternative therapy is available. Section 812.10 permits the sponsor of the IDE to request a waiver to all of the requirements of part 812. This information is needed for FDA to determine if waiver of the requirements of part 812 will impact the public's health and safety. Sections 812.20, 812.25, and 812.27 consist of the information necessary to file an IDE application with FDA. The submission of an IDE application to FDA is required only for significant risk device investigations.
Section 812.20 lists the data requirements for the original IDE application; § 812.25 lists the contents of the investigational plan; and § 812.27 lists the data relating to previous investigations or testing. The information in the original IDE application is evaluated by the Center for Devices and Radiological Health to determine whether the proposed investigation will reasonably protect the public health and safety, and for FDA to make a determination to approve the IDE.
Upon approval of an IDE application by FDA, a sponsor must submit certain requests and reports. Under § 812.35, a sponsor who wishes to make a change in the investigation that affects the scientific soundness of the study or the rights, safety, or welfare of the subjects, is required to submit a request for the change to FDA. Section 812.150 requires a sponsor to submit reports to FDA.
FDA estimates the burden of this collection of information as follows:
Section 812.140 lists the recordkeeping requirements for investigators and sponsors. FDA requires this information for tracking and oversight purposes. Investigators are required to maintain records, including correspondence and reports concerning the study, records of receipt, use or disposition of devices, records of each subject's case history and exposure to the device, informed consent documentation, study protocol, and documentation of any deviation from the protocol. Sponsors are required to maintain records including correspondence and reports concerning the study, records of shipment and disposition, signed investigator agreements, adverse device effects information, and, for a nonsignificant risk device study, an explanation of the nonsignificant risk determination, records of device name and intended use, study objectives, investigator information, investigational review board information, and statement on the extent that good manufacturing practices will be followed.
For a nonsignificant risk device investigation, the investigator's and sponsor's recordkeeping and reporting burden is reduced. Pertinent records on the study must be maintained by both parties, and reports are made to sponsors and institutional review boards (IRBs). Reports are made to FDA only in certain circumstances, e.g., recall of the device, the occurrence of unanticipated adverse effects, and as a consequence of certain IRB actions.
The estimate of the burden is based on the number of IDEs received in the last 3 years.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by June 25, 2012.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202–395–7285, or emailed to
Juanmanuel Vilela, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–7651,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Human Drug Products Marketed Without an Approved Application (OMB Control Number 0910–0636)—Extension.
Respondents to this collection of information are manufacturers, packers, and distributors whose name (under section 502(b)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act)) appears on the label of a nonprescription drug marketed in the United States.
FDA is requesting public comment on estimates of annual submissions from these respondents, as required by Public Law 109–462 and described in the guidance. This guidance document discusses what should be included in a serious adverse drug event report submitted under section 760(b)(1) of the FD&C Act, including follow-up reports under 760(c)(2) of the FD&C Act, and how to submit these reports. The estimates for annual reporting burden and recordkeeping are based on FDA's knowledge of adverse drug experience reports historically submitted per year for prescription drug products and for nonprescription drug products marketed under an approved application, including knowledge about the time needed to prepare the reports and to maintain records.
FDA receives approximately 2,500 serious adverse event reports for nonprescription drug products marketed under approved applications, which comprise approximately 20 percent of the overall nonprescription drug market. Based on this experience, we estimate between 10,000 and 15,000 (i.e., 12,500) total annual responses for nonprescription drugs marketed without an approved application.
In the
FDA estimates the burden of this collection of information as follows:
Section 760(e) of the FD&C Act also requires that responsible persons maintain records of nonprescription adverse event reports, whether or not the event is serious, for a period of 6 years. The guidance recommends that responsible persons maintain records of efforts to obtain the minimum data elements for a report of a serious adverse drug event and any followup reports. Although the guidance does not provide recommendations on recordkeeping activities generally under section 760(e) of the FD&C Act, FDA is providing an estimate for the burden of this collection. Historically, serious adverse event reports comprise approximately two-thirds and nonserious adverse event reports comprise approximately one-third of the total number of postmarketing adverse event reports associated with drugs and biologic therapeutics (except vaccines) received by FDA. Based on this generalization, FDA estimates the total annual records to be approximately 20,000 records per year. FDA estimates that it takes 5 hours to maintain each record and the recordkeeping burden as follows:
Therefore, the estimated annual reporting burden for this information is 25,000 hours and the estimated annual recordkeeping burden is 100,000 hours.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Lee L. Zwanziger at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Minh Doan at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Food and Drug Administration, HHS.
Notice of meeting.
The Food and Drug Administration (FDA) is announcing the following meeting: “Requirements for Importing Food and Drug Administration Regulated Products Into the United States.” The topics to be discussed are FDA regulations with respect to importing pharmaceutical products, medical devices, food products, as well as technology which applies to brokers and forwarders.
If you need special accommodations due to a disability, please contact Lisa Misevicz at least 7 days in advance.
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA) is announcing a public workshop entitled: “Use of Computer Simulation of the United States Blood Supply in Support of Planning for Emergency Preparedness and Medical Countermeasures.” The purpose of this public workshop is to provide stakeholders a forum for discussion of data needs and to obtain feedback on possible modeling scenarios to explore emergency supply situations should a pandemic or epidemic disease or other events that could adversely impact the blood supply in the United States occur.
The public workshop will include presentations and panel discussions with experts from academia, regulated industry, government, and other stakeholders.
If you need special accommodations due to a disability, please contact Mark Walderhaug (see
The public workshop presentations and panel discussions will: (1) Discuss
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 National Cancer Institute (NCI), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
The annual number of responses is estimated to be 109,000 and the annualized cost to the respondents is estimated at $93,185. There are no Capital Costs, Operating Costs, and/or Maintenance Costs to report.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Mary Anne Bright, Associate Director, Office of Public Information and Resource Management, Office of Communications and Education, National Cancer Institute, 6116 Executive Blvd., Room 3023, MSC 8322, Bethesda, MD 20892–8322 or call 301–594–9048 or email your request, including your address, to:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Cancer Institute Director's Consumer Liaison Group.
The meeting will be open to the public, 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.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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 National Advisory Eye Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or 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 and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any person interested 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.
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.
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.
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.
William Cruce, Ph.D., Scientific Review Officer, National Institute on Aging, Scientific Review Branch, Gateway Building 2C–212, 7201 Wisconsin Ave., Bethesda, MD 20814, 301–402–7704,
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.
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.
30-Day Notice of Information Collection Under Review: Form I–589, Application for Asylum and for Withholding of Removal.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until June 25, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Coordination Division, Office of Policy and Strategy, 20 Massachusetts Avenue NW., Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202–272–8518 or via email at
The address listed in this notice should only be used to submit comments concerning the extension of this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies 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 submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Coordination Division, Office of Policy and Strategy, 20 Massachusetts Avenue NW., Washington, DC 20529, telephone number 202–272–1470.
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM Montana State Office, Billings, Montana, on June 25, 2012.
Protests of the survey must be filed before June 25, 2012 to be considered.
Protests of the survey should be sent to the Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669.
Marvin Montoya, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669, telephone (406) 896–5124 or (406) 896–5009,
This survey was executed at the request of the Regional Director, Rocky Mountain Region, Bureau of Indian Affairs, and was necessary to determine the boundaries of Tribal Trust lands. The lands we surveyed are:
The plat, in one sheet, representing the dependent resurvey of the south boundary of the Fort Belknap Indian Reservation, through Township 26 North, Range 24 East, Principal
We will place a copy of the plat, in one sheet, and related field notes we described in the open files. They will be available to the public as a matter of information. If the BLM receives a protest against this survey, as shown on this plat, in one sheet, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file this plat, in one sheet, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals.
43 U.S.C. Chap. 3.
Bureau of Land Management, Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM), Farmington District Resource Advisory Council (RAC), will meet as indicated below.
The meeting dates are June 13–14, 2012, at the Taos Field Office, 226 Cruz Alta Road, Taos, NM. A field trip is planned for June 13 at 8:30 a.m. The meeting is scheduled Thursday, June 14, from 9 a.m. to 4:30 p.m. The public comment period will begin at 3:30 p.m. The public may send written comments to the RAC at the above address. All RAC meetings are open to the public. Depending on the number of individuals wishing to comment and time available, the time for individual oral comments may be limited.
Bill Papich, coordinator for the BLM Farmington District RAC, at the BLM Farmington District Office, 6251 College Boulevard, Farmington, NM 87402, or phone Mr. Papich at 505–564–7620. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8229 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.
The 10-member RAC advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in New Mexico.
Planned agenda items include discussion of a proposed transportation plan for the Taos Field Office and a planned wild horse gathering by the Farmington Field Office. There also will be discussion of the Glade Run Recreation Area management plan amendment to the Farmington Field Office Resource Management Plan.
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) proposes to offer one parcel of public land totaling approximately 5 acres in the Las Vegas Valley by non-competitive direct sale to the entity. The purpose of the direct sale is to dispose of certain reservations, conditions, and limitations contained in Patent No. 27–82–0020. The authority for the sale is Section 203 of the Federal Land Policy and Management Act of 1976 (FLPMA).
Interested parties may submit written comments to the BLM regarding the proposed sale on or before July 9, 2012.
Mail written comments to the BLM Field Manager, 4701 N. Torrey Pines Drive, Las Vegas, NV 89130, or email to:
Jill Pickren, Realty Specialist, 702–515–5194. 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.
The parcel proposed for sale is located north of Eastern Avenue and west of Channel 10 Drive in Las Vegas, Nevada. The following described land was patented to The Roman Catholic Bishop of Reno on August 6, 1982:
The area described contains 5 acres, more or less, in Clark County.
This proposed non-competitive direct sale is in conformance with the BLM Las Vegas Resource Management Plan (RMP) and the Record of Decision (ROD) approved on October 5, 1998, as clarified by a Plan Maintenance Record (PMR–Las Vegas–2012–01) dated March 2, 2012.
The lands are being offered for sale using direct sale procedures pursuant to 43 CFR 2711.3–3. This parcel of public land is proposed for sale at no less than the appraised fair market value (FMV) of $435,000, dated May 26, 2011, as determined by the authorized officer. The appraisal report is available for public review at the BLM Las Vegas Field Office (LVFO) at the address above.
This parcel of public land may be sold under the FLPMA Section 203 where, as a result of land use planning required under the FLPMA Section 202, the Secretary determines that the sale of this parcel meets the following disposal criteria: (1) Such tract is difficult and uneconomic to manage because of its location or other characteristics—such as the subject's history of use, current level of development, and is not suitable for management by another Federal department or agency. The Roman Catholic Bishop of Las Vegas has asked to purchase the reversionary interest in the parcel in order to obtain a fee simple title for The Roman Catholic Bishop of Las Vegas to then sell the parcel without conditions of reversion. A Certificate of Amendment of the Articles of Incorporation was filed with Secretary of State of the State of Nevada on June 29, 1995, changing the name from The Roman Catholic Bishop of Reno to The Roman Catholic Bishop of Las Vegas. The Roman Catholic Bishop of Las Vegas requested to relinquish the parcel
Under 43 CFR 2711.3–1 (c) and (d), a deposit of not less than 20 percent of the FMV must be submitted 30 days from the date of the sale offer by 4:30 p.m. Pacific Time at the LVFO. Payment must be made in the form of a cashier's check, certified check, U.S. postal money order, or bank draft, and made payable in U.S. dollars to the “Department of the Interior—Bureau of Land Management.” Personal or company checks will not be accepted. Upon receipt of the 20 percent bid deposit, the BLM will send the purchaser a sale offer letter with detailed information for full payment. Failure to meet conditions for this sale will void the sale and any monies received will be forfeited.
Pursuant to 43 CFR 2711.2, qualified conveyees must be (1) United States citizens 18 years of age or older; (2) A corporation subject to the laws of any State or of the United States; (3) An entity including, but not limited to, associations or partnerships capable of acquiring and owning real property, or interests therein, under the laws of the State of Nevada; or (4) A State, State instrumentality, or political subdivision authorized to hold real property. Failure to submit the above requested documents to the BLM within 30 days from receipt of the sale offer letter shall result in cancellation of the sale and forfeiture of the bid deposit.
No contractual, or other rights against the United States, may accrue until the BLM officially accepts the offer to purchase and the full purchase price is paid.
Upon conveyance of the reversionary interest, the identified parcel of public lands would no longer be subject to the reservations, conditions, and limitations in Patent No. 27–82–0020 (unless otherwise noted below). Rather, the following terms, conditions and reservations would apply, and will appear as reservations to the United States on the conveyance document for this parcel.
(1) All minerals for the parcel will be reserved in accordance with 43 CFR 2740.0–6 (c) and Patent No. 27–82–0020.
(2) A right-of-way is reserved for ditches and canals constructed by authority of the United States under the Act of August 30, 1890 (43 U.S.C. 945); and
(3) All mineral deposits in the land so patented are reserved to the United States, or persons authorized by the United States, along with the right to prospect for, mine, and remove such deposits from the same, as well as any necessary access or egress, under applicable law and regulations to be established by the Secretary of the Interior.
In addition, the conveyance will be subject to the following terms and conditions:
1. An easement 50 feet in width along the east boundary for road and public utilities purposes to ensure continued ingress and egress to adjacent lands;
2. An easement 30 feet in width along the west boundary for road and public utilities purposes to ensure continued ingress and egress to adjacent lands;
3. The parcel is subject to valid existing rights;
4. The parcel is subject to reservations for road, public utilities and flood control purposes, both existing and proposed, in accordance with the local governing entities' transportation plan; and
5. By accepting this patent, the patentee agrees to indemnify, defend and hold the United States harmless from any costs, damages, claims, causes of action, penalties, fines, liabilities, and judgments of any kind or nature arising from the past, present, and future acts or omissions of the patentee, its employees, agents, contractors, or lessees, or any third-party, arising out of, or in connection with, the patentee's use, occupancy, or operations on the patented real property. This indemnification and hold harmless agreement includes, but is not limited to, acts and omissions of the patentee, its employees, agents, contractors, or lessees, or third party arising out of or in connection with the use and/or occupancy of the patented real property resulting in: (a) Violations of Federal, State, and local laws and regulations applicable to the real property; (b) judgments, claims or demands of any kind assessed against the United States; (c) costs, expenses, damages of any kind incurred by the United States; (d) releases or threatened releases on, into or under land, property and other interests of the United States of solid or hazardous wastes and/or hazardous substances, as defined by Federal or State environmental laws; (e) other activities by which solid or hazardous substances or wastes, as defined by Federal and State environmental laws were generated, released, stored, used or otherwise disposed of on the patented real property, and any cleanup response, remedial action, or other actions related in any manner to said solid or hazardous substances or wastes; or (f) natural resource damages as defined by Federal and State law. This covenant shall be construed as running with the patented real property, and may be enforced by the United States in a court of competent jurisdiction.
Unless other satisfactory arrangements are approved in advance by a BLM authorized officer, conveyance of title shall be through the use of escrow. Designation of the escrow agent shall be through mutual agreement between the BLM and the prospective patentee, and costs of escrow shall be borne by the prospective patentee.
Requests for all escrow instructions must be received by the LVFO prior to 30 days before the prospective patentee's scheduled closing date. There are no exceptions.
No contractual or other rights against the United States may accrue until the BLM officially accepts the offer to purchase, and the full price is submitted by the 180th day following the sale.
All name changes and supporting documentation must be received at the LVFO 30 days from the date on the sale offer letter by 4:30 p.m., Pacific Time. Name changes will not be accepted after that date. To submit a name change, the purchaser must complete a Certificate of Eligibility in writing and submit it to the LVFO. Certificates of Eligibility are available at the LVFO and the BLM Web site at:
The remainder of the full price for the parcel must be paid prior to the expiration of the 180th day following the BLM's acceptance of the 20 percent deposit. Payment must be submitted in the form of a certified check, U.S. postal money order, bank draft, or cashier's check made payable in U.S. dollars to the “Department of the Interior—Bureau of Land Management.” Personal or company checks will not be accepted.
Arrangements for electronic fund transfer to the BLM for payment of the balance due must be made a minimum of 2 weeks prior to the payment date. Failure to pay the full bid price prior to
The BLM will not sign any documents related to 1031 Exchange transactions. The timing for completion of the exchange is the bidder's responsibility in accordance with Internal Revenue Service's regulations. The BLM is not a party to any 1031 Exchange.
All sales are made in accordance with and subject to the governing provisions of law and applicable regulations.
In accordance with 43 CFR 2711.3–1(f), the BLM may accept or reject any or all offers to purchase, or withdraw any parcel of land or interest therein from sale, if, in the opinion of a BLM authorized officer, consummation of the sale would be inconsistent with any law, or for other reasons.
In order to determine the FMV, certain assumptions may have been made concerning the attributes and limitations of the lands and potential effects of local regulations and policies on potential future land uses. Through publication of this notice, the BLM advises that these assumptions may not be endorsed or approved by units of local government. It is the buyer's responsibility to be aware of all applicable Federal, State, and local government laws, regulations, and policies that may affect the subject lands, including any required dedication of lands for public uses. It is also the buyer's responsibility to be aware of existing or prospective uses of nearby properties. When conveyed out of Federal ownership, the lands will be subject to any applicable laws, regulations, and policies of the applicable local government for proposed future uses. It will be the responsibility of the buyer to be aware through due diligence of those laws, regulations, and policies, and to seek any required local approvals for future uses. The buyer should also make themselves aware of any Federal or State law or regulation that may impact the future use of the property. Any land lacking access from a public road or highway will be conveyed as such, and future access acquisition will be the responsibility of the buyer.
A map delineating the individual proposed sale parcel is available for public review at the LVFO, which is located at the address above. The FMV for the sale parcel will be available for review 60 days prior to the sale date. Information concerning the sale, appraisal, reservations, procedures and conditions, Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), and other environmental documents will be available for review at the LVFO, or by calling 702–515–5194 and asking to speak to Jill Pickren, Realty Specialist. You may contact the LVFO from 7:30 a.m. to 4:30 p.m., Monday through Friday (except Federal holidays).
Only written comments will be considered properly filed.
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.
Any adverse comments regarding the proposed sale will be reviewed by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, this realty action will become the final determination of the Department of the Interior.
43 CFR 2711.1–2(d).
Bureau of Land Management, Interior.
Notice of availability.
The Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD)/Approved Resource Management Plan (RMP) for the Taos Field Office located in northern New Mexico. The New Mexico State Director signed the ROD on May 24, 2012, which constitutes the final decision of the BLM and makes the Approved RMP effective immediately.
Copies of the ROD/Approved RMP are available upon request from the Field Manager, Taos Field Office, Bureau of Land Management, 226 Cruz Alta Road, Taos, New Mexico, or via the Internet at:
Brad Higdon, Planning and Environmental Coordinator, Taos Field Office, telephone 575–751–4725; address 226 Cruz Alta Road, Taos, New Mexico 87571; email
The Approved RMP provides broad-scale direction for the management of about 595,100 acres of BLM surface estate and 1.5 million acres of mineral estate administered by the BLM Taos Field Office within Colfax, Harding, Los Alamos, Mora, Rio Arriba, San Miguel, Santa Fe, Taos, and Union counties and is prepared in accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Lands Policy and Management Act of 1976, as amended. The Approved RMP, which replaces a land use plan completed in 1988, provides updated management decisions regarding land tenure adjustments, land use authorizations, mineral resources, recreation, renewable energy, special designations, transportation and access, wilderness characteristics, visual resources, and other resources and uses.
The Approved RMP was prepared in partnership with cooperating agencies, Ohkay Owingeh Pueblo, New Mexico Department of Game and Fish, and Santa Fe County, as well as in collaboration with multiple tribes, agencies, organizations, and other members of the public, largely through the public participation provided under NEPA. The Draft RMP/Environmental Impact Statement (EIS) was released for a 90-day public review and comment period on June 10, 2010, and identified Alternative A as the BLM's preferred alternative. Based on input received from cooperating agencies and the public, the preferred alternative was modified where appropriate and then
The BLM received 27 letters protesting decisions contained in the Proposed RMP/Final EIS, including decisions regarding mining opportunities in the San Pedro Mountains and Ojo Caliente Area of Critical Environmental Concern (ACEC), management of the La Cienega ACEC, land tenure adjustment opportunities in El Palacio, travel management, and protective management of the Old Spanish National Historic Trail. While the Governor's consistency review provided input from the Governor that the BLM considered in its decision making, the review did not identify any specific inconsistency with State plans, policies, or programs. As a result of protests receive during the protest period, the BLM made one change to the Approved RMP by removing language which unnecessarily limited the designation of off-highway vehicle routes within the Santa Fe ACEC, described in detail in the ROD/Approved RMP. Editorial and formatting modifications were also made to the Approved RMP.
The ROD/Approved RMP does not contain implementation-level decisions that may be appealed under the provisions of 43 CFR part 4, subpart E. Rather, all decisions are considered planning-level decisions and were subject to protest under 43 CFR 1610.5–2 at the time the Proposed RMP/Final EIS was made available to the public.
40 CFR 1506.6; 43 CFR 1610.2(g), 1610.5–1(b).
Bureau of Land Management, Interior.
Notice.
Pursuant to Bureau of Land Management (BLM) regulations, the BLM is segregating approximately 3,399.76 acres of public lands located in the State of Arizona from all forms of appropriation under the public land laws, including the Mining Law of 1872, but not the mineral leasing or mineral materials sales laws, for a period of up to 2 years. This is for the purpose of processing one solar energy right-of-way (ROW) application submitted by Pacific Solar Investments, LLC, to construct and operate the Hyder Valley Solar Energy Project in Maricopa County, Arizona.
Effective Date: This segregation is effective on May 24, 2012.
Eddie Arreola, Supervisory Project Manager; Telephone: 602–417–9505; Address: 1 North Central Avenue, Suite 800, Phoenix, Arizona 85004–4427, or email:
The BLM is segregating the following described public lands located in the State of Arizona, subject to valid existing rights, from all forms of appropriation under the public land laws, including the Mining Law, but not the mineral leasing or the mineral materials sales laws.
The areas described aggregate 3,399.76 acres, more or less, in Maricopa County. In order to process the ROW application filed on the above described lands, the BLM finds that it is necessary for the orderly administration of the public lands to segregate the lands included in the application under the authority contained in 43 CFR2091.3–1(e) and 43 CFR 2804.25(e) for a period of up to 2 years, subject to valid existing rights. This 2-year segregation period commences on May 24, 2012. The public lands involved in this closure will be segregated from all forms of appropriation under the public land laws, including the Mining Law, but not the mineral leasing or material sales laws. The BLM has determined that this segregation is necessary for the orderly administration of the public lands.
The segregation period will terminate and the lands will automatically reopen to all forms of appropriation under the public land laws, including the mining laws, when one of the following events occurs: (1) Upon the issuance of a decision by the BLM authorized officer granting, granting with modifications, or denying the application for a right-of-way; (2) Upon publication of a
The lands to be segregated are identified in the legal description provided above.
43 CFR 2091.3–1(e), 43 CFR 2804.25(e).
Bureau of Ocean Energy Management (BOEM), Interior.
Call for Information and Nominations; Clarification.
On March 15, 2011, BOEM (formerly the Bureau of Ocean Energy Management, Regulation and Enforcement) published a notice in the
Consequently, Section 4.A. items 1 and 2 of the original call are to be revised by deleting the following:
1. Blocks that were previously included within the Eastern GOM Planning Area and are within 100 miles of the Florida coast; and
2. Blocks east of the Military Mission line (86 degrees, 41 minutes west longitude) under an existing moratorium until 2022, as a result of the Gulf of Mexico Energy Security Act of 2006 (December 20, 2006); and replacing them with:
1. Whole blocks and portions of blocks deferred by the Gulf of Mexico Energy Security Act of 2006.
Section 4.A. items 3 and 4 are also renumbered to 2 and 3 respectively to reflect this change.
This modification is effective immediately.
Mr. Carrol Williams, Bureau of Ocean Energy Management, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123–2394, telephone (504) 736–2803.
Office of Surface Mining Reclamation and Enforcement.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing that the information collection request for bonding and insurance requirements for surface coal mining and reclamation operations under regulatory programs has been submitted to the Office of Management and Budget (OMB) for review and approval. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information collections but may respond after 30 days. Therefore, public comments should be submitted to OMB by June 25, 2012 in order to be assured of consideration.
Submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Department of the Interior Desk Officer, by telefax at (202) 395–5806 or via email to
To receive a copy of the information collection request contact John Trelease at (202) 208–2783, or electronically at
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104–13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to renew its approval for the collection of information contained in 30 CFR Part 800—Bonding and insurance requirements for surface coal mining and reclamation operations under regulatory programs. OSM is requesting a 3-year term of approval for each information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1029–0043 for 30 CFR 800.
As required under 5 CFR 1320.8(d), a Federal Register notice soliciting comments for this collection of information was published on March 2, 2012, (77 FR 12879). We received one comment for this information collection request. The commenter expressed concern that bond amounts are not adequate to cover the cost of reclamation if the operator should forfeit their bond, requiring taxpayers to fund reclamation. However, section 509 of SMCRA and 30 CFR Part 800 require that bonds be in an amount adequate to complete the reclamation plan in the event of bond forfeiture. This notice provides the public with an additional 30 days in which to comment on the following information collection activity:
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burdens on respondents, such as use of automated means of collections of the information, to the addresses listed in
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.
United States International Trade Commission.
Correction of notice of investigation.
The Commission's notice published in the
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 18, 2012, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Anu IP LLC of Longview, Texas. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic devices having a retractable USB connector by reason of infringement of certain claims of U.S. Patent No. 6,979,210 (“the `210 patent”) and U.S. Patent No. 7,090,515 (“the `515 patent). The complaint further alleges that an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2011).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on May 17, 2012,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain electronic devices having a retractable USB connector that infringe one or more of claims 1–4, 7, and 8 of the `210 patent and claims 1–4, 7, and 8 of the `515 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)–(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
Notice is hereby given that on May 16, 2012 a proposed Consent Decree (“Decree”) in
The Decree resolves claims of the United States against C&S Wholesale Grocers, Inc. under the Clean Air Act, 42 U.S.C. 7401–7671q, for injunctive relief and recovery of civil penalties in connection with the defendant's operation of cold storage warehouse in Hatfield, Massachusetts, which uses anhydrous ammonia as the refrigerant. The Decree requires the defendant to pay $126,700 in civil penalties; to purchase $10,405 in emergency response equipment for the Town of Hatfield; engage a third-party expert to audit the refrigeration system and recommend any necessary changes; and implement any changes recommended by the expert.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Decree. Comments should be addressed to the Assistant Attorney General, Environmental and Natural Resources Division, and either emailed to
During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that, on April 25, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Eagle Ford intends to file additional written notifications disclosing all changes in membership.
On February 23, 2012, Eagle Ford filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
Notice is hereby given that, on April 27, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 15, 2004, ASME filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 6, 2011. A notice was published in the
Notice is hereby given that, on April 20, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Fluke Networks, Everett, WA; ifak system GmbH, Magdeburg, Germany; SPMC (Changzhou) Co. Ltd., Changzhou, People's Republic of China; GE Multilin, Markham, Ontario, Canada; and Kollmorgen, Radford, VA, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and ODVA intends to file additional written notifications disclosing all changes in membership.
On June 21, 1995, ODVA filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on January 27, 2012. A notice was published in the
National Institute of Justice, DOJ.
Notice of extended comment period and request for comments.
In an effort to obtain further comments from interested parties, the U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Scientific Working Group for Medicolegal Death Investigation has extended the deadline for comments on the draft document titled “Organ and Tissue Procurement Committee Standards and Best Practices for Interaction Between Medical Examiner/Coroner Offices and Organ Tissue Procurement Organizations” from May 12, 2012, to June 11, 2012. Notice of the availability of this document was published previously in the
Comments must be received on or before the extended deadline of June 11, 2012.
Patricia Kashtan, by telephone at 202–353–1856 [
I, Isaac Fulwood, Chairman of the United States Parole Commission, was present at a meeting of the Commission on Thursday, May 17, 2012 at approximately 11:30 a.m.. The meeting was held at the Commission's office, 90 K Street NE., 3rd Floor, Washington, DC 20530. The purpose of the meeting was to discuss and decide three original jurisdiction petitions for reconsideration under 28 CFR 2.27. Three Commissioners were present, constituting a quorum when the vote to close the meeting was submitted.
Public announcement describing the subject matter of the meeting and certification of the General Counsel that this meeting may be closed by votes of the Commissioners present were submitted to the Commissioners before the conduct of any other business. Upon motion duly made, seconded and carried, the following Commissioners voted that the meeting should be closed: Isaac Fulwood, Cranston J. Mitchell and Patricia Cushwa.
Employment and Training Administration (ETA), Labor.
Notice.
The Department of Labor (DOL), 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 extension of approval for the collection of applicant data for the Veterans' Retraining Assistance Program (VRAP), which is part of the VOW to Hire Heroes Act of 2011 (Pub. L. 112–56). VRAP is a new training program for eligible veterans, funded by the Veterans' Administration. To determine eligibility, the Act directs ETA to collect the following information from veteran applicants: Age, employment status, status in a Federal or state job training program within 180 days of the application, and date of application.
This information collection follows an emergency review that was conducted in accordance with the Paperwork Reduction Act of 1995 and 5 CFR 1320.13. OMB approved the emergency request on April 11, 2012. A copy of the proposed information collection request (ICR) can be obtained by contacting the office listed below in the addresses section of this notice.
Written comments must be submitted to the office listed in the addresses section below on or before July 23, 2012.
Submit written comments to Andrew Ridgeway, Office of Workforce Investment, Room S–4209, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. Telephone number: 202–693–3536 (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: 202–693–3817. Email:
ETA seeks a regular extension of OMB's approval to collect individual applicant data for the Veterans Retraining Assistance Program (VRAP) as part of the VOW to Hire Heroes Act of 2011 (Pub. L. 112–56), enacted November 21, 2011. The Act directs the Department of Veterans Affairs (VA), in cooperation with the DOL, to pay for up to 12 months of a training program in a high demand occupation for unemployed eligible veterans. The program is to serve up to 45,000 veterans in Fiscal Year (FY) 2012, beginning July 1, 2012, and up to 54,000 veterans from October 1, 2012, through March 31, 2014.
The VRAP provides the benefit to veterans who fulfill the following eligibility criteria: As of date of application, is at least 35 years old and less than 60; discharged from active duty under conditions other than dishonorable; is unemployed as of date of application; is not eligible to receive other educational assistance from the VA; is not in receipt of compensation for a service-connected disability rated totally disabling by reason of unemployability; was not and is not enrolled in any Federal or state job training program within the previous 180 days; and, the application must be submitted not later than October 1, 2013.
The VA is responsible for determining the following eligibility criteria: Discharged from active duty under conditions other than dishonorable; is not eligible to receive other educational assistance from the VA; is not in receipt of compensation for a service-connected disability rated totally disabling by reason of unemployability. The VA will be collecting information required for their eligibility criteria through the “Application for VA Educational Benefits” (OMB Control Number 2900–0154, VA Form 22–1990). The DOL is required to determine whether each veteran applying for the program is between 35 and 60 years old, is unemployed as of the date of the application, has not and is not enrolled in a Federal or state job training program within 180 days of the application, and has applied for the program no later than October 1, 2013. The DOL is proposing to determine its eligibility requirements by collecting individual applicant data. The data will be linked to the VA's Veterans On-Line Application (VONAPP, VA Form 22–1990) to complete the application. The VA will transmit reports to the DOL about the completion status of the veterans, so that the DOL can make contact with the veteran to offer employment services.
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.
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.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
This notice announces the expiration of recognition of National Technical Systems, Inc., as a Nationally Recognized Testing Laboratory.
The effective date of this notice is June 21, 2012.
Bernard Pasquet, Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N–3655, Washington, DC 20210, or phone (202) 693–2110.
The Occupational Safety and Health Administration (OSHA) hereby provides public notice that the recognition of National Testing Services, Inc., (NTS) as a Nationally Recognized Testing Laboratory (NRTL) will expire on June 21, 2012. OSHA's current scope of recognition for NTS is available at the Web page:
On December 10, 1998, OSHA published in the
Appendix A to 29 CFR 1910.7 stipulates that a recognized NRTL may renew its recognition by filing a renewal request not less than nine months, or no more than one year, before the expiration date of its current recognition. On August 5, 2011, OSHA sent NTS a reminder indicating that OSHA's recognition of NTS as an NRTL would expire on June 21, 2012. However, NTS did not submit a renewal request within the requisite time period. Consequently, the recognition of NTS as an NRTL expires on June 21, 2012. As of that date, NTS is no longer an NRTL, and OSHA no longer accepts the certifications of products by NTS for purposes of OSHA's NRTL-approval requirements. OSHA is publishing this
When an organization is no longer part of the NRTL Program, OSHA cannot accept the organization's NRTL-related product certifications if these certifications occur on or after the date OSHA terminated the organization's NRTL recognition. The following examples describe actions that occur on or after the date that OSHA terminated such an organization's NRTL recognition that would, for purposes of the NRTL Program, constitute invalid product certifications by that organization:
1. Authorizing manufacturers to use its mark by imprinting the terminated NRTL's mark on labels or on products;
2. Authorizing manufactures to use or apply labels containing the terminated NRTL's mark;
3. Issuing labels containing the terminated NRTL's mark to manufacturers; or
4. Manufacturers applying the terminated NRTL's mark or labels containing this mark to products.
For products to remain NRTL certified after the date OSHA terminated the organization's NRTL recognition, the manufacturer must find another NRTL organization that will assume responsibility for certifying the affected product(s); these types of product(s) must fall within that NRTL organization's scope of recognition. If another NRTL organization does not assume responsibility for certifying the product(s), then the terminated NRTL's product certifications are valid only under the following, limited, conditions:
1. The product(s) must be identical to the product model(s) that the terminated NRTL authorized for certification when it was part of the NRTL Program; and
2. The manufacturer must affix the terminated NRTL's mark to the product(s) only prior to the effective date of termination (not on or after that date), or, if the NRTL withdrew its certification of the product(s) at an earlier date, then the manufacturer must manufacture the product(s) and affix the NRTL's mark to the product(s) no later than this earlier date.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to Section 8(g)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657(g)(2)),
National Science Foundation.
Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978, Public Law 95–541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by June 25, 2012. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Polly A. Penhale at the above address or (703) 292–7420.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95–541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
The applications received are as follows:
1.
Take, Enter Antarctic Specially Protected Areas (ASPA's), and Import into the U.S.A. The applicant plans to salvage up to 25 various samples of Adelie penguins (bird parts, feathers, bones, skulls, and shells) and up to 15 of South Polar Skua each year. Samples will be collected from the penguin rookeries located at Beaufort Island (ASPA 105), Cape Royds (ASPA 121), and Cape Crozier (ASPA 124). The samples will be imported into the U.S.A. for education outreach activities. Samples will be deposited with museums, schools, zoos, and aquariums.
Ross Island vicinity, Beaufort Island (ASPA 105), Cape Royds (ASPA 121), and Cape Crozier (ASPA 124).
October 1, 2012 to February 28, 2015.
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation announces the following meeting:
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95–541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nadene G. Kennedy, Permit Office, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
On April 20, 2012, the National Science Foundation published a notice in the
The ACRS Subcommittee on Radiation Protection and Nuclear Materials will hold a meeting on June 5, 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 the technical basis for regulating extended storage and transportation of spent fuel. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christopher Brown (Telephone 301–415–7111 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 (240–888–9835) to be escorted to the meeting room.
The ACRS Subcommittee on Planning and Procedures will hold a meeting on June 5, 2012, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance, with the exception of a portion that may be closed pursuant to 5 U.S.C. 552b (c)(2) and (6) to discuss organizational and personnel matters that relate solely to the internal personnel rules and practices of the ACRS, and information the release of which would constitute a clearly unwarranted invasion of personal privacy.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss proposed ACRS activities and related matters. 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:
Information regarding changes to the agenda, whether the meeting has been canceled or rescheduled, and the time allotted to present oral statements can be obtained by contacting the identified DFO. Moreover, in view of the possibility that the schedule for ACRS meetings may be adjusted by the Chairman as necessary to facilitate the conduct of the meeting, persons planning to attend should check with the DFO if such rescheduling would result in a major inconvenience.
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 (240–888–9835) to be escorted to the meeting room.
Jaime Sánchez (Mr. Sánchez) is President of S&R Engineering (S&R, licensee) in San Juan, Puerto Rico. S&R held License No. 52–30913–01 issued by the U.S. Nuclear Regulatory Commission (NRC or Commission) pursuant to Title 10 of the
In a letter dated August 1, 2011, the NRC provided to Mr. Sánchez the results of an investigation initiated by the NRC's Office of Investigations (OI). The letter informed Mr. Sánchez that
In a separate letter dated August 1, 2011, the NRC informed Mr. Sánchez that the NRC was also considering escalated enforcement action against his company (S&R) for violations of NRC requirements including: (1) Providing information to the NRC that is not complete and accurate in all material respects as required by 10 CFR 30.9(a); (2) failing to comply with or respond to an NRC Order as required by 10 CFR 2.202(b) regarding either payment of the licensing fee or properly disposing of or transferring the gauge; (3) failing to afford the NRC the opportunity to inspect materials, activities, and records under the regulations as required by 10 CFR 19.14(a); and (4) failing to use a minimum of two independent controls that form tangible barriers to secure S&R's portable gauge from unauthorized removal, when the portable gauge was not under S&R's direct control and constant surveillance, as required by 10 CFR 30.34(i).
In those letters, the NRC offered S&R and Mr. Sánchez a choice to attend a Pre-decisional Enforcement Conference (PEC) or to request Alternative Dispute Resolution (ADR) to resolve any disagreement over: (1) Whether the violations occurred; and (2) the appropriate enforcement action. However, Mr. Sánchez did not respond to either letter or to the NRC staff's subsequent communication attempts.
Consequently, on January 13, 2012, the NRC issued to S&R a Notice of Violation and Proposed Imposition of Civil Penalty (CP) in the amount of $14,000, and notification that the NRC would potentially impose additional daily CPs if S&R did not transfer the gauge to an authorized recipient within 30 days from the date of the letter. In that letter, the NRC also informed S&R that the NRC would forgo imposition of any CPs if S&R appropriately transferred its portable gauge to an authorized recipient within 30 days from the date of the letter. The NRC has verified that S&R appropriately transferred the gauge to Earth Engineers, Inc. within the required timeframe. Accordingly, on the date of this Order, the NRC informed S&R that the NRC would not impose any CPs in association with the violations attributed to the company, and that S&R's NRC license has been terminated.
Separately, the NRC has concluded that Mr. Sánchez violated 10 CFR 30.10(a)(2) by deliberately submitting to the NRC information that he knew to be inaccurate in some respect material to the NRC, when, during the aforementioned telephone conversation on August 3, 2010, Mr. Sánchez deliberately informed an NRC inspector that S&R had transferred its gauge to an authorized recipient when, in fact, S&R remained in possession of the gauge. Mr. Sánchez's actions resulted in the NRC being uninformed as to the location of licensed material and, for a time, being precluded from inspecting the safe use and storage of that material. Mr. Sánchez's misrepresentation to the NRC (particularly, given his position as the President of S&R Engineering), and his failure to address or correct the misinformation, have raised serious doubts as to whether he can be relied upon to comply with the NRC requirements and to provide complete and accurate information to the NRC.
As a result, I do not have the necessary assurance that: Mr. Sánchez, should he engage in NRC-licensed activities under any other NRC license, would perform NRC-licensed activities safely and in accordance with the NRC requirements; and that the health and safety of the public will be protected if Mr. Sánchez were permitted at this time to be involved in NRC-licensed activities.
Therefore, the public health, safety, and interest require that Mr. Sánchez be prohibited from any involvement in NRC-licensed activities for a period of 5 years from the date of this Order.
Accordingly, pursuant to Sections 81, 161b, 161i, 182 and 186 of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations in 10 CFR 2.202, and 10 CFR 30.10,
1. Jaime Sánchez is prohibited for 5 years from the date of this Order from engaging in any NRC-licensed activities. NRC-licensed activities are those activities that are conducted pursuant to a specific or general license issued by the NRC, including, but not limited to, those activities of Agreement State licensees conducted pursuant to the authority granted by 10 CFR 150.20.
2. If Jaime Sánchez is currently involved with another licensee in NRC-licensed activities, he must immediately cease those activities, and inform the NRC of the name, address, and telephone number of the employer, and provide a copy of this order to the employer.
3. Jaime Sánchez shall, within 20 days following acceptance of his first employment offer involving NRC-licensed activities or his becoming involved in NRC-licensed activities, as defined in Paragraph IV.1 above, provide notice of the name, address, and telephone number of the employer or the entity where he is, or will be, involved in the NRC-licensed activities to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001. In the notification, Jaime Sánchez shall include a statement of his commitment to comply with the NRC's regulatory requirements and why the Commission should have confidence that he will now comply with applicable NRC requirements, and be complete and accurate in all communications with the NRC.
The Director, OE, may relax or rescind any of the above conditions upon demonstration by Jaime Sánchez of good cause.
In accordance with 10 CFR 2.202, Mr. Sánchez must, and any other person adversely affected by this Order may, submit an answer to this Order within 30 days of its publication in the
All documents filed in the NRC adjudicatory proceedings, including a request for a 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 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
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 a 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 contracting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an extension 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, MD 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 using 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
If a person other than Mr. Sánchez requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d).
If a hearing is requested by a licensee or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 30 days from the date this Order is published in the
For the Nuclear Regulatory Commission.
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 Tuesday, May 22, 2012 at 4:30 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)(2), (4), (6) and (8) and 17 CFR 200.402(a)(2), (4), (6) 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 Walter, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session, and determined that no earlier notice thereof was possible.
The subject matters of the Closed Meeting on May 22 will be examinations of financial institutions and a personnel matter.
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.
On March 15, 2012, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–OCC–2012–03 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The proposed rule change will more closely align OCC's By-Laws and Rules with applicable regulatory requirements related to “statutory disqualifications” under the Act in order to reduce the overall administrative burden on OCC associated with addressing the statutory disqualification of OCC clearing members (“Clearing Members”) and applicants for clearing membership (“Applicants”) and will provide guidance to Clearing Members and Applicants as to OCC's policies with respect to statutory disqualifications. The proposed rule change will amend OCC's “Fitness Standards for Directors, Clearing Members and Others” (“Fitness Standards”) to bring such standards into conformity with the proposed amendments to OCC's By-Laws. The Fitness Standards were submitted to the Commission in proposed rule change SR–OCC–2011–12 and were approved by the Commission on October 27, 2011.4
Persons who have engaged in certain types of misconduct are subject to “statutory disqualification,” as defined by Section 3(a)(39) of the Act, and must undergo a review by the Commission under Rule 19h–1 of the Act in order to enter or continue in membership in a self-regulatory organization (“SRO”). Section 17A(b)(4)(A) of the Act provides that a registered clearing agency may and in cases in which the Commission so orders must deny participation to any person subject to a statutory disqualification. This provision further requires a registered clearing agency to provide the Commission with 30-days' notice before admitting a statutorily disqualified person to clearing membership. Rule 19h–1 of the Act implements these statutory provisions by requiring notice to the Commission if a registered clearing agency proposes either to admit to membership or to continue as a member a person subject to a statutory disqualification. Notably, unlike in the case of a national securities exchange or registered securities association, the rule does not require a registered clearing agency to file such a notice with respect to statutory disqualifications of associated persons of a Clearing Member or Applicant. A registered clearing agency is required to file such a notice only when the Clearing Member or Applicant itself is subject to the disqualification.
Article V of OCC's By-Laws establishes the qualifications required of Clearing Members and sets forth the procedures for admitting persons to clearing membership, including those that are or become subject to a statutory disqualification. Currently, Interpretation and Policy .03 of Article V, Section 1 of OCC's By-Laws provides that the Membership/Risk Committee (“Committee”) will not recommend the approval of an application for membership if the Applicant or an associated person is subject to a statutory disqualification unless the Committee makes a finding that “special circumstances” exist warranting a waiver of the statutory disqualification. The requirements of this By-Law are more stringent than those applied to registered clearing agencies by the Act or Commission rules because they require the Committee to (i) make specific findings of “special circumstances” before recommending membership approval and (ii) address statutory disqualifications of associated persons. The By-Laws therefore impose additional administrative burdens on OCC that are not required under any statute or rule administered by the Commission.
Neither Article V of the By-Laws nor OCC's Rules currently contain procedures for notice to OCC that an Applicant or Clearing Member is subject to a statutory disqualification, which provides insufficient guidance to Applicants and Clearing Members and exposes OCC to the risk that such notice may be given on a delayed basis. OCC's By-Laws and Rules are also silent as to the procedures to be followed by a Clearing Member when it becomes subject to a statutory disqualification even though Rule 19h–1 requires a registered clearing agency to file a notice if it intends to permit such a firm to remain a Clearing Member.
As a registered derivatives clearing organization (“DCO”), OCC is also subject to the jurisdiction of the Commodity Futures Trading Commission (“CFTC”). OCC's By-Laws also address statutory disqualification
In addition to being consistent with the Commission's regulations, OCC's Fitness Standards, as described above, were constructed in part to comply with core principles (“Core Principles”) applicable to DCOs as these core principles were amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act and as are set forth in the CEA. The Fitness Standards establish certain minimum fitness criteria for directors, Clearing Members, and their affiliates sufficient to comply with Core Principle O as set forth in the CEA.
Article V (Clearing Members) sets forth the qualifications for Clearing Members. OCC proposes to amend the current Article V provisions addressing statutory disqualifications to eliminate provisions that require unnecessary Committee action and to add provisions designed to ensure that OCC receives appropriate notice of a statutory disqualification in order to discharge its obligations as an SRO. The proposed amendments are generally based on similar rules of the National Securities Clearing Corporation and the Chicago Board Options Exchange. OCC proposes to amend Article V, Section 1, Interpretation and Policy .03 (Experience and Competence) to:
1. Eliminate the requirement that the Committee must find “special circumstances” warranting the waiver of a statutory disqualification in order to recommend an Applicant's approval for clearing membership providing instead that the Committee may in its discretion consider a statutory disqualification in determining whether or not to recommend approval.
2. Eliminate the requirement that the Committee address the status of associated persons who are subject to statutory disqualifications.
3. Establish procedures requiring Clearing Members and Applicants to provide notice of a statutory disqualification.
4. Eliminate the second paragraph of subsection c. The definition of statutory disqualification in subsection a. includes the conduct covered by Section 15(b)(4)(B) of the Act, making the second paragraph of subsection c. redundant.
OCC proposes to amend Chapter II and Chapter XII of its Rules to:
1. Establish procedures applicable to Clearing Members who are or become subject to a statutory disqualification to provide that: (i) OCC has the discretion not to permit any such Clearing Member to continue in Clearing Membership, (ii) such Clearing Member must notify OCC of any statutory disqualification and may seek to continue in Clearing Membership, (iii) a failure to notify OCC of a statutory disqualification may be deemed a violation of OCC's rules, (iv) OCC may convene a Disciplinary Committee to conduct a hearing concerning a Clearing Member's statutory disqualification, (v) OCC has discretion to waive such provisions if another self-regulatory organization is conducting a proceeding addressing a Clearing Member's statutory disqualification with respect to the same matter, and (vi) OCC has discretion to waive the hearing provisions if OCC intends to grant the Clearing Member's application to continue in Clearing Membership in certain circumstances.
2. Add Interpretation and Policy .01 to Rule 1201 in order to clarify that a decision to suspend or expel a Clearing Member after a disciplinary proceeding under Chapter XII of the Rules would be grounds for summary suspension under Chapter XI of the Rules.
OCC also proposes to amend its Fitness Standards to conform them to the proposed amendments to OCC's By-Laws.
Section 19(b)(2)(C) of the Act
The proposed changes to OCC's By-Laws are designed to more closely align OCC's By-Laws and Rules with applicable regulatory requirements, to establish standard notification and other procedures, to provide Clearing Members with guidance as to OCC's policies regarding statutory disqualifications, to facilitate the timely filing of notices pursuant to Rule 19h–1 should OCC determine to admit to membership or continue in membership any person subject to a statutory disqualification. The proposed changes are not designed to permit unfair discrimination in the admission of participants or among participants in the use of OCC. As a result, the proposed rule change is consistent with the requirements of Section 17A(b)(3)(F) of the Act.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
On March 23, 2012, The NASDAQ Stock Market LLC (“NASDAQ”) filed with the Securities and Exchange Commission (“SEC” or “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 the proposed rule change so that it has sufficient time to consider the proposed rule change, the comments received, and any response to the comments submitted by NASDAQ. The proposed rule change would, among other things, add new Rule 5950 to establish the Market Quality Program and exempt the Market Quality Program from NASDAQ Rule 2460 (Payment for Market Making).
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 (“Act”),
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (“Fee Schedule”) to restructure the threshold qualifications and corresponding rates applicable to Option Trading Permit (“OTP”) Holder and OTP Firm electronic executions of posted Customer liquidity in Penny Pilot issues. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
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 IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule to restructure the threshold qualifications and corresponding rates applicable to OTP Holder and OTP Firm electronic executions of posted Customer liquidity in Penny Pilot issues. The Exchange proposes to make the changes operative on May 8, 2012.
OTP Holders and OTP Firms are currently provided with a credit of $0.25 per contract for electronic executions of posted Customer liquidity in Penny Pilot issues.
The volume thresholds and corresponding credits are intended to incent OTP Holders and OTP Firms to route additional Customer orders in Penny Pilot issues to the Exchange. In this regard, once a particular threshold is met, the per contract credit rate applies to all of the OTP Holder's or OTP Firm's electronic executions of posted Customer liquidity in Penny Pilot issues for the month.
The Exchange proposes to restructure the threshold qualifications as follows:
• First, the current thresholds are based on the total number of contracts of posted Customer liquidity in Penny Pilot issues that an OTP Holder or OTP Firm executes electronically during the course of a month. The Exchange will now calculate the qualification based on average daily volume (“ADV”) in various categories instead of total monthly volume. For purposes of this calculation, days when the market closes early are not included in the ADV.
• OTP Holders and OTP Firms who have an ADV of 15,000 executed electronic posted Customer contracts in Penny Pilot issues will have a credit of $0.38 (“Tier 1”) applied to posted electronic Customer contracts executed in Penny Pilot issues.
• OTP Holders and OTP Firms will have two alternative methods to qualify for a credit of $0.40 (“Tier 2”) applied to posted electronic Customer contracts executed in Penny Pilot issues. An OTP Holder or OTP Firm may qualify for Tier 2 by:
○ Having an ADV of 25,000 executed electronic posted Customer contracts in Penny Pilot issues,
○ Having an ADV of 75,000 executed electronic posted contracts in Penny Pilot issues, regardless of Clearing Account type, from all affiliated OTP Holders and OTP Firms.
• OTP Holders and OTP Firms who have an ADV of 50,000 executed electronic posted Customer contracts in Penny Pilot issues will have a credit of $0.43 (“Tier 3”) applied to posted electronic Customer contracts executed in Penny Pilot issues.
• OTP Holders and OTP Firms will have three alternative methods to qualify for a credit of $0.44 (“Tier 4”) applied to posted electronic Customer contracts executed in Penny Pilot issues. An OTP Holder or OTP Firm may qualify by:
○ Having a combination of an ADV of 65,000 executed electronic posted Customer contracts in Penny Pilot issues AND an average daily posted share volume on NYSE Arca Equities, executed electronically by an affiliated Equity Trading Permit (“ETP”) Holder, of 0.30% or more of U.S. Consolidated ADV for transactions reported to the Consolidated Tape, excluding volume on days when the market closes early, or
○ Having an ADV of 100,000 executed electronic posted contracts in Penny Pilot issues, regardless of Clearing Account type, from all affiliated OTP Holders and OTP Firms, or
○ Having an ADV of 100,000 executed electronic Customer contracts, either posted or removing, in Penny Pilot issues.
Collectively, the proposed new tiers and corresponding rates would be as follows:
The Exchange proposes to retain the current table in the Fee Schedule for the remainder of May 2012, but thereafter to remove it completely, along with any other text within the current and proposed new tables that has been included to differentiate between the current thresholds and rates and newly proposed tiers and rates.
Finally, the Exchange will add explanatory endnote 8 noting that executions of QCC orders and routed orders are not included in the volume calculation, that the definition of “Affiliate” is provided in NYSE Arca Rule 1.1(a),
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed restructuring of the current thresholds and credits is reasonable, equitable and not unfairly discriminatory because the resulting tiers and credits would preserve an existing program on the Exchange that encourages OTP Holders and OTP Firms to send additional Customer orders to the Exchange. In this regard, the Exchange believes that the proposed tiers and corresponding credits would continue to incentivize OTP Holders and OTP Firms to increase the level of Customer order flow sent to, and liquidity added on, the Exchange, thereby potentially improving the quality and efficiency of order interaction and executions on the Exchange.
The Exchange believes that the proposed increase in the applicable credits would further incentivize OTP Holders and OTP Firms to send Customer orders to the Exchange. The Exchange believes that this aspect of the proposed change is reasonable, equitable and not unfairly discriminatory because the higher credits would create an incrementally higher incentive for OTP Holders and OTP Firms to bring additional liquidity to the Exchange, which may contribute to price discovery and may benefit investors, generally. The Exchange notes that it has proposed these higher credits without proposing any increase in the fees charged to OTP Holders and OTP Firms for executions of Customer orders that remove liquidity from the Exchange. Accordingly, the proposed change may have the effect of reducing overall Customer execution costs, to the extent that OTP Holders and OTP Firms pass this savings on to Customers.
The Exchange further believes that the proposed tiers are reasonable, equitable and not unfairly discriminatory because they are set at levels that would be more achievable for OTP Holders and OTP Firms. In this regard, the Exchange has proposed that the volume levels for the tiers be decreased as compared to the current thresholds. Additionally, the Exchange has proposed more than one method of qualifying for certain of the tiers. Overall, the Exchange believes that this will result in more OTP Holders and OTP Firms qualifying for the tiers, receiving the increased credits, and therefore reducing their overall transaction costs on the Exchange. The Exchange also believes that the proposed change is reasonable, equitable and not unfairly discriminatory because the rates for the proposed credits are set at levels that are directly related to the level of liquidity required under the proposed corresponding tiers.
The Exchange further believes that the proposed change is reasonable, equitable and not unfairly discriminatory because the tiers, and the corresponding credits, will apply uniformly to all OTP Holders and OTP Firms. Additionally, the Exchange believes that the aspect of the proposed change related to the activity of an affiliated ETP Holder on NYSE Arca Equities is reasonable, equitable and not unfairly discriminatory because it would encourage increased trading activity on both the NYSE Arca equity and option markets. In this regard, the proposal is designed to bring additional posted order flow to NYSE Arca Equities, so as to provide additional opportunities for all ETP Holders to trade on NYSE Arca Equities.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must
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.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to file with the Commission a proposal for PHLX to accept inbound orders routed by NASDAQ Options Services LLC (“NOS”) from NASDAQ OMX BX's new options market (with the attendant obligations and conditions), as described further below, on a one year pilot basis.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these
In conjunction with a proposal by NASDAQ OMX BX (“BX”) to establish a new options market and provide outbound routing services to all markets using its affiliated routing broker, NOS,
NOS is a broker-dealer and member of PHLX, BX and The NASDAQ Stock Market (“NASDAQ”). NOS provides all routing functions for NASDAQ
Recognizing that the Commission has previously expressed concern regarding the potential for conflicts of interest in instances where a member firm is affiliated with an exchange of which it is a member, PHLX previously proposed, and the Commission approved, limitations and conditions on NOS's affiliation with PHLX.
• First, PHLX and the Financial Industry Regulatory Authority (“FINRA”) will maintain a Regulatory Contract, as well as an agreement pursuant to Rule 17d–2 under the Act (“17d–2 Agreement”).
• Second, FINRA will monitor NOS for compliance with PHLX's trading rules, and will collect and maintain certain related information.
• Third, FINRA will provide a report to PHLX's chief regulatory officer (“CRO”), on a quarterly basis, that: (i) Quantifies all alerts (of which the Exchange or FINRA is aware) that identify NOS as a participant that has potentially violated Commission or Exchange rules, and (ii) lists all investigations that identify NOS as a participant that has potentially violated Commission or Exchange rules.
• Fourth, PHLX has in place PHLX Rule 985, which requires NASDAQ OMX, as the holding company owning both PHLX and NOS, to establish and maintain procedures and internal controls reasonably designed to ensure that NOS does not develop or implement changes to its system, based on non-public information obtained regarding planned changes to PHLX's systems as a result of its affiliation with PHLX, until such information is available generally to similarly situated Exchange members, in connection with the provision of inbound order routing to PHLX.
• Fifth, PHLX proposes that the routing of orders from NOS to PHLX, in NOS's capacity as a facility of BX be authorized for a pilot period of one year.
PHLX believes that the above-listed conditions protect the independence of PHLX's regulatory responsibility with respect to NOS, and that these mitigate the aforementioned concerns about potential conflicts of interest and unfair competitive advantage.
PHLX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change; or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to clarify how the processing of a Price to Comply Order under Rule 4751(f)(7) operates based on the method of entry. The Exchange will implement the change effective May 14, 2012.
The text of the proposed rule change is below. Proposed new language is italics; proposed deletions are in brackets.
The following definitions apply to the Rule 4600 and 4750 Series for the trading of securities listed on Nasdaq or a national securities exchange other than Nasdaq.
(a)–(e)
(f) The term “Order Type” shall mean the unique processing prescribed for designated orders that are eligible for entry into the System, and shall include:
(1)–(6) No change.
(7) “Price to Comply Order” are orders that, if, at the time of entry, a Price to Comply Order would lock or cross the quotation of an external market, the order will be priced to the current low offer (for bids) or to the current best bid (for offers) and displayed at a price one minimum price increment lower than the offer (for bids) or higher than the bid (for offers). The displayed and undisplayed prices of a Price to Comply order
(8)–(14) No change.
(g)–(i) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ is proposing to clarify the effect that the methods of order entry have on the processing of a Price to Comply Order, as described in Rule
In June 2008, NASDAQ amended Rule 4751(f)(7).
NASDAQ is proposing to amend Rule 4751(f)(7) to clarify the effect that the method of order entry has on the processing of the Price to Comply Order. As noted above, the method of entry of a Price to Comply Order determines whether the order is repriced once or multiple times. This will continue to be the case under the amended rule; however, an OUCH subscriber will be afforded the choice to have its Price to Comply Order be subject to repricing either only once or multiple times. Member firms will designate each OUCH protocol order port to use either the single or multiple repricing functionality for any Price to Comply Order entered via that port.
NASDAQ believes that the new functionality and related rule change will serve to reduce the order traffic received using the OUCH protocol. NASDAQ notes that, in certain cases, a member will submit a Price to Comply Order at an aggressive price that it anticipates will be at the NBBO. Often such an order is not submitted at the NBBO and is not executed after repricing because the market does not move to the adjusted order price. In such cases, the member firm will typically submit additional aggressive orders, which likewise are not executed. Because the OUCH protocol is used by member firms that are able to submit a large volume of orders, NASDAQ believes that offering such firms the ability to have NASDAQ reprice a Price to Comply Order multiple times will serve to reduce the excessive volume of orders entered into the System and ultimately canceled.
As noted, NASDAQ will continue to offer OUCH subscribers an alternative to the multiple repricing functionality so that such member firms may elect to have a locked or crossed Price to Comply Order repriced only once, consistent with the current process. NASDAQ believes that this will accommodate member firms that seek the certainty of repricing at most once or whose trading systems depend on the existing repricing mechanism.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. The Exchange has provided the Commission 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 of the proposed rule change.
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 is filing with the Commission a proposal for the NASDAQ Options Market (“NOM”) to accept inbound orders routed by NASDAQ Options Services LLC (“NOS”) from NASDAQ OMX BX's new options market (with the attendant obligations and conditions), as described further below, on a one year pilot basis.
The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In conjunction with a proposal by NASDAQ OMX BX (“BX”) to establish a new options market and provide outbound routing services to all markets using its affiliated routing broker, NOS,
NOS is a broker-dealer and member of NASDAQ, BX and NASDAQ OMX PHLX (“PHLX”). NOS provides all routing functions for NASDAQ
Recognizing that the Commission has previously expressed concern regarding the potential for conflicts of interest in instances where a member firm is affiliated with an exchange of which it is a member, NASDAQ previously proposed, and the Commission approved, limitations and conditions on NOS's affiliation with NASDAQ.
Also recognizing that the Commission has expressed concern regarding the potential for conflicts of interest in instances where a member firm is affiliated with an exchange to which it is routing orders, many exchanges have filed with the Commission the conditions and limitations under which they can accept inbound orders from an affiliated exchange using an affiliated router.
• First, NASDAQ and the Financial Industry Regulatory Authority (“FINRA”) will maintain a Regulatory Contract, as well as an agreement pursuant to Rule 17d–2 under the Act (“17d–2 Agreement”).
• Second, FINRA will monitor NOS for compliance with NASDAQ's trading rules, and will collect and maintain certain related information.
• Third, FINRA will provide a report to NASDAQ's chief regulatory officer (“CRO”), on a quarterly basis, that: (i) Quantifies all alerts (of which the Exchange or FINRA is aware) that identify NOS as a participant that have potentially violated Commission or Exchange rules, and (ii) lists all investigations that identify NOS as a participant that has potentially violated Commission or Exchange rules.
• Fourth, NASDAQ is amending NASDAQ Rule 2160
• Fifth, NASDAQ proposes that the routing of orders from NOS to NASDAQ, in NOS's capacity as a facility of BX be authorized for a pilot period of one year.
NASDAQ believes that the above-listed conditions protect the independence of NASDAQ's regulatory responsibility with respect to NOS, and that these mitigate the aforementioned concerns about potential conflicts of interest and unfair competitive advantage.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change; or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to modify the “Equities Pricing” section of its fee schedule to update the number of ports provided in connection with the Exchange's Multicast PITCH data feed. As described in further detail below, there is no change to the fee structure for logical ports used to receive Multicast PITCH data from the Exchange, but rather, simply an update necessary due to an increase to the number of matching engines used to operate the Exchange's platform for cash equities (“BATS Equities”). This increase, in turn, requires an update to the number of logical ports necessary to receive Multicast PITCH data from the Exchange, which is reflected on the Exchange's fee schedule.
Specifically, the Exchange currently operates BATS Equities with 12 matching engines, which in turn requires the use of 12 Multicast PITCH logical ports in order to receive Multicast PITCH data. The Exchange provides all Exchange constituents that receive the Exchange's Multicast PITCH Feed with 12 free pairs
As of May 14, 2012, BATS Equities will operate with 32 matching engines.
The Exchange's proposal to continue to provide certain ports free of charge to Multicast Pitch customers is designed to encourage use of the Exchange's Multicast PITCH Feed because the Exchange believes that the feed is its most efficient feed, and thus, will reduce infrastructure costs for both the Exchange and those who utilize the feed. Any Member or non-member that has entered into the appropriate agreements with the Exchange is permitted to receive Multicast Pitch Spin Server Ports and GRP Ports from the Exchange.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
As noted above, the Exchange is not changing the fee structure for logical ports necessary to receive Multicast PITCH data from the Exchange, but rather, is increasing the number of ports that comprise a set of ports for the receipt of Multicast PITCH data. The Exchange continues to believe that its logical port fees are reasonable in light of the benefits to Members of direct market access and receipt of data. In addition, the Exchange believes that its fees are equitably allocated among its constituents based upon the number of access ports that they require to submit orders to the Exchange or receive data from the Exchange. The Exchange also believes that providing financial incentives to use Exchange technology that the Exchange believes is the most technologically efficient for the Exchange and its constituents is a fair and equitable approach to pricing. Accordingly, the Exchange believes that promotion of its Multicast PITCH data feed through the continued offering of free logical ports is fair and equitable. Based on the foregoing, the Exchange believes that the proposed pricing structure for logical ports is not unreasonably discriminatory.
The Exchange does not believe that the proposed rule change imposes any burden on competition.
No written comments were solicited or received.
Pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change would update the procedures applied to adjustment panel voting and would eliminate the requirement that an adjustment panel be convened to vote on certain specific types of standard contract adjustments affecting equity options.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. 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 principal purposes of this rule change are to update the procedures applied to adjustment panel voting and to eliminate the requirement that an adjustment panel be convened to vote on certain specific types of standard contract adjustments affecting equity options. These changes are intended to improve overall operational efficiency in responding to events for which a contract adjustment may be made.
Certain panels may be convened under OCC's by-laws to (i) determine contract adjustments to the terms of outstanding options when certain events occur (e.g., stock distribution, stock dividend, merger, consolidation or reorganization) and (ii) fix certain amounts or values in respect of certain options in the event a required value is unreported, inaccurate, unreliable, unavailable, or inappropriate. Such panels are convened in accordance with Article VI, Section 11 of OCC's by-laws and currently consist of two representatives of each options exchange on which options affected by the event are traded and one representative of OCC, who votes only in case of a tie. The decision to adjust (and the nature of the adjustment to be made) or to fix an amount or value is made by majority vote of the adjustment panel. Most often, panels are convened to determine adjustments to the terms of outstanding equity options in response to certain corporate events.
The procedures for panel voting, as described in Article VI, Section 11, have not been updated for over 25 years. In the past, a smaller number of OCC options exchanges posed few problems in convening panels to consider adjustments for equity options. Currently, however, there are nine options exchanges and multiple listing of equity options on several, if not all, exchanges is common. It is increasingly difficult to convene two members from each exchange to consider adjustments on a timely basis. This difficulty is magnified when it is necessary to convene panel meetings to address late-breaking events which often occur outside of normal business hours. Additionally, although all equity option adjustments must currently be addressed by an adjustment panel, certain corporate events and their corresponding option adjustments are so regular and predictable that it no longer appears necessary for an adjustment panel to be convened to address them.
The OCC Securities Committee has unanimously endorsed the proposed changes and OCC's Board of Directors and stockholders have authorized OCC to submit this filing. OCC is continuing to evaluate the rules applicable to adjustment determinations and additional changes may be proposed in the future.
As discussed below, OCC is proposing several changes to the voting procedures for the Securities Committee and adjustment panels. OCC believes the proposed changes will provide significant operational efficiencies, allowing OCC and the option exchanges to respond more quickly to corporate events affecting listed options. The proposed changes to the procedures governing adjustment panel voting would (1) Change the requirement that each exchange be represented by two persons to one person,
The specific corporate events which would no longer require a panel vote to effect an adjustment to the terms of an option would be limited to stock splits or stock distributions where additional shares of the underlying security are issued, reverse splits, and cash mergers or similar events where all shares are exchanged exclusively for cash. Adjustments for stock splits, stock distributions, and reverse splits are generally the most routine option adjustments executed by OCC. Option adjustments for these events, when executed, are the result of well understood formulae and consistent precedent. The Securities Committee does not believe it is necessary to convene adjustment panels for “boiler plate” adjustments of this kind. In like manner, mergers and other events where the affected security is exchanged exclusively for cash have always
While an adjustment panel vote would not be required in these cases, an adjustment panel could be convened at any time at the request of any exchange or OCC in order to address any aspect of the corporate event or option contract adjustment deemed to need discussion by such panel. Also, in all cases of option adjustments, OCC and the exchanges would naturally coordinate the operational execution of the adjustments (effective date, option symbol, strike prices, etc).
The proposed changes also allow convened panels the ability to conduct their business by any means determined by the Securities Committee. Currently, the Securities Committee and panels are allowed to conduct business in person or by phone. For the purposes of exchanging information and registering votes, OCC and the Securities Committee believe that electronic means of communication (e.g., email) should also be allowed as well as other means of communication which may be available in the future (e.g., OCC systems applications developed for this purpose).
OCC believes that the proposed changes to its By-Laws are consistent with the purposes and requirements of Section 17A of the Act
OCC does not believe that the proposed rule change will have any impact or impose any burden on competition.
Written comments relating to the proposed rule change have not been solicited or received. OCC will notify the Commission of any written comments received by OCC.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
On April 30, 2012, the Department of State certified, pursuant to Section 609 of Public Law 101–162, that 13 nations have adopted programs to reduce the incidental capture of sea turtles in their shrimp fisheries comparable to the program in effect in the United States. The Department also certified that the fishing environments in 26 other countries and one economy do not pose a threat of the incidental taking of sea turtles protected under Section 609.
Marlene M. Menard, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Department of State, Washington, DC 20520–7818; telephone: (202) 647–5827.
Section 609 of Public Law 101–162 (“Section 609”) prohibits imports of certain categories of shrimp unless the President certifies to the Congress not later than May 1 of each year either: (1) That the harvesting nation has adopted a program governing the incidental capture of sea turtles in its commercial shrimp fishery comparable to the program in effect in the United States and has an incidental take rate comparable to that of the United States; or (2) that the fishing environment in the harvesting nation does not pose a threat of the incidental taking of sea turtles. The President has delegated the authority to make this certification to the Department of State (“the Department”). Revised State Department guidelines for making the required certifications were published in the
On April 30, 2012, the Department certified 13 nations on the basis that their sea turtle protection programs are comparable to that of the United States: Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Nigeria, Pakistan, Panama, and Suriname. Costa Rica is re-certified this year based on improvement in the implementation and enforcement of its turtle excluder device regulatory program in their commercial shrimp trawl fishery. The Department also certified 26 shrimp harvesting nations and one economy as having fishing environments that do not pose a danger to sea turtles. Sixteen nations have shrimping grounds only in cold waters where the risk of taking sea turtles is negligible. They are: Argentina, Belgium, Canada, Chile, Denmark, Finland, Germany, Iceland, Ireland, the Netherlands, New Zealand, Norway, Russia, Sweden, the United Kingdom, and Uruguay. Ten nations and one economy only harvest shrimp using small boats with crews of less than five that use manual rather than mechanical means to retrieve nets, or catch shrimp using other methods that do not threaten sea turtles. Use of such small-scale technology does not adversely affect sea turtles. The 10 nations and one economy are: the Bahamas, Belize, China, the Dominican Republic, Fiji, Hong Kong, Jamaica, Oman, Peru, Sri Lanka, and Venezuela.
The Department of State has communicated the certifications under Section 609 to the Office of Field Operations of U.S. Customs and Border Protection. All DS–2031 forms accompanying shrimp imports from uncertified nations must be originals and signed by the competent domestic fisheries authority.
In order for shrimp harvested with turtle excluder devices (TEDs) in an uncertified nation to be eligible for importation into the United States under the DS–2031 section 7(A)(2) provision for “shrimp harvested by commercial shrimp trawl vessels using TEDs comparable in effectiveness to those required in the United States”, the Department of State must determine in advance that the government of the harvesting nation has put in place adequate procedures to ensure the accurate completion of the DS–2031 forms. At this time, the Department has made such a determination only with respect to Australia, Brazil and France. Thus, the importation of TED-caught shrimp from any other uncertified nation will not be allowed. For Brazil, only shrimp harvested in the northern shrimp fishery are eligible for entry under this provision. For Australia, shrimp harvested in the Exmouth Gulf Prawn Fishery, the Northern Prawn Fishery, the Queensland East Coast Trawl Fishery, and the Torres Strait Prawn Fishery are eligible for entry under this provision. For France, shrimp harvested in the French Guiana domestic trawl fishery are eligible for entry under this provision. An official of the competent domestic fisheries authority for the country where the shrimp were harvested must sign the DS–2031 form accompanying these imports into the United States.
In addition, the Department has determined that shrimp harvested in the Spencer Gulf region in Australia may be exported to the United States under the DS–2031 section 7(A)(4) provision for “shrimp harvested in a manner or under circumstances determined by the Department of State not to pose a threat of the incidental taking of sea turtles.” An official of the Government of Australia must certify the DS–2031 form accompanying these imports into the United States.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before June 13, 2012.
You may send comments identified by Docket Number FAA–2012–0514 using any of the following methods:
• Government-wide rulemaking Web site: Go to
• Mail: Send comments to the Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590.
• Fax: Fax comments to the Docket Management Facility at 202–493–2251.
• Hand Delivery: Bring comments to the Docket Management Facility in Room W12–140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Privacy: We will post all comments we receive, without change, to
Docket: To read background documents or comments received, go to
Carol Greb, ACE–114, (816) 329–4136, Federal Aviation Administration, 901 Locust St., Kansas City, MO 64106, or Frances Shaver, ARM–207, (202) 267–4059, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before June 13, 2012.
You may send comments identified by Docket Number FAA–2003–14563 using any of the following methods:
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Robert Hawks, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–7143; email:
On June 14, 2010, the FAA renewed AirTran's exemption until September 30, 2012. That grant of exemption stated the FAA would publish any future extension petitions to permit the public to comment on the continued public interest served by this exemption. Specifically, the FAA requests comments focus on three issues: (1) Whether the FAA should extend the exemption to AirTran for a period of at least 2 years; (2) whether the FAA should permit the exemption to retire according to its terms; and (3) whether the FAA should permit the exemption to retire and grant a similar exemption to another carrier following a lottery among interested new entrant or limited incumbent carriers as defined in 14 CFR 93.123. The FAA will review all comments received and may publish an additional notice.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before June 13, 2012.
You may send comments identified by Docket Number FAA–2002–13734 using any of the following methods:
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Robert Hawks, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–7143; email:
On June 14, 2010, the FAA renewed Republic's exemption until September 30, 2012. That grant of exemption stated the FAA would publish any future extension petitions to permit the public to comment on the continued public interest served by this exemption. Specifically, the FAA requests comments focus on three issues: (1) Whether the FAA should extend the exemption to Republic for a period of at least 2 years; (2) whether the FAA should permit the exemption to retire according to its terms; and (3) whether the FAA should permit the exemption to retire and grant a similar exemption to another carrier following a lottery among interested new entrant or limited incumbent carriers as defined in 14 CFR 93.123. The FAA will review all comments received and may publish an additional notice.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for review and approval. The FMCSA seeks approval to extend an ICR entitled, “Licensing Applications for Motor Carrier Operating Authority,” that is used by for-hire motor carriers of regulated commodities, motor passenger carriers, freight forwarders, property brokers, and certain Mexico-domiciled motor carriers to register their operations with the FMCSA. The agency invites public comment on the ICR. On March 14, 2012, FMCSA published a
Please send your comments by June 25, 2012. OMB must receive your comments by this date in order to act quickly on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA–2012–0135. Interested persons are invited to 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 attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to
Ms. Denise Ryan, Transportation Specialist, Office of Information Technology, Information Technology Operations Division, Department of Transportation, Federal Motor Carrier Safety Administration, 6th Floor, West Building, 1200 New Jersey Ave. SE., Washington, DC 20590, Telephone Number (202) 493–0242; Email Address
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; extension of comment period.
On March 27, 2012, FMCSA announced planned improvements to the Carrier Safety Measurement System (SMS). A preview of these improvements and their potential effects on a motor carrier's status has been available to motor carriers and law enforcement since publication of the notice. The system changes were scheduled to be implemented for use in prioritizing FMCSA and State intervention resources and made available to the public on the SMS public Web site in July 2012. However, based on feedback received by the Agency, FMCSA extends the comment period for motor carriers and law enforcement to July 30, 2012.
Comments must be received on or before July 30, 2012.
You may submit comments identified by Federal Docket Management System Number FMCSA–2012–0074 by any of the following methods:
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Note that all comments received, including any personal information provided, will be posted without change to
Mr. Bryan Price, Federal Motor Carrier Safety Administration, 1000 Liberty Avenue, Suite 1300, Pittsburgh, PA 15222, Telephone 412–395–4816, E-Mail:
On March 27, 2012, (77 FR 18298), FMCSA published a notice announcing changes to the Agency's Safety Measurement System and a preview period for law enforcement and motor carriers to assess the impact of the changes. We provided a 60-day period for initial comments from motor carriers and law enforcement that would have expired on May 29, 2012. However, based on feedback received by the Agency, this comment period is being extended 60 days to July 30, 2012. Once the preview is complete an additional opportunity will be provided for public review and comment.
The improvements proposed include: (1) Changes to the SMS methodology that find higher risk carriers while addressing industry biases; (2) Better applications of SMS results for Agency interventions by more effectively identifying safety sensitive carriers (i.e., passenger carriers transporting people and carriers hauling hazardous materials (HM)), so that such firms can be selected for CSA interventions at more stringent levels; and, (3) More specific fact-based displays of SMS results on the SMS Web site.
This extension will provide motor carriers with additional time to preview how the improvements impact their individual safety data in SMS. Motor carriers will have additional time to take action related to their data in the SMS, and additional time to provide comments to the Agency. The data preview may be found at
During the data preview period, the Agency requests comments on the impacts of the changes.
Cleveland Commercial Railroad Company, LLC (CCR), a Class III rail carrier, has filed a verified notice of exemption pursuant to 49 CFR 1180.2(d)(2) to continue in control of Cleveland Harbor Belt Railroad (CHB), upon CHB's becoming a Class III rail carrier. CCR has established CHB as a limited liability company and has the entire ownership interest in CHB.
This transaction is related to a concurrently filed verified notice of exemption in
CCR represents that: (1) The rail line to be operated by CHB will not connect with the lines currently operated by CCR; (2) the continuance in control is not part of a series of anticipated transactions that would result in such a connection; and (3) the transaction does not involve a Class I carrier. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35623, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on John D. Heffner, 1700 K Street NW., Suite 640, Washington, DC 20006.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Cleveland Harbor Belt Railroad (CHB), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to operate approximately one mile of terminal railroad trackage
This transaction is related to a concurrently filed verified notice of exemption in
The transaction may be consummated on or after June 7, 2012 (30 days after the notice of exemption was filed).
CHB certifies that its projected annual revenues as a result of this transaction will not result in CHB's becoming a Class I or Class II rail carrier and will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35624, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, one copy of each pleading must be served on John D. Heffner, 1700 K Street NW., Suite 640, Washington, DC 20006.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of 2 individuals whose property and interests in property are blocked pursuant to Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.”
The designations by the Director of OFAC of the 2 individuals in this notice, pursuant to Executive Order 13224, are effective on May 17, 2012.
Assistant Director, Compliance
This document and additional information concerning OFAC are available from OFAC's Web site (
On September 23, 2001, the President issued Executive Order 13224 (the “Order”) pursuant to the International Emergency Economic Powers Act, 50 U.S.C. 1701–1706, and the United Nations Participation Act of 1945, 22 U.S.C. 287c. In the Order, the President declared a national emergency to address grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the September 11, 2001 terrorist attacks in New York, Pennsylvania, and at the Pentagon. The Order imposes economic sanctions on persons who have committed, pose a significant risk of committing, or support acts of terrorism. The President identified in the Annex to the Order, as amended by Executive Order 13268 of July 2, 2002, 13 individuals and 16 entities as subject to the economic sanctions. The Order was further amended by Executive Order 13284 of January 23, 2003, to reflect the creation of the Department of Homeland Security.
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in or hereafter come within the United States or the possession or control of United States persons, of: (1) Foreign persons listed in the Annex to the Order; (2) foreign persons determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, to have committed, or to pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States; (3) persons determined by the Director of OFAC, in consultation with the Departments of State, Homeland Security and Justice, to be owned or controlled by, or to act for or on behalf of those persons listed in the Annex to the Order or those persons determined to be subject to subsection 1(b), 1(c), or 1(d)(i) of the Order; and (4) except as provided in section 5 of the Order and after such consultation, if any, with foreign authorities as the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, deems appropriate in the exercise of his discretion, persons determined by the Director of OFAC, in consultation with the Departments of State, Homeland Security and Justice, to assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of, such acts of terrorism or those persons listed in the Annex to the Order or determined to be subject to the Order or to be otherwise associated with those persons listed in the Annex to the Order or those persons determined to be subject to subsection 1(b), 1(c), or 1(d)(i) of the Order.
On May 17, 2012 the Director of OFAC, in consultation with the Departments of State, Homeland Security, Justice and other relevant agencies, designated, pursuant to one or more of the criteria set forth in subsections 1(b), 1(c) or 1(d) of the Order, 2 individuals whose property and interests in property are blocked pursuant to Executive Order 13224.
The listings for these individuals on OFAC's list of Specially Designated Nationals and Blocked Persons appear as follows:
1. BARI, Abdul Baqi (a.k.a. AL-BAKI, 'Abd; a.k.a. AL-BARI, 'Abd; a.k.a. BAKI, Abdul; a.k.a. BAQI, Abdul; a.k.a. BARI, Haji Abdul; a.k.a. BARI, Abdul; a.k.a. IBRAHIM, 'Abd Al-Baqi Muhammad; a.k.a. IBRAHIM, 'Abd Labaqi Muhammad; a.k.a. ISHAQZAI, Rais Abdul Bari; a.k.a. “ABDELBAKI”); DOB 1 Jan 1953; alt. DOB 1952; POB Kandahar, Afghanistan; Passport 306749 (Afghanistan) expires 28 Jun 2014; alt. Passport 47168 (Afghanistan) (individual) [SDGT]
2. GUL, Bakht (a.k.a. BAHAR, Bakht Gul; a.k.a. GUL, Bakhta; a.k.a. “SHUQIB”), Miram Shah, North Waziristan, Federally Administered Tribal Areas, Pakistan; DOB 1980; POB Aki Village, Zadran District, Paktiya Province, Afghanistan; nationality Afghanistan (individual) [SDGT]
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing additional identifying information associated with the one individual and six entities listed in the Annex to Executive Order 13606 of April 22, 2012 “Blocking the Property and Suspending Entry Into the United States of Certain Persons With Respect to Grave Human Rights Abuses by the Governments of Iran and Syria via Information Technology,” whose property and interests in property are blocked.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, Tel.: 202/622–2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On April 22, 2012, the President issued Executive Order 13606, “Blocking the Property and Suspending Entry Into the United States of Certain Persons With Respect to Grave Human Rights Abuses by the Governments of Iran and Syria via Information Technology,” (the “Order”) pursuant to,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any United States person, including any foreign branch, of persons listed in the Annex to the Order and of persons determined by the Secretary of the Treasury, in consultation with or at the recommendation of the Secretary of State, to satisfy certain criteria set forth in the Order.
The Annex to the Order lists one individual and six entities whose property and interests in property are blocked pursuant to the Order. OFAC is publishing additional identifying information associated with the individual and entities. As noted in the listings below, the property and interests in property of the individual and five entities were previously blocked pursuant to other authorities.
The listings for the individual and entities on OFAC's list of Specially Designated Nationals and Blocked persons appear as follows:
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing the price of the 2012 America the Beautiful Quarters Five Ounce Silver Uncirculated Coins
The coins will be offered for sale at a price of $204.95.
B.B. Craig, Associate Director for Sales and Marketing, United States Mint, 801 9th Street NW., Washington, DC 20220; or call 202–354–7500.
31 U.S.C. 5111, 5112 & 9701.
United States Sentencing Commission.
Notice of proposed priorities. Request for public comment.
As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the United States Sentencing Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2013.
Public comment should be received on or before July 23, 2012.
Send comments to: United States Sentencing Commission, One Columbus Circle NE., Suite 2–500, South Lobby, Washington, DC 20002–8002, Attention: Public Affairs—Priorities Comment.
Jeanne Doherty, Office of Legislative and Public Affairs, 202–502–4502.
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p).
The Commission provides this notice to identify tentative priorities for the amendment cycle ending May 1, 2013. The Commission recognizes, however, that other factors, such as the enactment of any legislation requiring Commission action, may affect the Commission's ability to complete work on any or all of its identified priorities by the statutory deadline of May 1, 2013. Accordingly, it may be necessary to continue work on any or all of these issues beyond the amendment cycle ending on May 1, 2013.
As so prefaced, the Commission has identified the following tentative priorities:
(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission's 2011 report to Congress, titled
(2) Continuation of its work with the congressional, executive, and judicial branches of government, and other interested parties, to study the manner in which
(3) Continuation of its review of child pornography offenses and report to Congress as a result of such review. It is anticipated that any such report would include (A) a review of the incidence of, and reasons for, departures and variances from the guideline sentence; (B) a compilation of studies on, and analysis of, recidivism by child pornography offenders; and (C) possible recommendations to Congress on any statutory and/or guideline changes that may be appropriate.
(4) Continuation of its work on economic crimes, including (A) a comprehensive, multi-year study of '2B1.1 (Theft, Property Destruction, and Fraud) and related guidelines, including examination of the loss table and the definition of loss, and (B) consideration of any amendments to such guidelines that may be appropriate in light of the information obtained from such study.
(5) Continuation of its multi-year study of the statutory and guideline definitions of “crime of violence”, possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate in response to any related legislation.
(6) Undertaking a comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons; and (C) consideration of any amendments to the
(7) Resolution of circuit conflicts, pursuant to the Commission's continuing authority and responsibility, under 28 U.S.C. 991(b)(1)(B) and
(8) Implementation of any crime legislation enacted during the 111th or 112th Congress warranting a Commission response.
(9) Consideration of (A) whether any amendments to the
The Commission hereby gives notice that it is seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2013. To the extent practicable, public comment should include the following: (1) A statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.
28 U.S.C. 994(a), (o); USSC Rules of Practice and Procedure 5.2.
United States Sentencing Commission.
Notice of period during which individuals may apply to be appointed to certain voting memberships of the Practitioners Advisory Group; request for applications.
Because the terms of certain voting members of the Practitioners Advisory Group are expiring as of October 2012, the United States Sentencing Commission hereby invites any individual who is eligible to be appointed to succeed such a voting member to apply. The voting memberships covered by this notice are four circuit memberships (for the First Circuit, Fifth Circuit, Tenth Circuit, and Eleventh Circuit) and one at-large membership. Applications should be received by the Commission not later than July 23, 2012. Applications may be sent to the address listed below.
Applications for voting membership of the Practitioners Advisory Group should be received not later than July 23, 2012.
Send applications to: United States Sentencing Commission, One Columbus Circle NE., Suite 2–500,
Jeanne Doherty, Office of Legislative and Public Affairs, 202–502–4502.
The Practitioners Advisory Group of the United States Sentencing Commission is a standing advisory group of the United States Sentencing Commission pursuant to 28 U.S.C. 995 and Rule 5.4 of the Commission's Rules of Practice and Procedure. Under the charter for the advisory group, the purpose of the advisory group is (1) To assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. 994(o); (2) to provide to the Commission its views on the Commission's activities and work, including proposed priorities and amendments; (3) to disseminate to defense attorneys, and to other professionals in the defense community, information regarding federal sentencing issues; and (4) to perform other related functions as the Commission requests. The advisory group consists of not more than 17 voting members, each of whom may serve not more than two consecutive three-year terms. Of those 17 voting members, one shall be Chair, one shall be Vice Chair, 12 shall be circuit members (one for each federal judicial circuit other than the Federal Circuit), and three shall be at-large members.
To be eligible to serve as a voting member, an individual must be an attorney who (1) Devotes a substantial portion of his or her professional work to advocating the interests of privately-represented individuals, or of individuals represented by private practitioners through appointment under the Criminal Justice Act of 1964, within the federal criminal justice system; (2) has significant experience with federal sentencing or post-conviction issues related to criminal sentences; and (3) is in good standing of the highest court of the jurisdiction or jurisdictions in which he or she is admitted to practice. Additionally, to be eligible to serve as a circuit member, the individual's primary place of business or a substantial portion of his or her practice must be in the circuit concerned. Each voting member is appointed by the Commission.
The Commission invites any individual who is eligible to be appointed to a voting membership covered by this notice to apply.
28 U.S.C. 994(a), (o), (p), 995; USSC Rules of Practice and Procedure 5.2, 5.4.
United States Sentencing Commission.
Notice of period during which individuals may apply to be appointed to voting memberships of the Victims Advisory Group; request for applications.
In view of existing vacancies in the membership of the Victims Advisory Group, as well as anticipated vacancies in the membership of the advisory group because the terms of certain members are expiring as of December 2012, the Commission hereby invites any individual who has knowledge, expertise, and/or experience in the area of federal crime victimization to apply to be appointed to the membership of the advisory group. Applications should be received by the Commission not later than July 23, 2012. Applications may be sent to the address listed below.
Applications for membership of the Victims Advisory Group should be received not later than July 23, 2012.
Send applications to: United States Sentencing Commission, One Columbus Circle NE., Suite 2–500, South Lobby, Washington, DC 20002–8002, Attention: Public Affairs.
Jeanne Doherty, Office of Legislative and Public Affairs, 202–502–4502.
The Victims Advisory Group of the United States Sentencing Commission is a standing advisory group of the United States Sentencing Commission pursuant to 28 U.S.C. 995 and Rule 5.4 of the Commission's Rules of Practice and Procedure. Under the charter for the advisory group, the purpose of the advisory group is (1) to assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. 994(o); (2) to provide to the Commission its views on the Commission's activities and work, including proposed priorities and amendments, as they relate to victims of crime; (3) to disseminate information regarding sentencing issues to organizations represented by the Victims Advisory Group and to other victims of crime and victims advocacy groups, as appropriate; and (4) to perform any other functions related to victims of crime as the Commission requests. Under the charter, the advisory group consists of not more than nine members, each of whom may serve not more than two consecutive three-year terms. Each member is appointed by the Commission.
The Commission invites any individual who has knowledge, expertise, and/or experience in the area of federal crime victimization to apply to be appointed to the membership of the Victims Advisory Group.
28 U.S.C. 994(a), (o), (p), § 995; USSC Rules of Practice and Procedure 5.2, 5.4.
The Department of Veterans Affairs (VA) gives notice under Public Law 92–463 (Federal Advisory Committee Act) that the Research Advisory Committee on Gulf War Veterans' Illnesses will meet on June 18–19, 2012, in room 109 at the Boston University Medical Campus, 80 East Concord Street, Boston, Massachusetts. The meeting will start at 8 a.m. each day and will adjourn at 5:30 p.m. on June 18, and at 1:30 p.m. on June 19. The meeting is open to the public.
The purpose of the Committee is to provide advice and make recommendations to the Secretary of Veterans Affairs on proposed research studies, research plans and research strategies relating to the health consequences of military service in the Southwest Asia theater of operations during the Gulf War.
The Committee will review VA program activities related to Gulf War Veterans' illnesses and updates on relevant scientific research published since the last Committee meeting. The session on June 18 will be devoted to discussions of imaging techniques currently in use to treat Gulf War Veterans, exposures to organophosphates, and updates on VA Gulf War research initiatives. The research presentations on June 19 will
The meeting will include time reserved in the afternoon on both days for public comments. Public comments will be limited to five minutes each. A sign-up sheet will be made available for those who wish to speak and will be accommodated on a first-come, first-served basis. Individuals who speak are invited to submit a 1–2 page summary of their comments at the time of the meeting for inclusion in the official meeting record. Members of the public may also submit written statements for the Committee's review to Dr. Victor Kalasinsky, Designated Federal Officer, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC, or by email at
By Direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under Public Law 92–463 (Federal Advisory Committee Act) that a meeting of the Clinical Science Research and Development Service Cooperative Studies Scientific Evaluation Committee will be held on July 12, 2012, at the Sheraton Suites Old Town Alexandria, 801 North Saint Asaph Street, Alexandria, VA. The meeting will begin at 8:30 a.m. and end at 2 p.m.
The Committee advises the Chief Research and Development Officer through the Director of the Clinical Science Research and Development Service on the relevance and feasibility of proposed projects and the scientific validity and propriety of technical details, including protection of human subjects.
The session will be open to the public for approximately 30 minutes at the start of the meeting for the discussion of administrative matters and the general status of the program. The remaining portion of the meeting will be closed to the public for the Committee's review, discussion and evaluation of research and development applications.
During the closed portion of the meeting, discussions and recommendations will deal with qualifications of personnel conducting the studies, staff and consultant critiques of research proposals and similar documents and the medical records of patients who are study subjects, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. As provided by section 10(d) of Public Law 92–463, as amended, closing portions of this meeting is in accordance with 5 U.S.C. 552b(c)(6) and (c)(9)(B).
Those who plan to attend should contact Dr. Grant Huang, Deputy Director, Cooperative Studies Program (10P9CS), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, at (202) 443–5609 or by email at
By Direction of the Secretary.
Consumer Product Safety Commission.
Final rule.
The Consumer Product Safety Commission (“CPSC,” “Commission,” or “we”) is issuing a final rule establishing requirements for the periodic audit of third party conformity assessment bodies as a condition of their continuing accreditation.
The final rule implements a section of the Consumer Product Safety Act (“CPSA”), as amended by the Consumer Product Safety Improvement Act of 2008 (“CPSIA”).
This rule is effective on July 23, 2012.
Randy Butturini, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; 301–504–7562; email:
In the
Section 14(a)(1) of the CPSA (15 U.S.C. 2063(a)(1)) requires that the manufacturer (including the importer) and the private labeler, if any, of a product that is subject to an applicable consumer product safety rule under the CPSA, or any similar rule, ban, standard, or regulation under any other Act enforced by the CPSC, issue a certificate, which certifies “based on a test of each product or upon a reasonable testing program, that such product complies with all rules, bans, standards, or regulations applicable to the product under this Act or any other Act enforced by the Commission” and specifies each rule, ban, standard, or regulation applicable to the product. This requirement applies to any such product manufactured on or after November 12, 2008.
Section 14(a)(2) of the CPSA establishes a third party testing requirement for children's products that are subject to a children's product safety rule. In general, section 14(a)(2) of the CPSA states, in part, that every manufacturer or private labeler (if the children's product bears a private label) of such products shall submit sufficient samples of the product, or samples that are identical in all material respects to the product, to an accredited third party conformity assessment body to be tested for compliance with such children's product safety rule.
In the
Section 14(a)(3) of the CPSA establishes various timelines for accreditation and requires the Commission to publish a notice of the requirements for accreditation of third party conformity assessment bodies to assess conformity with specific laws or regulations. We have published several notices of requirements in the
Section 14(i)(1) of the CPSA requires the Commission to establish “requirements for the periodic audit of third party conformity assessment bodies as a condition for the continuing accreditation of such conformity assessment bodies” under section 14(a)(3)(C) of the CPSA. This final rule implements section 14(i)(1) of the CPSA.
The proposed rule would create a new part 1112, titled, “Audit Requirements for Third Party Conformity Assessment Bodies,” in Title 16 of the Code of Federal Regulations. Six commenters responded to the proposal.
We describe and respond to the comments in this section of this document and also describe the final rule. A summary of each of the commenter's topics is presented, and each topic is followed by staff's response. For ease of reading, each topic will be prefaced with a numbered “Comment”; and each response will be prefaced by a corresponding numbered “Response.” Each “Comment” is numbered to help distinguish between different topics. The number assigned to each comment is for organizational purposes only and does not signify the comment's value, or importance, or the order in which it was received. Comments on similar topics are grouped together.
Most commenters addressed specific sections in the proposed rule, or referenced issues associated with a particular term in a proposed section, but not directly relevant to the proposed section itself. We address those comments in this section. However, on our own initiative, we have renumbered the sections and renamed the part in which the sections will be placed. For example, proposed § 1112.1, titled, “Purpose,” is now renumbered as § 1112.20. As another example, the proposed rule would have created a part 1112, titled, “Audit Requirements for Third Party Conformity Assessment Bodies”; however, the final rule divides the audit requirements into two subparts and renames part 1112, “Requirements Pertaining to Third Party Conformity Assessment Bodies.” We have taken this action because, elsewhere in this issue of the
Proposed § 1112.1 (now renumbered as § 1112.30 in the final rule) would describe the purpose of the audit rule. In brief, proposed § 1112.1 would state that part 1112 “establishes the audit requirements for third party conformity assessment bodies pursuant to section 14(d)(1) of the Consumer Product Safety Act (CPSA) (15 U.S.C. 2063(d)(1)).” Under section 14(i)(1) of the CPSA, compliance with the requirements in part 1112 would be a condition of continuing the accreditation of such third party conformity assessment bodies.
(Comment 1)—One commenter noted that the proposal referred to certifying organizations under the Labeling of Hazardous Art Materials Act (LHAMA). The commenter stated that art and craft companies cannot afford both LHAMA and what the commenter called “redundant” testing under the CPSIA. The commenter said that retailers that do not recognize the Art and Creative Materials Institute (ACMI) as a third party conformity assessment body are demanding additional tests. The commenter said the CPSC should consider the acceptance of current certification programs, such as ACMI's, to be in full compliance with the CPSIA.
(Response 1)—Although issues related to product testing are outside the scope of the audit rule, the commenter may have misinterpreted the statute and the proposed rule's reference to certifying organizations under LHAMA. Section 14(f)(2)(C) of the CPSA states that certifying organizations, as defined in appendix A to 16 CFR 500.14(b)(8), are third party conformity assessment bodies with respect to certifying art materials and art products to Federal Hazardous Substances Act (FHSA) requirements. Current certification programs, such as ACMI's, are for certifying to LHAMA rules. Section 14 of the CPSA, however, also requires children's products to be tested for compliance to children's product safety rules; and it defines “children's product safety rules” as “a consumer product safety rule under [the CPSA] or similar rule, regulation, standard, or ban under any other Act enforced by the Commission, including a rule declaring a consumer product to be a banned hazardous product or substance.” Thus, because the definition of “children's product safety rule” is broader than certification of art materials and art products to FHSA requirements, testing under section 14 of the CPSA is not “redundant” to LHAMA certification.
Therefore, the final rule retains the text of the “Purpose” section, although we have replaced “part,” with “subpart,” to reflect that the audit requirements are now subpart C of part 1112. Additionally, on our own initiative, we have:
• Changed the title from “Purpose,” to “What Is the Purpose of this Subpart?” to be consistent with the style used for other headings in the final rule;
• Revised the second sentence stating that “Compliance with these requirements is condition for the continuing accreditation * * *” to “Compliance with these requirements is a condition of the continuing accreditation * * *”; and
• Revised the third sentence by inserting a comma between “Labeling of Hazardous Art Materials Act” and “even.”
These changes are not substantive, and the latter two changes were made for grammatical purposes.
Proposed § 1112.3 would define various terms used in part 1112. The final rule now places all definitions in § 1112.3 in subpart A, “Purpose and Definitions.”
Proposed § 1112.3(a) would define “accreditation” as:
A procedure by which an authoritative body gives formal recognition that a third party conformity assessment body is competent to perform specific tasks. Accreditation recognizes a third party conformity assessment body's technical competence and is usually specific for tests of the systems, products, components, or materials for which the third party conformity assessment body claims proficiency.
The preamble to the proposed rule explained that the definition was based on a description used by the International Organization for Standardization (ISO) in relation to ISO Standard ISO/IEC 17025:2005, “General Requirements for the Competence of Testing and Calibration Laboratories,” except that it uses the term “third party conformity assessment body,” instead of “lab,” and refers to “technical competence,” instead of “technical capability” (see 74 FR at 40785). We explained that the term “third party conformity assessment body” is used in section 14(a)(3)(C) of the CPSA, and that we were aware that ISO/IEC 17025:2005, by reference, incorporates the definitions set forth in ISO/IEC 17000:2004, “Conformity Assessment—Vocabulary and General Principles,” but we decided against adopting the definition of “accreditation” in ISO/IEC 17000 because it incorporates several other definitions by implied reference.
(Comment 2)—One commenter would revise the first sentence of the definition to define “accreditation” as: “A procedure by which an authoritative body gives formal recognition that a third party conformity assessment body meets competence requirements to perform specific tasks.” The commenter explained that accreditation is “not a subjective assessment of competence based on whatever the individual assessors think is important, but rather is a requirements-based activity.”
(Response 2)—We agree with the commenter, and we have revised the definition accordingly.
Additionally, on our own initiative, we have revised the numbering in § 1112.3, generally, to eliminate the paragraph designations before each defined term. We removed the paragraph designations to be more consistent with accepted formats for regulations.
(Comment 3)—One commenter suggested revising the definition of “accreditation” to “meet the international requirement,” but they did not explain what is meant by “the international requirement.”
(Response 3)—For purposes of this response, we assume that the commenter's reference to “international requirement” means the definitions used in ISO/IEC 17000:2004, “Conformity Assessment—Vocabulary and General Principles.” Section 5.5 of ISO/IEC 17000: 2004 defines “accreditation” as “third party attestation (5.2) related to a conformity assessment body (2.5) conveying a formal demonstration of its competence to carry out specific conformity assessment tasks.” As we explained in the preamble to the proposed rule, ISO/IEC's definition of “accreditation” incorporates several other definitions by implied reference; therefore, we chose to adopt a more detailed definition of the term, rather than adopt a definition from ISO/IEC 17000, whose terms would compel the reader to consult even more definitions before they could understand how the rule defines “accreditation” (
Alternatively, because the commenter also discussed requiring reciprocity, it is possible that they meant to suggest that we amend the definition of “accreditation” to include a reciprocity requirement. As discussed later in part II.B of this preamble in the response to
Consequently, we decline to revise the definition as suggested by the commenter.
(Comment 4)—Another commenter stated that ISO/IEC 17025:2005 and ISO 17000:2004 have definitions that are the result of a consensus and are “universally accepted and understood.” The commenter said that the proposal's use of different definitions or modification of ISO definitions “will create unnecessary problems in the process of accreditation and audits and should be avoided.”
(Response 4)—As the preamble to the proposed rule explained (
Furthermore, because the commenter did not identify how any proposed definition would cause “unnecessary problems,” we decline to revise the rule as suggested by the commenter.
Proposed § 1112.3(b) would define “accreditation body” as “an entity that accredits or has accredited a third party conformity assessment body as meeting, at a minimum, the International Organization for Standardization (ISO) Standard ISO/IEC 17025:2005, `General Requirements for the Competence of Testing and Calibration Laboratories,' ” and any test methods or consumer product safety requirements specified in the relevant notice of requirements issued by the Commission, and is a signatory to the International Laboratory Accreditation Cooperation–Mutual Recognition Arrangement. The preamble to the proposed rule explained that the proposed definition of “accreditation body” reflects the basic elements that the Commission has specified in its notices of requirements for the accreditation of third party conformity assessment bodies. The preamble also explained that the phrase “at a minimum” recognizes that some accreditation bodies, as part of the accreditation process, may demand that a third party conformity assessment body demonstrate its conformity with specific methods or programs, as well as demonstrate compliance with ISO/IEC 17025:2005 and with any test methods identified in the relevant notices of requirements issued by the Commission.
(Comment 5)—Several commenters addressed issues relating to ISO/IEC 17025:2005 rather than the definition itself.
One commenter said that ISO/IEC 17025:2005 is a “good baseline,” but nevertheless, asserted that the CPSC should create a mechanism to supervise and control the acceptance of government-owned or government-controlled conformity assessment bodies and firewalled conformity assessment bodies to help ensure their protection against undue influence. (A firewalled conformity assessment body is one that is owned, managed, or controlled by a manufacturer or private labeler of a children's product to be tested by the conformity assessment body for certification purposes and that seeks accreditation under the additional statutory criteria for “firewalled” conformity assessment bodies.)
(Response 5)—Although the commenter's focus on issues of undue influence goes beyond the scope of the rule, we note that the statutory accreditation requirements pertaining to undue influence and government-owned, government-controlled, and firewalled conformity assessment bodies exceed those of ISO/IEC 17025:2005. Section 14(f)(2)(D) of the CPSA requires firewalled conformity assessment bodies to have procedures to ensure that test results are protected from undue influence by the manufacturer, private labeler, or other interested party. Conformity assessment bodies that apply for CPSC approval as firewalled laboratories must submit to the Commission copies of their training documents, showing how employees are trained to notify the Commission immediately and confidentially of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the third party conformity assessment body's test results.
For governmental laboratory applicants, CPSC staff engages the governmental entities relevant to requests for CPSC acceptance to obtain the necessary assurances of compliance with the statutory requirements for governmental conformity assessment bodies (laboratories). Section 14(f)(2)(B) of the CPSA requires that governmental-owned or controlled conformity assessment bodies may apply for CPSC recognition of their accreditation and be subject to the audit provisions, if, among other requirements:
• The conformity assessment body's testing results are not subject to undue influence by any other person, including another governmental entity; and
• The conformity assessment body does not exercise undue influence over other governmental authorities controlling distribution of products based on outcomes of the conformity assessment body's conformity assessments.
(Comment 6)—One commenter said that there are substantial differences among accreditation bodies. In some cases, the conformity assessment body and the accreditation body are both government-controlled. The commenter added that H.R. 2749, titled, the “Food Safety Enhancement Act of 2009,” has stricter requirements for firewalled conformity assessment bodies, including a restriction on such laboratories certifying their own products. The commenter suggested that the CPSC designate individual accreditation bodies based on specific criteria to prove their competency with CPSC requirements.
(Response 6)—The Commission, through its notices of requirements, has required all third party conformity assessment bodies to be accredited by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation-Mutual Recognition Arrangement (ILAC–MRA) and further mandated that the scope of the accreditation include testing relative to the appropriate test method(s) or regulation(s) cited in the notice of requirements. All ILAC–MRA accreditation bodies must maintain conformity with the current version of ISO/IEC 17011 and related ILAC guidance documents and ensure that all accredited laboratories comply with ISO/IEC 17025:2005 and applicable ILAC policy and guidance documents. This ensures some degree of similarity
As for the Food Safety Enhancement Act of 2009, it would restrict testing laboratories' certification activities. However, under section 14 of the CPSA and CPSC regulations at 16 CFR part 1110, third party conformity assessment bodies do not issue certifications; accordingly, the bill's potential requirements are not directly relevant here. Additionally, nothing in section 14 of the CPSA prohibits firewalled conformity assessment bodies from testing a manufacturer's own products.
Proposed § 1112.3(c) would define “audit” as “a systematic, independent, documented process for obtaining records, statements of fact, or other relevant information, and assessing them objectively to determine the extent to which specified requirements are fulfilled.” The preamble to the proposed rule (74 FR at 40785) explained that this definition is almost identical to the definition of “audit” in ISO/IEC 17000. Proposed § 1112.3(c) also would explain that, for purposes of part 1112, an audit consists of two parts: (1) An examination by an accreditation body to determine whether the third party conformity assessment body meets or continues to meet the conditions for accreditation (a process known more commonly as a “reassessment,” and that the remainder of this preamble will refer to as a “reassessment”); and (2) the resubmission of the “Consumer Product Conformity Assessment Body Acceptance Registration Form” (CPSC Form 223) by the third party conformity assessment body and the CPSC's examination of the resubmitted CPSC Form 223 (that the remainder of this preamble will refer to as an “examination” by the CPSC).
We received no comments on the proposed definition. However, on our own initiative, we have revised the phrase, “is composed of two parts,” to read “consists of two parts.” This change is for grammatical purposes only. Additionally, as stated earlier in part II.A of this preamble in the response to Comment 2, we have removed the paragraph designation; thus, the definition of “audit” is now at § 1112.3 of the final rule rather than at § 1112.3(c) (as proposed).
Proposed § 1112.3(d) would define “Commission” to mean the Consumer Product Safety Commission.
We received no comments on this provision, and therefore, other than removing the paragraph designation (
Proposed § 1112.3(e) would define “quality manager” as an individual “(however named) who, irrespective of other duties and responsibilities, has defined responsibility and authority for ensuring that the management system related to quality is implemented and followed at all times and who has direct access to the highest level of management at which decisions are made on the conformity assessment body's policy or resources.” The preamble to the proposed rule explained that this definition is patterned after the explanation of the quality manager's role in ISO/IEC 17025:2005, section 4.1.5 (74 FR at 40786).
We received no comments on this provision, and therefore, other than removing the paragraph designation, we have finalized the provision without change.
Proposed § 1112.3(f) would explain that, unless otherwise stated, the definitions of section 3 of the CPSA, and additional definitions in the CPSIA, are applicable for purposes of part 1112 of this title. Thus, for example, the CPSIA's definition of “third party conformity assessment body,” which includes independent conformity assessment bodies, government-owned or government-controlled conformity assessment bodies (subject to certain requirements in section 14(f)(2)(B) of the CPSA), and “firewalled” conformity assessment bodies (subject to certain requirements in section 14(f)(2)(D) of the CPSA), would apply to part 1112; and the term “third party conformity assessment body” in part 1112 would be understood to include all three types of conformity assessment bodies.
(Comment 7)—One commenter stated that referring to firewalled and government-owned or government-controlled conformity assessment bodies as “third party conformity assessment bodies” misuses a term with a specific definition. The commenter said that there are differences in how conformity assessment bodies operate and opined further that the CPSC “needs to address those differences, not only in their accreditation requirements, but also in their audit requirements.”
(Response 7)—Although the commenter did not identify a particular provision, we assume that the commenter was addressing part of the preamble to the proposed rule in which the Commission explained that under proposed § 1112.3(f), “unless otherwise stated, the definitions of section 3 of the CPSA and additional definitions in the CPSIA apply for purposes of part 1112 of this title” (
Thus, with respect to the definition of “third party conformity assessment body,” the preamble to the proposed rule was referring to the section 14(f)(2) of the CPSA. Because the statute considers government-owned or government-controlled conformity assessment bodies and firewalled conformity assessment bodies to fall under “third party conformity assessment body” in section 14(f)(2) of the CPSA, we decline to revise the rule as suggested by the comment.
As for establishing different accreditation requirements, sections 14(f)(2)(B) and (f)(2)(D) of the CPSA already establish different requirements for government-owned or government-controlled conformity assessment bodies and firewalled conformity assessment bodies. Furthermore, the Commission, through its notices of requirements for the accreditation of third party conformity assessment bodies, establishes accreditation requirements. Thus, the commenter's request for different accreditation requirements is outside the scope of this rule.
With respect to different audit requirements, the commenter did not suggest any changes to the rule that would apply to government-owned, government-controlled, or firewalled conformity assessment bodies. Consequently, we have no basis to establish different audit requirements
Proposed § 1112.5 (now renumbered as § 1112.31 in the final rule) would explain that the requirements in part 1112 apply to third party conformity assessment bodies operating pursuant to section 14(a)(2) of the CPSA, and it would reiterate that third party conformity assessment bodies must comply with the audit requirements as a condition of the Commission's acceptance of their accreditation.
We received no comments on this provision, and other than to renumber it, we have finalized the provision without change.
Proposed § 1112.3(c) would explain that, for purposes of part 1112, an audit consists of two parts: (1) An examination by an accreditation body to determine whether the third party conformity assessment body meets or continues to meet the conditions for accreditation (the “reassessment” portion of the audit); and (2) the resubmission of the “Consumer Product Conformity Assessment Body Acceptance Registration Form” (CPSC Form 223) by the third party conformity assessment body and the CPSC's examination of the resubmitted CPSC Form 223. If the third party conformity assessment body is a “firewalled” conformity assessment body or a government-owned or government-controlled conformity assessment body, the CPSC's examination may include verification to ensure that the entity continues to meet the appropriate statutory criteria pertaining to such conformity assessment bodies.
Under proposed § 1112.7(a) (now renumbered as § 1112.33(a) in the final rule), the reassessment portion of the audit may cover the management systems, specific tests, types of tests, calibrations, or types of calibrations that are the subject of the third party conformity assessment body's accreditation. The proposal also stated that the reassessment portion must examine the third party conformity assessment body's management systems to ensure that the third party conformity assessment body is free from any undue influence regarding its technical judgment.
(Comment 8)—One commenter noted that the text might be interpreted to require that only the management system from ISO/IEC 17025:2005 be met. The commenter said that we should require applicants to fulfill all requirements in ISO/IEC 17025:2005 rather than the management requirements.
(Response 8)—We interpret the commenter as referring to the preamble to the proposed rule (74 FR at 40786), which states that “Under proposed § 1112.7(a), the reassessment portion of the audit may cover the management systems, specific tests * * *.” and referencing proposed § 1112.7(a), which also uses the word “may.”
During the reassessment portion of the audit, the accreditation body examines the competence of the entire operation of the conformity assessment body, including the competence of the personnel, the validity of the conformity assessment methodology, and the validity of the conformity assessment results. We agree with the commenter that the use of the word “may” in these sections could be misinterpreted as not requiring compliance by the conformity assessment body with all sections of ISO/IEC 17025:2005, and the proposed rule was not intended to suggest that the reassessment could be limited to management systems alone. To the contrary, the proposal's mention of “specific tests, types of tests, calibrations, or types of calibrations” was to show that a reassessment extends to technical requirements too. Consequently, we have revised § 1112.33(a) to state that the reassessment portion of an audit of a conformity assessment body by an accreditation body covers management requirements and technical requirements. The remainder of § 1123.33(a), pertaining to examination of the third party conformity assessment body's management systems, is unchanged.
(Comment 9)—Several commenters said that because products must be certified as being in compliance, the principles for impartiality and undue influence need to come from ISO/IEC Guide 65,
One commenter added that the Occupation Safety and Health Administration (OSHA) has a National Recognized Testing Laboratory (NRTL) program that uses ISO/IEC Guide 65's requirements to review a laboratory's independence. Rigorous evaluation of the independence of a laboratory should be required annually or at least with surveillance and reassessment visits, the commenter urged.
Another commenter remarked that OSHA's NRTL and the U.S. Federal Communications Commission's (FCC's) Telecommunications Body Certification (TBC) programs could be used as sources.
Another commenter suggested that we consider the principles of product certification outlined in the American National Standards Institute document, titled, “National Conformity Assessment Principles for the United States.” The commenter said that manufacturer certification based on testing by laboratories accredited to ISO/IEC 17025:2005 can ensure that a product conforms to a required standard at the time of testing, but it “does not ensure that the product continues to conform to the standard throughout production and distribution.”
(Response 9)—The commenters may have misinterpreted the rule. Conformity assessment bodies test products, whereas domestic manufacturers and importers are responsible for certifying that their products comply with all rules, bans, standards, or regulations under the CPSA or any other Act enforced by the Commission under existing CPSC regulations at 16 CFR part 1110. Consequently, with respect to the comment regarding ISO/IEC Guide 65, we note that ISO/IEC Guide 65 provides requirements for certification bodies, which have different requirements and responsibilities than third party conformity assessment bodies (which, under section 14 of the CPSA and our regulations at 16 CFR part 1110, test children's products but do not issue certificates for such products), including attestations of conformity and surveillance activities. The requirements to protect impartiality and conflict of interest in ISO/IEC Guide 65 are tailored toward those functions.
As for the suggestion that a conformity assessment body submit evidence of its fulfillment of ISO/IEC 17025:2005 section 4.1.5.b. as part of its application to the CPSC, both initially and with ongoing audits, section 102(c) of the CPSIA states that in establishing standards for accreditation of a third party conformity assessment body, the Commission may consider standards and protocols for accreditation of such conformity assessment bodies by independent accreditation organizations that are in effect on the date of enactment (August 14, 2008). Accreditation of third party conformity assessment bodies may be conducted either by the Commission or by an independent accreditation organization designated by the Commission. In our notices of requirements for the accreditation of third party conformity assessment bodies, we have established accreditation to ISO/IEC 17025:2005, with the accreditation conducted by an accreditation body that is a signatory to the ILAC–MRA as a baseline requirement for accreditation. Thus, we have designated accreditation organizations (accreditation bodies) to conduct accreditation of third party conformity assessment bodies. Records related to accreditation assessments and reassessments are maintained by the accreditation bodies and the third party conformity assessment bodies.
Consequently, the commenter's suggestion regarding evidence of a third party conformity assessment body's fulfillment of ISO/IEC 17025:2005 requirements is unnecessary because § 1112.39 requires a third party conformity assessment body to retain records related to the last three reassessments conducted by the accreditation body and make such records available to the CPSC upon request. Records of nonconformities related to safeguards against undue influence (or any ISO/IEC 17025:2005 requirement), as well as the corrective actions, must be made available upon the CPSC's request.
In addition, § 1112.37 requires the quality manager at the third party conformity assessment body to notify the CPSC within five business days of an accreditation body's notification of suspension, reduction, or withdrawal of accreditation. Failure to do so may lead to CPSC withdrawal of the laboratory as a CPSC-recognized third party conformity assessment body.
As for the comment regarding a product's continued conformity to standards throughout the product's production and distribution, such matters are outside the scope of this audit rule; instead, they are addressed in a separate rulemaking pertaining to “Testing and Labeling Pertaining to Product Certification” (75 FR 28336 (May 20, 2010); 76 FR 69482 (November 8, 2011)).
Proposed § 1112.7(b) (now renumbered as § 1112.33(b) in the final rule) would require the third party conformity assessment body to have the accreditation body that accredited the third party conformity assessment body perform the reassessment portion of the audit. For example, if a third party conformity assessment body was accredited for a particular scope by an accreditation body named AB–1, then AB–1 would conduct the reassessment. If, however, the same third party conformity assessment body changes its accreditation for the same scope, such that it becomes accredited by a different accreditation body, named AB–2, then AB–2 would conduct the reassessment.
The preamble to the proposed rule also suggested that accreditation bodies performing reassessments conform to ISO/IEC 17011 titled, “Conformity Assessment—General Requirements for Accreditation Bodies Accrediting Conformity Assessment Bodies” (74 FR at 40787). The preamble to the proposed rule stated that certain provisions in ISO/IEC 17011, notably sections 7.11, “Reassessment and Surveillance”; 7.12, “Extending Accreditation”; and 7.13, “Suspending, Withdrawing, or Reducing Accreditation,” may be relevant, particularly when conducting a reassessment (
(Comment 10)—One commenter stated that only a fraction of the many tests which a conformity assessment body may be accredited to perform actually are examined during any single reassessment. The commenter said it is up to the accreditation body performing the reassessment to decide which tests to undertake. In addition, the commenter asked whether a conformity assessment body must insist that the accreditation body reassess every two years all CPSC tests to which the conformity assessment body is accredited.
(Response 10)—The commenter may have confused reassessment with surveillance. ISO/IEC 17011 defines “assessment” as “a process undertaken by an accreditation body to assess the competence of a conformity assessment body, based on particular standard(s) and/or other normative documents and for a defined scope of accreditation.” (See ISO/IEC 17011:2004,
“Surveillance” is defined as “a set of activities, except reassessment, to monitor the continued fulfillment by accredited CABs of requirements for accreditation” (
We note that, on our own initiative, we have revised the last sentence in § 1112.33(b), by inserting a comma between “changes it accreditation” and “so that it becomes accredited. * * *” This change is for grammatical purposes.
As for the examination portion of the audit, proposed § 1112.7(c) (now renumbered as § 1112.33(c) in the final rule) would explain that the third party conformity assessment body must have the examination portion of the audit conducted by the Commission. The examination portion of the audit would consist of resubmission of CPSC Form 223 by the third party conformity assessment body to the CPSC and the CPSC's examination of the resubmitted form. Resubmission of the CPSC Form 223 would occur in two ways: (1) There would be a continuing obligation to ensure that the information submitted on CPSC Form 223 is current, such that a third party conformity assessment body would submit a new CPSC Form 223 whenever the information changes; and (2) In the absence of any changes that would necessitate the submission of a new CPSC Form 223, the third party conformity assessment body would reregister at the CPSC every 2 years, using CPSC Form 223.
Additionally, proposed § 1112.7(c) would contain specific requirements for the CPSC's examination of “firewalled” and government-owned or government-controlled conformity assessment bodies. For “firewalled” conformity assessment bodies, proposed § 1112.7(c)(1) would state that the examination portion of the audit conducted by the CPSC may include verification to ensure that the “firewalled” conformity assessment body continues to meet the criteria set forth in section 14(f)(2)(D) of the CPSA. Thus, for example, under proposed § 1112.7(c)(1), we could examine whether a “firewalled” conformity assessment body's established procedures continue to exist; and likewise, it could review its mechanisms for confidential reporting of allegations of undue influence. For government-owned or government-controlled conformity assessment bodies, proposed § 1112.7(c)(2) would state that the examination portion of the audit conducted by the CPSC may include verification that the government-owned or government-controlled conformity assessment body continues to meet the five criteria set forth in section 14(f)(2)(B) of the CPSA. Thus, for example, under proposed § 1112.7(c)(2), the CPSC could examine whether a government-owned conformity assessment body has procedures in place to ensure that its testing results are not subject to undue influence by any other person.
We received no comments on this provision, and aside from renumbering it as § 1112.33(c), we finalized the provision without change. Elsewhere in this issue of the
Proposed § 1112.9(a) (now renumbered as § 1112.35 in the final rule) would state that, at a minimum, each third party conformity assessment body must be reassessed at the frequency established by its accreditation body for reassessments of the accreditation. For example, if the accreditation body would conduct a reassessment to reexamine a third party conformity assessment body's accreditation after 2 years, the minimum reassessment frequency for that third party conformity assessment body would be 2 years.
As for the examination portion of the audit conducted by the CPSC, proposed § 1112.9(b)(1) would require each third party conformity assessment body to ensure that the information it submitted on CPSC Form 223 is current and submit a new CPSC Form 223 whenever the information, such as the third party conformity assessment body's address, telephone number, or ownership, changes. In the absence of any changes that would necessitate the submission of a new CPSC Form 223, proposed § 1112.9(b)(2) would require the third party conformity assessment body to reregister at the CPSC every 2 years, using CPSC Form 223.
On our own initiative, we have decided against issuing a final rule regarding the timing of the examination portion of the audit. After the publication of the proposed rule in the
In general, once the accreditation body has conducted its reassessment of a third party conformity assessment body, the accreditation body will present its initial findings, along with any supporting evidence, to the quality manager for the third party conformity assessment body. The accreditation body may give the third party conformity assessment body's personnel the opportunity to present any objections they have to the initial findings. The accreditation body may adjust its findings in response to any valid objections.
When the accreditation body presents its findings to the third party conformity assessment body, proposed § 1112.11(a) would require the third party conformity assessment body's quality manager to receive the findings and, if necessary, initiate corrective action in response to the findings. Proposed § 1112.11(b) would require the quality manager to prepare a resolution report; the resolution report would identify the corrective actions taken and any follow-up activities. If immediate corrective action is necessary (as may be the case if the findings identify problems associated with incorrect procedures, invalid actions, or the creation or use of invalid data), proposed § 1112.11(b) would require the quality manager to document that they notified the relevant parties within the third party conformity assessment body to take immediate corrective action and also to document the action(s) taken.
Proposed § 1112.11(c) would require the quality manager to notify the CPSC if the accreditation body decides to reduce, suspend, or withdraw the third party conformity assessment body's accreditation and the reduction, suspension, or withdrawal of accreditation is relevant to the third party conformity assessment body's activities pertaining to a CPSC regulation or test method. The notification would be sent to the Assistant Executive Director, Office of Hazard Identification and Reduction, within five business days of the accreditation body's notification to the third party conformity assessment body. If a third party conformity assessment body does not notify the CPSC in the manner that proposed § 1112.11(c) would require, then such noncompliance may be grounds for withdrawal of acceptance of the accreditation by the Commission under section 14(e)(1)(B) of the CPSA for failure to “comply with an applicable protocol, standard, or requirement established by the Commission” under the audit regulations.
Proposed § 1112.11(d) would explain that the CPSC will notify the third party conformity assessment body if the CPSC finds that the third party conformity assessment body no longer meets the conditions contained in CPSC Form 223 or in the relevant statutory provisions applicable to that third party conformity assessment body. The CPSC also will identify the condition or statutory provision that is no longer met, specify a time by which the third party conformity assessment body must notify the CPSC of the steps that it intends to
Proposed § 1112.11(e) would describe the possible consequences if a third party conformity assessment body fails to remedy the deficiency in a timely fashion. In brief, proposed § 1112.11(e) would state that the CPSC “shall take whatever action it deems appropriate under the circumstances, up to and including withdrawing the CPSC's accreditation of the third party conformity assessment body or the CPSC's acceptance of the third party conformity assessment body's accreditation.”
We received no comments on this provision, but we have renumbered the provision as § 1112.37 in the final rule. Additionally, on our own initiative, we have:
• Revised the second sentence in § 1112.37(b), by changing “he/she notified” to “they notified”;
• Revised the address in § 1112.37(c), to replace “Maryland” with “MD”; and
• Revised the next-to-last sentence in § 1112.37(d), to change “correct the deficiency and when it will complete such steps” to “correct the deficiency, and indicate when it will complete such steps”; and
• Revised the last sentence in § 1112.37(d), by changing “he/she notified” to “they notified * * *.”
Proposed § 1112.13 (now renumbered as § 1112.39 in the final rule) would require a third party conformity assessment body to retain all records related to an audit and all records pertaining to the third party conformity assessment body's resolution of, or plans for, resolving nonconformities identified by the audit. Such nonconformities could be identified through a reassessment by an accreditation body or through an examination by the CPSC. The proposal also would require third party conformity assessment bodies to retain records related to the last three reassessments (or however many reassessments have been conducted, if the third party conformity assessment body has been reassessed less than three times) and make such records available to the CPSC, upon request.
The proposal also would require third party conformity assessment bodies to retain records related to the last three reassessments because such records may reveal whether a pattern of problems with accreditation exists, and the records may indicate how quickly such problems are addressed and resolved.
(Comment 11)—One commenter noted that ISO/IEC 17011 requires the accreditation body, rather than the conformity assessment body, to keep records of reassessments. The commenter said that it would be a burden on the accreditation body to make duplicates of these records and provide them to the conformity assessment body. The commenter said that a third party conformity assessment body could meet the objectives for record retention by keeping records of resolutions of nonconformities.
(Response 11)—It is not the intent of the recordkeeping provision for the conformity assessment body to make available to the CPSC all records associated with reassessments that are maintained by the accreditation body. However, assessment and reassessment records need to be retained by the conformity assessment body and made available, upon request, to the CPSC, and the records must include reports of nonconformities, as well as resolution of nonconformities. In addition, assessment/reassessment reports that the accreditation body provides to the conformity assessment body must be made available to the CPSC, upon request.
Consequently, we have amended the rule to clarify that the records retained should include any records received from the accreditation body, as well as the records generated by the conformity assessment body (such as a resolution report discussed in § 1112.39) related to reassessment. Additionally, on our own initiative, and for grammatical purposes, we have revised the last sentence in § 1112.39, by inserting a comma between “however many reassessments have been conducted” and “if the third party conformity assessment body has been reassessed less than three times” and by inserting another comma after “available to the CPSC” and “upon request.” We also have changed the words “relating to” to “related to” throughout § 1112.39; these changes are for grammatical purposes only.
Many comments pertained to issues outside the scope of the rule. For example, some comments addressed matters related to the initial accreditation of third party conformity assessment bodies. Other comments sought “reciprocity” between conformity assessment body (“laboratory”) programs administered by other federal agencies or other entities. We address those comments in this section.
(Comment 12)—A commenter suggested that the CPSC include reciprocity provisions as part of its accreditation criteria for laboratories to ensure a level playing field for testing organizations based in the United States with respect to foreign competition. Another commenter suggested that the CPSC amend the proposed requirements to include reciprocity provisions drawn from OSHA's NRTL and FCC's TCB programs. The commenter argued that the CPSC would be putting in place a “system of special privileges” that would damage laboratories in the United States because the third party conformity assessment body accreditation process is “open to all countries while other countries' conformity assessment systems are not open to U.S.-based laboratories,” thus creating “a one-way trading relationship and does not advantage all in the supply chain.” Another commenter expressed concern about a lack of reciprocity requirements, stating that foreign countries that wish to participate in a third party conformity assessment body program should be “mandated to offer recognition to U.S.-based laboratories for its certification programs.”
(Response 12)—We decline to revise the rule as suggested by the commenters. Issues regarding reciprocity, either of laboratory accreditation or test results, are outside the scope of this rule. Nothing in section 14(i)(1) of the CPSA authorizes the Commission to include reciprocity of laboratory accreditations or test results as falling within a “periodic audit of third party conformity assessment bodies as a condition for the continuing accreditation of such conformity assessment bodies under [section 14(a)(3)(C) of the CPSA].” Furthermore, we do not believe that we have the legal authority to impose a requirement on foreign governments.
(Comment 13)—One commenter expressed opposition to having accreditation by a signatory to the ILAC–MRA. The commenter said there is no reciprocal agreement with ILAC countries to accept accreditations by the American National Standards Institute, OSHA, or the Standards Council of Canada. The commenter said such acceptance by the CPSC would help to ensure the impartiality of certification.
(Response 13)—As explained in more detail in the response to Comment 6 above, accreditation by a signatory to the ILAC–MRA ensures some degree of similarity or uniformity among accreditation bodies, regardless of their geographical location, and it also ensures uniformity among third party conformity assessment bodies accredited by ILAC–MRA accreditation bodies. While the commenter is correct that there is no reciprocal agreement with ILAC countries to accept certain accreditations by entities in the United States or Canada, we do not believe that the audit requirement in the CPSIA gives the Commission the authority to demand reciprocity from foreign countries as a function of the audit process. An international agreement of that type is beyond the scope of this rulemaking.
As for the impartiality of certification, we note that the CPSA does not require conformity assessment bodies to issue certificates. Instead, under existing CPSC regulations at 16 CFR part 1110, domestic manufacturers and importers issue certificates.
(Comment 14)—One commenter noted that, in some “systems,” the same government entity is responsible for accreditation, testing, and certification. The commenter said that sections 14(f)(2)(B)(i) through (f)(2)(B)(v) of the CPSA (which lists the criteria for Commission acceptance of governmental conformity assessment bodies) should require extensive documentation during initial acceptance and during audits.
(Response 14)—The commenter did not elaborate on or describe what documentation would be necessary. In any event, the commenter's focus appears to be on revising the statutory or administrative criteria pertaining to government-owned or government-controlled conformity assessment bodies, rather than revising the proposed audit requirements. Thus, the comment is outside the scope of the rule.
(Comment 15)—One commenter stated that a Government Accountability Office (GAO) report issued in August 2009, assessing the effectiveness of enforcement of the CPSC's requirements, identified some resource limitations that could affect our ability to address and enforce requirements on foreign laboratories (both government-owned or government-controlled and firewalled conformity assessment bodies).
(Response 15)—The commenter may have confused laboratories whose tests form the basis for a manufacturer or importer to issue a children's product certificate, with CPSC laboratory testing in support of its import surveillance activities. The GAO report titled, “Better Information and Planning Would Strengthen CPSC's Oversight of Imported Products,” GAO–09–803 (available on the Internet at
(Comment 16)—One commenter suggested that to alleviate uncertainty and confusion, the CPSC should address the lack of a definition for a “reasonable testing program.”
(Response 16)—This comment is outside the scope of the audit provisions of section 14(i)(1) of the CPSA. This rulemaking implements section 14(i)(1) of the CPSA. A “reasonable testing program” is part of section 14(a)(1) of the CPSA, and we note that, in the
(Comment 17)—One commenter suggested that the CPSC reassert that compliance to the CPSIA is the manufacturer's responsibility, not the retailer's, and that retailers must accept testing from any accredited third party conformity assessment body approved by the CPSC.
(Response 17)—Current CPSC regulations, at 16 CFR part 1110, limit the persons required to comply with the certification requirements of section 14(a) of the CPSA to: the importer (for products manufactured outside of the United States) and to the domestic manufacturer (for products manufactured within the United States). Neither the CPSIA, nor the CPSA, require a retailer to accept product testing results from any accredited third party conformity assessment body whose accreditation is accepted by the CPSC.
Additionally, as we noted in the preamble to our proposed rule on “Testing and Labeling Pertaining to Product Certification” (75 FR 28336, 28337 (May 20, 2010)):
The Commission understands the economic ramifications that small businesses (and even large businesses) face regarding the testing costs required by section 102 of the CPSIA. Moreover, retailers and importers may be imposing significant additional testing cost on manufacturers by requiring that products that have already been tested by a third party conformity assessment body be tested again by a specific third party conformity assessment body selected by the retailer or importer. The Commission wants to emphasize to retailers and sellers of children's products that they can rely on certificates provided by product suppliers if those certificates are based on testing conducted by a third party conformity assessment body. Section 19(b) of the CPSA provides that a retailer or seller of a children's product shall not be subject to civil or criminal penalties for selling products that do not comply with applicable safety standards if it holds a certificate issued in accordance with section 14(a) of the CPSA to the effect that such consumer product conforms to all applicable consumer product safety rules, unless such person knows that such consumer product does not conform. The Commission notes that section 19(b) of the CPSA does not relieve any person of the obligation to conduct a corrective action should any product violate an applicable safety standard and need to be recalled.
The final rule contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
The OMB has approved the information collection requirements in this rule. The OMB control number pertaining to such approval is OMB 3041–0140, and it expires on December 31, 2012.
The CPSC has examined the impacts of the final rule under the Regulatory Flexibility Act (5 U.S.C. 601–612). The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the required information is minimal, and the costs associated with the audits are low, the Commission certifies that the final rule would not have a significant economic impact on a substantial number of small entities.
Section 14(i)(1) of the CPSA requires the Commission to establish requirements for the periodic audit of third party conformity assessment
The requirement for periodic audits will affect only third party conformity assessment bodies that intend to provide the CPSIA-required third party conformity assessment services for manufacturers or private labelers of children's products. Third party conformity assessment bodies that do not intend to offer third party conformance testing for children's products are not affected by the requirements for accreditation or periodic audits.
As of August 29, 2011, the CPSC had accepted the accreditations of 87 third party conformity assessment bodies located within the United States. This number could increase, somewhat, over the next year or so, as the remaining notices of requirements for accreditation are issued and the stays of enforcement of the requirements for third party testing (which the Commission issued pending clarification of the regulations and testing requirements) are lifted. Of the third party conformity assessment bodies located in the United States with CPSC-accepted accreditations, 12 are owned by large, foreign-based companies; 22 are large, U.S.-based companies; and the remaining 53 could be small businesses, according to the criteria established by the U.S. Small Business Administration (SBA), which, for a testing laboratory (NAICS code 54138), is a company with less than $12 million in annual revenue.
The notices of requirements issued by the CPSC for the accreditation of third party conformity assessment bodies state, as a baseline requirement, that third party conformity assessment bodies must be accredited by an accreditation body that is a signatory to the ILAC–MRA. ILAC is an international cooperation of laboratory accreditation bodies that seek to harmonize laboratory accreditation procedures to facilitate the acceptance of the testing results of accredited laboratories within and across national boundaries. The ILAC–MRA includes requirements for the initial assessment of laboratories, as well as periodic reassessments. Laboratories that do not submit to the periodic reassessments lose their accredited status.
Under the final rule, the periodic audit of a third party conformity assessment body would consist of two parts. The first part would be a reassessment by the accreditation body to determine whether it continues to meet the conditions of accreditation. The second part of the audit would be the resubmission to the CPSC of CPSC Form 223 and its review by the CPSC.
All signatories to the ILAC–MRA have requirements for the periodic reassessment of accredited laboratories. The ILAC–MRA harmonized procedures for surveillance and reassessment of accredited laboratories and recommended that the time between reassessments be no more than 60 months, provided that the accreditation body undertakes somewhat less comprehensive surveillance visits at least every 18 months. However, many accreditation bodies opt to undertake more frequent full reassessments, rather than conduct surveillance visits. According to ISO/IEC 17011, if an accreditation body does not conduct surveillance visits, full reassessments of accredited laboratories must take place at least once every 2 years.
The resubmission of CPSC Form 223 is intended to provide the Commission with an opportunity to ensure that the third party conformity assessment body continues to be accredited by an ILAC–MRA signatory and continues to comply with the requirements for firewalled and government-owned or controlled conformity assessment bodies, if applicable. However, because CPSC staff, in light of its experience with the accreditation process and software changes, has reconsidered when the form should be submitted, and therefore, the final rule does not state when the CPSC Form 223 must be resubmitted. Instead, such matters will be addressed in a separate rulemaking.
Costs associated with periodic audits include: The time cost of the assessor from the accreditation body; and his or her travel, lodging, and meal expenses incurred while conducting the reassessment. According to an accreditation body representative, a reassessment typically takes 2 to 3 days; and the cost charged to the third party conformity assessment body usually will be $3,000 to $4,000 per field (
Another expense of a reassessment by an accreditation body is the cost of the time spent by third party conformity assessment body personnel to cooperate with the assessors. This includes the time required to prepare or assemble documents needed by the auditors, as well as the time it takes to explain or demonstrate the procedures used at the third party conformity assessment body. No empirical estimates of this cost were found; however, the amount of time spent by third party conformity assessment body personnel during a reassessment could be close to the amount of time spent by the assessor. If the average reassessment takes 2.5 days (or 20 hours), and the wage of the employees involved is about $44 an hour, then the cost of the time of the third party conformity assessment body's personnel spent cooperating with the reassessment would be about $880. The median hourly wage of architecture and engineering occupations in testing laboratories (NAICS code 541380) is $31.65. U.S. Department of Labor, Bureau of Labor Statistics, National Occupational Employment and Wage Estimates, May 2008 (
The periodic audits required would cost third party conformity assessment bodies about $4,000 to $5,000 (rounded to the nearest thousand) per field in which the third party conformity assessment body is accredited. This expense includes the cost of the accreditation body's assessors, as well as the third party conformity assessment body personnel's time spent on the assessments and other costs, such as the cost of providing the materials required
As noted earlier, of the third party conformity assessment bodies based in the United States, for which the CPSC has recognized accreditations, 43 (or about 62 percent) appear to be small businesses, according to the SBA criteria. However, it is unlikely that the rule will have a significant adverse impact on many third party conformity assessment bodies. The only third party conformity assessment bodies that will seek accreditation for testing children's products are those that expect to receive substantial revenue from the third party testing requirement in the CPSA, as amended by the CPSIA. Those third party conformity assessment bodies that do not expect substantial revenue from the testing will not seek to be accredited for the testing, or they can choose not renew their accreditation—if they initially sought accreditation—but the revenue they expected did not materialize.
Given that the CPSC is relying upon accreditation bodies that are signatories to the ILAC–MRA to accredit and reassess the third party conformity assessment bodies, there are no realistic alternatives to the final rule that would lower substantially the cost of the periodic audits. The frequency of the reassessments of the third party conformity assessment bodies is determined by the accreditation bodies, not by the CPSC.
This final rule falls within the scope of the Commission's environmental review regulations at 16 CFR § 1021.5(c)(2), which provide a categorical exclusion from any requirement for the agency to prepare an environmental assessment or environmental impact statement for product certification rules.
The final rule becomes effective on July 23, 2012.
Consumer protection, Third party conformity assessment body, Audit.
For the reasons stated above, the Commission amends Title 16 of the Code of Federal Regulations by adding a new part 1112, subpart A and subpart C, to read as follows:
Pub. L. 110–314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.
Unless otherwise stated, the definitions of section 3 of the CPSA and additional definitions in the Consumer Product Safety Improvement Act of 2008, Public Law 110–314, apply for purposes of this part. The following definitions apply for purposes of this subpart:
(1) Accredits or has accredited a third party conformity assessment body as meeting, at a minimum, the International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC) Standard ISO/IEC 17025:2005, “General Requirements for the Competence of Testing and Calibration Laboratories,” and any test methods or consumer product safety requirements specified in the relevant notice of requirements issued by the Commission; and
(2) Is a signatory to the International Laboratory Accreditation Cooperation–Mutual Recognition Arrangement.
(1) An examination by an accreditation body to determine whether the third party conformity assessment body meets or continues to meet the conditions for accreditation (a process known more commonly as a “reassessment”); and
(2) The resubmission of the “Consumer Product Conformity Assessment Body Acceptance Registration Form” (CPSC Form 223) by the third party conformity assessment body and the Consumer Product Safety Commission's (“CPSC's”) examination of the resubmitted CPSC Form 223. If the third party conformity assessment body is owned, managed, or controlled by a manufacturer or private labeler (also known as a “firewalled” conformity assessment body) or is a government-owned or government-controlled conformity assessment body, the CPSC's examination may include verification to ensure that the entity continues to meet the appropriate statutory criteria pertaining to such conformity assessment bodies.
This subpart establishes the audit requirements for third party conformity assessment bodies pursuant to section
Except for certifying organizations described in 16 CFR 1500.14(b)(8), these audit requirements apply to third party conformity assessment bodies operating pursuant to section 14(a)(2) of the CPSA. Third party conformity assessment bodies must comply with the audit requirements as a continuing condition of the CPSC's acceptance of their accreditation.
(a) The reassessment portion of an audit must cover management requirements and technical requirements. Each reassessment portion of an audit also must examine the third party conformity assessment body's management systems to ensure that the third party conformity assessment body is free from any undue influence regarding its technical judgment.
(b) The third party conformity assessment body must have the reassessment portion of the audit conducted by the same accreditation body that accredited the third party conformity assessment body. For example, if a third party conformity assessment body was accredited by an accreditation body named AB–1, then AB–1 would conduct the reassessment. If, however, the same third party conformity assessment body changes its accreditation so that it becomes accredited by a different accreditation body named AB–2, then AB–2 would conduct the reassessment.
(c) The third party conformity assessment body must have the examination portion of the audit conducted by the CPSC. The examination portion of the audit will consist of resubmission of the “Consumer Product Conformity Assessment Body Acceptance Registration Form” (CPSC Form 223) by the third party conformity assessment body and the CPSC's examination of the resubmitted CPSC Form 223.
(1) For “firewalled” conformity assessment bodies, the CPSC's examination may include verification to ensure that the “firewalled” conformity assessment body continues to meet the criteria set forth in section 14(f)(2)(D) of the CPSA.
(2) For government-owned or government-controlled conformity assessment bodies, the CPSC's examination may include verification to ensure that the government-owned or government-controlled conformity assessment body continues to meet the criteria set forth in section 14(f)(2)(B) of the CPSA.
(a) At a minimum, each third party conformity assessment body must be reassessed at the frequency established by its accreditation body.
(b) [Reserved]
(a) When the accreditation body presents its findings to the third party conformity assessment body, the third party conformity assessment body's quality manager must receive the findings and, if necessary, initiate corrective action in response to the findings.
(b) The quality manager must prepare a resolution report identifying the corrective actions taken and any follow-up activities. If findings indicate that immediate corrective action is necessary, the quality manager must document that they notified the relevant parties within the third party conformity assessment body to take immediate corrective action and also document the action(s) taken.
(c) If the accreditation body decides to reduce, suspend, or withdraw the third party conformity assessment body's accreditation, and the reduction, suspension, or withdrawal of accreditation is relevant to the third party conformity assessment body's activities pertaining to a CPSC regulation or test method, the quality manager must notify the CPSC. Such notification must be sent to the Assistant Executive Director, Office of Hazard Identification and Reduction, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, within five business days of the accreditation body's notification to the third party conformity assessment body.
(d) If the CPSC finds that the third party conformity assessment body no longer meets the conditions specified in CPSC Form 223, or in the relevant statutory provisions applicable to that third party conformity assessment body, the CPSC will notify the third party conformity assessment body, identify the condition or statutory provision that is no longer met, and specify a time by which the third party conformity assessment body shall notify the CPSC of the steps it intends to take to correct the deficiency, and indicate when it will complete such steps. The quality manager must document that they notified the relevant parties within the third party conformity assessment body to take corrective action and also document the action(s) taken.
(e) If the third party conformity assessment body fails to remedy the deficiency in a timely fashion, the CPSC shall take whatever action it deems appropriate under the circumstances, up to and including withdrawing the CPSC's accreditation of the third party conformity assessment body or the CPSC's acceptance of the third party conformity assessment body's accreditation.
A third party conformity assessment body must retain all records related to an audit that it receives from an accreditation body regarding a reassessment and all records pertaining to the third party conformity assessment body's resolution of, or plans for, resolving nonconformities identified through a reassessment by an accreditation body or through an examination by the CPSC. A third party conformity assessment body also must retain such records related to the last three reassessments (or however many reassessments have been conducted, if the third party conformity assessment body has been reassessed less than three times) and make such records available to the CPSC, upon request.
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The Consumer Product Safety Commission (“CPSC,” “Commission,” or “we”) is issuing a proposed rule that would establish the requirements pertaining to the third party conformity assessment bodies (or “laboratories”) that are authorized to test children's products in support of the certification required by the Consumer Product Safety Act (CPSA), as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA). The proposed rule would establish the general requirements concerning third party conformity assessment bodies, such as the requirements and procedures for CPSC acceptance of the accreditation of a third party conformity assessment body, and it would address adverse actions against CPSC-accepted third party conformity assessment bodies. The proposed rule also would amend the audit requirements for third party conformity assessment bodies and would amend the Commission's regulation on inspections.
Comments in response to this notice of proposed rulemaking must be received by August 7, 2012.
Comments related to the Paperwork Reduction Act aspects of the instructional literature and marking requirements of the proposed rule should be directed to the Office of Information and Regulatory Affairs, OMB, Attn: CPSC Desk Officer, FAX: 202–395–6974, or emailed to
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Randy Butturini, Project Manager, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; 301–504–7562; email:
Section 14(a)(1) of the CPSA (15 U.S.C. 2063(a)(1)), as amended by the CPSIA (Pub. L. 110–314, 122 Stat. 3016), requires that the manufacturer and the private labeler, if any, of a product that is subject to an applicable consumer product safety rule under the CPSA, or any similar rule, ban, standard, or regulation under any other Act enforced by the CPSC, issue a General Conformity Certificate. The General Conformity Certificate certifies “based on a test of each product or upon a reasonable testing program, that such product complies with all rules, bans, standards, or regulations applicable to the product under this Act or any other Act enforced by the Commission,” and it specifies each rule, ban, standard, or regulation applicable to the product. 15 U.S.C. 2063(a)(1)(A).
Section 14(a)(2) of the CPSA states that, for any children's product that is subject to a children's product safety rule, every manufacturer of such children's product (and the private labeler if the children's product bears a private label) shall submit sufficient samples of the product, or samples that are identical in all material respects to the product, to an accredited third party conformity assessment body (or, “laboratory”) to be tested for compliance with such children's product safety rule. Section 14(a)(2)(B) of the CPSA requires the manufacturer or private labeler, based on such testing, to issue a certificate (“Children's Product Certificate”) certifying that such product complies with the children's product safety rule. Section 14(h) of the CPSA clarifies that, irrespective of certification, the product in question must actually comply with all applicable rules, regulations, standards, or bans enforced by the CPSC.
Section 14(a)(3) of the CPSA establishes various timelines for accreditation of the laboratories that may conduct third party tests of children's products and requires the Commission to publish “a notice of the requirements for accreditation of third party conformity assessment bodies to assess conformity” with specific laws or regulations. Under section 14(a)(3)(A) of the CPSA, the requirement for a manufacturer or private labeler of a children's product subject to a children's product safety rule to issue a certificate based on third party testing does not commence until “more than 90 days” after the Commission publishes a notice of requirements pertaining to the regulation or standard to which the children's product is subject.
The Commission has published several notices of requirements in the
Section 14(i)(1) of the CPSA requires the Commission to establish “requirements for the periodic audit of third party conformity assessment bodies as a condition for the continuing accreditation of such conformity assessment bodies” under section
Section 14(f)(2)(A) of the CPSA defines a “third party conformity assessment body” to mean a conformity assessment body that is not owned, managed, or controlled by the manufacturer or private labeler of a product assessed by the laboratory, unless such a laboratory has satisfied certain statutory criteria. Section 14(f)(2)(D) of the CPSA provides that a laboratory owned, managed, or controlled by a manufacturer or private labeler may be accepted by the Commission if the Commission makes certain findings, by order, concerning the laboratory's protections against undue influence by the manufacturer, private labeler, or other interested parties. In that case the laboratory is considered “firewalled.” Similarly, section 14(f)(2)(B) of the CPSA lists five criteria that a conformity assessment body owned or controlled in whole or in part by a government (or “governmental laboratory”) must satisfy for its accreditation to be accepted by the CPSC.
This proposed rule, if finalized, would establish the requirements related to CPSC acceptance of the accreditation of a laboratory for purposes of testing children's products under section 14 of the CPSA. The proposed requirements would be largely the same as the requirements that the CPSC has been using since the CPSIA's passage in August 2008. Among other things, the proposed rule also would delineate how a laboratory may voluntarily discontinue its participation with the CPSC, and it would establish the procedures for the suspension and/or withdrawal of CPSC acceptance of the accreditation of a laboratory. This proposed rule also would amend our rule titled, “Audit Requirements for Third Party Conformity Assessment Bodies” (“audit final rule”), which implements section 14(i)(1) of the CPSA, and is published elsewhere in this issue of the
We published 19 notices of requirements between August 14, 2008 and August 14, 2011.
The notices of requirements established the criteria and process for CPSC acceptance of accreditation of laboratories for testing children's products under section 14 of the CPSA. Each notice of requirements was specific to particular CPSC rules, bans, standards, or regulations, and/or it was specific to a standard established by the CPSIA. We have published the following notices of requirements:
• Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity With Part 1303 of Title 16, Code of Federal Regulations, 73 FR 54564 (Sept. 22, 2008).
• Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity With Part 1508, Part 1509, and/or Part 1511 of Title 16, Code of Federal Regulations, 73 FR 62965 (Oct. 22, 2008).
• Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity With Part 1501 of Title 16, Code of Federal Regulations, 73 FR 67838 (Nov. 17, 2008).
• Accreditation Requirements for Third Party Conformity Assessment Bodies to Test to the Requirements for Lead Content in Children's Metal Jewelry as Established by the Consumer Product Safety Improvement Act of 2008, 73 FR 78331 (Dec. 22, 2008).
• Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity With Parts 1203, 1510, 1512, and/or 1513 and Section 1500.86(a)(7) and/or (a)(8) of Title 16, Code of Federal Regulations, 74 FR 45428 (Sept. 2, 2009).
• Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity With the Limits on Total Lead in Children's Products, 74 FR 55820 (Oct. 29, 2009).
• Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity With Part 1505 and/or § 1500.86(a)(5) of Title 16, Code of Federal Regulations, 75 FR 22746 (April 30, 2010).
• Third Party Testing for Certain Children's Products; Infant Bath Seats: Requirements for Accreditation of Third Party Conformity, 75 FR 31688 (June 4, 2010); correction, 75 FR 33683 (June 15, 2010).
• Third Party Testing for Certain Children's Products; Infant Walkers: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 75 FR 35282 (June 21, 2010).
• Third Party Testing for Certain Children's Products; Carpets and Rugs: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 75 FR 42315 (July 21, 2010).
• Third Party Testing for Certain Children's Products; Vinyl Plastic Film: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 75 FR 42311 (July 21, 2010).
• Third Party Testing for Certain Children's Products; Mattresses, Mattress Pads, and/or Mattress Sets: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 75 FR 51020 (Aug. 18, 2010).
• Third Party Testing for Certain Children's Products; Clothing Textiles: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 75 FR 51016 (Aug. 18, 2010).
• Third Party Testing for Certain Children's Products; Youth All-Terrain Vehicles: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 75 FR 52616 (Aug. 27, 2010).
• Third Party Testing for Certain Children's Products; Children's Sleepwear, Sizes 0 Through 6X and 7 Through 14: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 75 FR 70911 (Nov. 19, 2010).
• Third Party Testing for Certain Children's Products; Full-Size Baby Cribs and Non-Full-Size Baby Cribs: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 75 FR 81789 (Dec. 28, 2010).
• Third Party Testing for Certain Children's Products; Toddler Beds: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 76 FR 22030 (April 20, 2011).
• Third Party Testing for Certain Children's Products; Toys: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 76 FR 46598 (Aug. 3, 2011).
• Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity With the Limits on Phthalates in Children's Toys and Child Care Articles, 76 FR 49286 (Aug. 10, 2011).
The notices of requirements explained the three types of third party conformity assessment bodies contemplated by section 14 of the CPSA: (1) Third party conformity assessment bodies that are not owned, managed, or controlled by a manufacturer or private labeler of a children's product to be tested by the
The notices of requirements have stated that, for a third party conformity assessment body to be accredited to test children's products under section 14 of the CPSA, it must be accredited to the International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC) Standard 17025:2005, “General requirements for the competence of testing and calibration laboratories.” The accreditation must be by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation—Mutual Recognition Arrangement (ILAC–MRA). A listing of ILAC–MRA signatory accreditation bodies is available on the Internet at:
(A description of the history and content of the ILAC–MRA approach and of the requirements of the ISO/IEC 17025:2005 laboratory accreditation standard is provided in the CPSC staff briefing memorandum, “Third Party Conformity Assessment Body Accreditation Requirements for Testing Compliance with 16 CFR Part 1501 (Small Parts Regulations),” dated November 2008, and available on the CPSC's Web site at:
The notices of requirements have stated that the CPSC maintains on its Web site an up-to-date listing of laboratories whose accreditation it has accepted, and the scope of each accreditation. Once we add a laboratory to that list, the laboratory may begin testing children's products to any test method or regulation included in the laboratory's scope of accreditation on the CPSC list, to support a Children's Product Certificate.
In addition to the baseline accreditation requirements, the notices of requirements have provided that firewalled laboratories must submit to the CPSC, copies, in English, of their training documents, showing how employees are trained that they may notify the CPSC immediately of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the laboratory's test results. Employees also must be trained that their report of alleged undue influence may be reported to the CPSC confidentially. (The notices of requirements stated that firewalled applicants must submit “training documents showing how employees are trained to notify the CPSC immediately and confidentially of any attempt * * * to hide or exert undue influence.” To be more consistent with the statute, we are hereby describing this requirement as a need for the firewalled applicant to train employees that they may notify the CPSC immediately, and that a report to the CPSC may be confidential. The laboratory must have established procedures to ensure that an employee may report an allegation of undue influence to the CPSC and may do so confidentially.
With regard to governmental laboratories, the notices of requirements have reiterated the five criteria from section 14(f)(2)(B) of the CPSA that must be satisfied for the CPSC to accept the accreditation of a governmental laboratory:
• To the extent practicable, manufacturers or private labelers located in any nation are permitted to choose conformity assessment bodies that are not owned or controlled by the government of that nation;
• The third party conformity assessment body's testing results are not subject to undue influence by any other person, including another governmental entity;
• The third party conformity assessment body is not accorded more favorable treatment than other third party conformity assessment bodies in the same nation whose accreditation has been accepted by the CPSC;
• The third party conformity assessment body's testing results are accorded no greater weight by other governmental authorities than those of other third party conformity assessment bodies whose accreditation has been accepted by the CPSC; and
• The third party conformity assessment body does not exercise undue influence over other governmental authorities on matters affecting its operations or on decisions by other governmental authorities controlling distribution of products based on outcomes of the third party conformity assessment body's conformity assessments.
The notices of requirements have explained that CPSC staff will engage the governmental entities relevant to the accreditation request to obtain assurances that the statutory criteria are satisfied.
The notices of requirements also have explained that we have established an electronic accreditation acceptance and registration system accessed via the CPSC's Web site site at:
As explained in the notices of requirements, CPSC staff reviews the submission for accuracy and completeness. In the case of independent and governmental laboratories, when that review and any necessary discussions with the applicant are completed, we will add any accepted laboratory to the CPSC's list of accepted laboratories. This list can be found at:
The notices of requirements have become effective on publication, meaning that as soon as the notices of
In most cases, the standard or test method specified in a notice of requirements was either already in effect, or became effective upon publication of the notice of requirements. (There were four notices of requirements that published the same day as a final rule establishing the safety standard specified in the notice: the notices of requirements for infant bath seats, infant walkers, cribs, and toddler beds. In those cases, the safety standard took effect six months after publication.
The Commission has established requirements for accreditation of third party conformity assessment bodies (“laboratories”) for certain children's product safety rules in accordance with section 102(a)(2) of the CPSIA. Most notices of requirements provided an opportunity for public comment. Below, we describe and respond to the comments submitted in response to the notices of requirements that published before August 14, 2011. As of August 14, 2011, 17 notices of requirements have been published in the
A summary of each of the commenters' topics is presented, and each topic is followed by our response. For ease of reading, each comment will be prefaced by a numbered “Comment”; and each response will be prefaced by a corresponding numbered “Response.” Each “Comment” is numbered to help distinguish between different topics. The number assigned to each comment is for organizational purposes only, and does not signify the comment's value, or importance, or the order in which it was received. Comments on similar topics are grouped together.
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Another commenter recommended that the CPSC accept the accreditation of laboratories accredited by the American Industrial Hygiene Association (AIHA), which is accredited to ISO/IEC 17011:2004, but was not an ILAC–MRA signatory (at the time the comment was submitted). The AIHA accredits laboratories to ISO/IEC 17025:2005 for the National Lead Laboratory Accreditation Program (NLLAP), administered by the U.S. Environmental Protection Agency (EPA). One commenter stated that, by not including AIHA-accredited laboratories, there are not a sufficient number of laboratories in the United States to handle the volume of testing required by the CPSIA. Multiple commenters recommended that accreditation bodies that are part of the National Cooperation for Laboratory Accreditation (NACLA) be recognized by the CPSC, and thus, enable the laboratories accredited by NACLA members to provide test results for lead in paint that can be used as a basis of issuing a Children's Product Certificate. The NACLA does not rely on mutual recognition among accreditation bodies, but it has a Recognition Council to recognize accreditation bodies. NACLA members follow the provisions of ISO/IEC 17011:2004 and accredit laboratories to ISO/IEC 17025:2005.
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The CPSA, as amended by the CPSIA, directs the CPSC to establish and publish notices of requirements for accreditation of third party conformity assessment bodies to assess conformity with a children's product safety rule to which such children's product is subject. The CPSA provides that accreditation of third party laboratories may be conducted by the Commission or by an independent accreditation organization designated by the Commission.
In consideration of the timelines established by the CPSA and the fact that children's consumer products are manufactured for the U.S. market in nations throughout the world, we identified several objectives for a laboratory accreditation program that could accomplish the implementation of the CPSA. These objectives were:
(1) Designate the core elements of a CPSC accreditation program to an entity that is established and has acceptance on a multinational level. The entity should follow internationally recognized standards for assessing the competence of laboratories and for the processes and standards used by accreditation bodies that evaluate such laboratories;
(2) Designate one entity that immediately could bring on board, on a multinational level, the largest number of accreditation bodies that could begin the process of accrediting laboratories in accordance with the CPSC specific requirements for a children's product safety rule; and
(3) Avoid designation to accreditation programs or entities that are recognized only in a specific region, nation, or locality. The reasons for this objective are to: (a) Keep the program as simple as possible for use by manufacturers, private labelers, importers, laboratories, and other interested parties; (b) avoid any perceived notions of barriers to fair trade practices; (c) establish a program that is manageable within agency resources; and (d) maintain a degree of
The Commission will continue to designate accreditation bodies that are signatories to the ILAC–MRA. We believe that the laboratory accreditation requirements approved by the Commission are consistent with the direction of the CPSA and meet the objectives outlined above.
We recognize that there are other laboratory accreditation organizations or accreditation bodies. Some of these organizations may adhere to similar procedures and standards (but with some distinctions) as those established in the ILAC–MRA signatory program. However, expanding CPSC designations to such organizations would not meet all of the objectives outlined above.
Regarding laboratory testing capacity for lead in paint, we are not aware of any evidence indicating that insufficient CPSC-accepted laboratory testing capacity for lead in paint exists. If lead in paint testing capacity becomes an issue in the future, the CPSC will address the situation.
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The topic of reciprocity is addressed in the response to Comment 7.
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Inspection, as intended by ISO/IEC 17020:1998, is generally used for individual items or very small production volumes. Conformity assessment is used for assuring compliance to established standards and is applicable to larger production volumes. At this time, we decline to recommend adopting the suggestion of using ISO/IEC 17020:1998.
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Another commenter asked that the CPSC consider alternative criteria for accreditation to allow for organizations that are accredited to Standard ISO/IEC 17065.
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With regard to the commenter's suggestion that the CPSC consider including alternative criteria for accreditation to allow CPSC acceptance of accreditations to ISO/IEC 17065, ISO/IEC 17065 has not (as of the date of this proposed rule) been finalized. This draft standard is still in development as a revision to ISO Guide 65:1996,
With regard to the ANSI document,
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One commenter stated that a reciprocity provision would benefit U.S. manufacturers because reciprocity would allow for streamlined testing requirements and protocols across international markets and would also keep manufacturers from sending testing samples to multiple testing facilities around the world in order to “shop” for passing testing results. Another commenter stated that without reciprocity provisions, U.S.-based laboratories are damaged by not having access to other countries' conformity assessment systems. The commenter recommended that the CPSC amend its proposed accreditation requirements to include reciprocity provisions identical to those used by OSHA under its Nationally Recognized Testing Laboratory (NRTL) program.
One commenter stated that, without reciprocity provisions, the product safety scheme will lack the necessary shared interest in quality oversight to make it a functioning program.
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As for the comment regarding shared interest in quality oversight, to the extent that the commenter is suggesting that reciprocity provisions are necessary for the CPSC's laboratory program to function, the commenter did not describe how or why having reciprocal testing-body recognition is necessary to implementing section 14 of the CPSA. We use accreditation by an ILAC–MRA signatory accreditation body to an international standard, ISO/IEC 17025:2005, and additional information, to determine whether to accept the accreditation of an applicant laboratory. Sections 1.4 and 1.6 of ISO/IEC 17025:2005 specifically refer to the quality management system of the laboratory. Laboratories accredited to ISO/IEC 17025:2005 must implement a quality management system, appoint a staff member as quality manager, and continually improve the effectiveness of its management system through the use of quality policy, quality objectives, audit results, and other factors. None of these quality oversight items requires reciprocity between nations.
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The commenter noted that these issues deserve special emphasis for proprietary (firewalled) and governmental laboratories. Under the CPSC's laboratory accreditation requirements that were published in the notices of requirements and that are provided in additional detail in this proposed rulemaking, firewalled and governmental laboratories are required to demonstrate particular undue influence safeguards, as specified in the CPSA, in addition to the requirements of the ISO/IEC 17025:2005 standard.
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In addition, the CPSA requires that firewalled and governmental laboratories satisfy certain criteria, which include protections against undue influence. The CPSC implements those criteria, such that firewalled and governmental laboratory applicants must submit additional materials that address undue influence safeguards. For a full description of the additional application materials, see discussion of proposed § 1112.13(b) and (c) in section IV, B.2 of the preamble.
The criteria for safeguards against undue influence are addressed by the proposed CPSC requirements, and there should not be additional criteria based on programs or standards that are not specific for laboratories that conduct tests.
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Section 14(f) of the CPSA defines and discusses the term “third party conformity assessment body” to include all three types of laboratories. Accordingly, the notices of requirements, and this proposed rule, describe all laboratories whose accreditation has been accepted by the Commission as “third party conformity assessment bodies,” whether they are independent, governmental, or firewalled.
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A team of CPSC staff reviews applications from firewalled laboratories, including the submission of training documents. If the team concludes that the application materials satisfy the statutory requirements for acceptance as a firewalled conformity assessment body, the team recommends the applicant for Commission acceptance. Thus far, the training documents submitted by firewalled laboratory applicants have indicated clearly whether section 14(f)(2)(D) of the CPSA has been satisfied. However, the CPSC will consider this suggestion as we review future applications from firewalled laboratories. Should we determine that establishing standards for training documents would be helpful, we will consider the criteria for impartiality in other standards and best practices.
We note that accreditation bodies play a role in ensuring impartiality of firewalled laboratories as well. Section 4.1.5(b) of ISO/IEC 17025:2005 requires that the laboratory “have arrangements to ensure that its management and personnel are free from any undue internal and external commercial, financial and other pressures and influences that may adversely affect the quality of their work.” Note 2 under § 4 of ISO/IEC 17025:2005,
If the laboratory wishes to be recognized as a third party laboratory, it should be able to demonstrate that it is impartial and that it and its personnel are free from any undue commercial, financial and other pressures which might influence their technical judgment. The third party testing or calibration laboratory should not engage in any activities that may endanger the trust in its independence of judgment and integrity in relation to its testing or calibration activities.
The accreditation body evaluates the laboratory regarding this provision during the initial assessment and during each reassessment. Thus, the firewalled laboratory's accreditation body also evaluates the policies and procedures by which the laboratory avoids activities that would diminish confidence in its impartiality.
To the extent that these commenters also intended to suggest that the CPSC apply standards to the training documents submitted by government laboratory applicants, we note that, to date, the CPSC has not requested that governmental laboratory applicants submit training documents. Nor are we proposing in this rule that governmental laboratory applicants submit training documents to the CPSC. Sections 14(f)(2)(D)(ii)(II) and (III) of the CPSA specifically require that applicants for firewalled status have established procedures to ensure that,
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With regard to the suggestion that, if the CPSC required submission of the evidence of compliance with § 4.1.5(b) of ISO/IEC 17025:2005, accreditation bodies and laboratories would pay more specific attention to that requirement, we believe that accreditation bodies garner significant attention from laboratories. If a laboratory failed to meet the requirements of ISO/IEC 17025:2005 to the satisfaction of its accreditation body, the laboratory could lose its accreditation and a potentially significant portion of its business.
With regard to the suggestion that submission of the records used to validate fulfillment of ISO/IEC 17025:2005 § 4.1.5(b) would promote consistency among laboratories, we respond that currently, we do not perceive any need to do so. The Commission has decided to designate laboratory accreditation to ILAC–MRA signatories, per section 14(a)(3)(C) of the CPSA. At this time, we are not aware that this designation has resulted in problems regarding undue influence. Requiring submission of the records used to validate the fulfillment of ISO/IEC § 4.1.5(b) would impose a burden on the CPSC and laboratories, without corresponding benefit. Finally, we note that fulfillment of the requirements of ISO/IEC 17025:2005 § 4.1.5(b) may be achieved in a number of ways. Decreasing variability in how laboratories fulfill that requirement would not necessarily increase protection against undue influence.
With regard to the suggestion that the submission of records used to validate fulfillment of ISO/IEC 17025:2005 § 4.1.5(b) would promote consistency among accreditation bodies, the ILAC–MRA evaluation process of an accreditation body involves a team of peer review members drawn from multiple accreditation bodies located around the world. This multi-member team arrangement tends to harmonize how the requirements of § 4.1.5(b) of ISO/IEC 17025:2005 are fulfilled around a common set of principles shared by the globally distributed team members.
With regard to the suggestion that requiring the submission of evidence of the fulfillment of ISO/IEC 17025:2005 § 4.1.5(b) to the CPSC would provide us with a means of monitoring compliance, we do not agree. Records related to accreditation assessments and reassessments are maintained by the accreditation bodies and the laboratories. The final rule on the audit requirements (implementing § 14(i)(1) of the CPSA) requires a third party conformity assessment body to retain records relating to the last three reassessments conducted by the accreditation body and make such records available to the CPSC upon request. Records of nonconformities related to safeguards against undue influence (or any ISO/IEC 17025:2005 requirement) and the corrective actions must be made available to the CPSC upon request. Accordingly, we already have a means of monitoring compliance with this and every other provision in ISO/IEC 17025:2005.
With regard to the commenter's particular concern with firewalled and governmental laboratories, CPSC acceptance of these types of laboratories requires the submission and evaluation of additional information specifically dealing with avoiding undue influence. Proposed § 1112.13(b) and (c) provide details of the additional documentation we would require for CPSC acceptance of the accreditation of firewalled and governmental laboratories.
The proposed rule would require these additional application materials from firewalled and government laboratories because we expect that they will provide us with helpful information concerning the structure and independence of these applicants.
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We decline the suggestion to require extensive public disclosure of manufacturer and/or government laboratory personnel. We consider that mandating such disclosure would constitute an invasion of personal privacy that would be unwarranted when balanced against the public interest in the information.
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• Public disclosure that the manufacturer has a financial interest or ownership stake in the laboratory;
• Submission of materials that identify whether employee compensation or annual bonuses (including stock options) are tied to the financial performance of the controlling manufacturer;
• Submission of detailed protocols by which the engineering staff of the firewalled laboratory do not either transfer from or transfer to the manufacturer's staff, or otherwise look to the manufacturer for career advancement; and
• Evidence that employees are required to participate, and regularly pass, third party ethics and compliance audits and programs intended to detect and protect against undue influence. The International Federation of Inspection Agencies (IFIA) Compliance Code was mentioned as a possible standard. Employees should also be required to submit to any programs established by the manufacturer/firewalled laboratory, including training, reporting, monitoring, investigating, and enforcement, intended to protect against and detect undue influence.
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With regard to the suggestions that firewalled laboratories be required to identify whether employee compensation or annual bonuses (including stock options) are tied to the financial performance of the controlling manufacturer, and that the CPSC require submission of detailed protocols by which the engineering staff of the firewalled laboratory do not either transfer from or transfer to the manufacturer's staff or otherwise look to the manufacturer for career advancement, we do not believe that such information would be dispositive. The core concern is whether the testing process will be tainted, and this concern drives the provisions that were in the notices of requirements, as well as the provisions in this proposed rule, which seek to ensure that the testing process is protected against undue influence. As explained in the response to Comment 16, we are proposing to expand the definition of “firewalled laboratory,” and we are requiring more information from those entities about safeguards against undue influence.
As we have noted in the responses to Comments 10 and 11, § 4.1.5(b) of ISO/IEC 17025:2005 requires that the laboratory have arrangements to ensure that it is free from undue influence. The accreditation body evaluates the laboratory's fulfillment of this provision at the initial accreditation and at each reassessment. Further, section 14(f)(2)(D)(ii) of the CPSA requires the Commission, by order, to find that the conformity assessment body has established procedures to ensure that its test results are protected from undue influence by the manufacturer, private labeler, or other interested party. Because multiple entities are evaluating the means by which the firewalled laboratory avoids undue influence by the manufacturer, additional application requirements for firewalled applicants are not seen as necessary at this time. At a future date, we may consider additional requirements for firewalled laboratories in response to evidence that the prevailing requirements are not effective.
Finally, as for the suggestion that we require evidence that employees are required to participate, and regularly pass, third party ethics and compliance audits and to submit to any programs established by the manufacturer/firewalled laboratory intended to detect and protect against undue influence, we decline to adopt this suggestion. Under the proposed rule, a firewalled laboratory applicant would be required to submit, among other things, copies of training documents, including a description of the training program content), showing how employees are trained to notify the CPSC immediately and confidentially of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the third party conformity assessment body's test results; and training records (including training dates, location, and the name and title of the individual providing the training), listing the staff members who received the required training. At this time, we believe that requiring these training records sufficiently addresses our interest in ensuring that firewalled laboratory personnel are adequately trained in detecting and protecting against undue influence. Again, however, we will continue to consider this suggestion, and if additional requirements concerning undue influence-related training of laboratory
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The commenter suggested further that the definition of “firewalled laboratories” be extended to include laboratories that do 50 percent or more of their business with a single manufacturer or private labeler of children's products.
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We considered the potential controlling effect of manufacturers with a significant part of a laboratory's business, and concluded that evaluating such a factor would be challenging administratively and difficult to verify. Variables such as the time period and types of products to consider could have a significant impact on any calculation of a percentage of a laboratory's business.
However, the proposed rule would address management and/or control of a laboratory by a manufacturer or private labeler by including in the definition of “firewalled laboratory,” laboratories over which a manufacturer or private labeler has the ability to appoint a majority of the laboratory's senior internal governing body; the ability to appoint the presiding official of the laboratory's senior internal governing body; or the ability to hire, dismiss, or set the compensation level of laboratory personnel. Another proposed aspect of this definition would be to deem “firewalled,” a laboratory that is under contract to a manufacturer or private labeler, such that the contract limits explicitly the services that the laboratory may perform for other customers or limits explicitly which or how many other entities may be customers of the laboratory.
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With regard to the suggestion that we require foreign governmental laboratories to agree to submit to the jurisdiction of U.S. regulatory agencies and courts without asserting claims of sovereign immunity, or asserting other bases for limiting their liability, such actions are beyond the scope of our laboratory accreditation authority.
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In addition to a laboratory's reassessment visits, surveillance visits can be conducted by accreditation bodies during the period between reassessments. Surveillance visits are assessments that are conducted for a particular purpose, such as to follow up on a previously observed problem or to ensure that a newly accredited laboratory has implemented necessary procedures. Surveillance visits may or may not be conducted for purposes of reviewing the impartiality of a laboratory, and thus, may or may not involve a reassessment of a laboratory's impartiality.
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(i) to the extent practicable, manufacturers or private labelers located in any nation are permitted to choose conformity assessment bodies that are not owned or controlled by the government of that nation;
(ii) the entity's testing results are not subject to undue influence by any other person, including another governmental entity;
(iii) the entity is not accorded more favorable treatment than other third party conformity assessment bodies in the same nation who have been accredited under this section;
(iv) the entity's testing results are accorded no greater weight by other governmental authorities than those of other third party conformity assessment bodies accredited under this section; and
(v) the entity does not exercise undue influence over other governmental authorities on matters affecting its operations or on decisions by other governmental authorities controlling distribution of products based on outcomes of the entity's conformity assessments.
In order for us to evaluate whether a governmental laboratory applicant satisfies the statutory criteria, we have developed a standard questionnaire and requests for documentation that each governmental laboratory applicant is asked to complete. The questionnaire accompanies the proposed rule as part of the CPSC's Paperwork Reduction Act package, and the required documents are described in proposed § 1112.13(c)(2). In addition, CPSC staff reviews governmental laboratory applications using a standardized review document that provides grounds and reasoning for a finding relative to each of the five statutory criteria. These standardizations provide increased objectivity to the application review process, and the questionnaire and documentation requirements are being published via this proposed rule.
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The commenters also argued that our approach violates the “mutual recognition principle of conformity assessment procedures” under the international treaty, “Agreement on Technical Barriers to Trade” (TBT Agreement). The commenters also invoked article 6.3 of the TBT Agreement, which encourages members to negotiate agreements for the mutual recognition of conformity assessments, and the commenters suggested additional consultations on these issues.
One commenter raised several issues under the World Trade Organization's TBT Agreement. The commenter stated that Article 2.4 of the TBT Agreement requires members to use relevant international standards (if they exist) as a basis for their technical regulations and said that ISO 9239–1,
Finally, another commenter referred to Article 5.1.2 of the TBT Agreement to state that “conformity assessment procedures shall not be more strict than necessary to give the Importing Member adequate confidence that products conform to the applicable technical regulations or standards.” The commenter also cited Articles 2.4, 2.5, 2.9.3, 5.4, and 5.6.3 of the TBT Agreement and asked us to “identify parts, if any, of the new regulation which in substance deviate from relevant international standards and to explain why such deviation has become necessary.”
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We do not agree that this approach is unfair. Because neither governmental nor firewalled laboratories are independent entities, both are potentially subject to undue influence from the organizations to which they are connected, which have interests beyond product testing. The CPSIA imposes additional requirements on firewalled and government laboratories so that only laboratories that are arranged to avoid undue influence sufficient to satisfy the statutory criteria may be accepted. We remain committed to implementing the conformity assessment program established by the CPSIA fairly and with the primary goal of product safety in mind.
The notices of requirements have not contradicted the TBT Agreement. We are willing to accept laboratories recognized by foreign governments if the laboratories satisfy the statutory requirements, including the five statutory criteria listed above (as long as the laboratory satisfies the baseline criteria) in the case of laboratories owned or controlled in whole, or in part, by a government. In fact, we have accepted the accreditations of several governmental laboratories, and we have applied the same statutory criteria to governmental laboratories, regardless of whether the governmental laboratory was located in a foreign country or in the United States. (Indeed, we note that the definition of “government participation” in section 14(f)(2)(B) of the CPSA (for purposes of a “third party conformity assessment body”) is not limited to foreign governments.) The CPSC consults extensively with laboratories seeking to become accepted to test products under section 14 of the CPSA. We remain open to further consultation on these issues with any interested laboratory applicant.
With respect to specific articles in the TBT Agreement, the commenter addressing Article 2.4 of the TBT agreement may have misinterpreted the notice of requirements. The notice of requirements simply establishes the conditions under which the CPSC will accept the accreditation of a third party conformity assessment body to test a children's product for compliance with a particular children's product safety rule. The notice of requirements does
Similarly, the commenter addressing Article 5.1.2 of the TBT agreement may have misinterpreted the notice of requirements. This commenter was responding to the notice of requirements pertaining to 16 CFR part 1630,
Moreover, consistent with Article 5.1.2 of the TBT Agreement, the notices of requirements have not established procedures and requirements for laboratories that are more strict than necessary to give the CPSC adequate confidence that children's products tested by CPSC-accepted laboratories conform to applicable CPSC standards, regulations, rules, or bans. We are unclear which relevant international standards the commenter would like us to compare the notices of requirements and explain why differences between the two are necessary. To the extent that the commenter is asking for differences between various substantive safety standards, we again note that the notices of requirements do not affect the underlying consumer product safety standard or children's product safety rule.
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In addition, we are not adopting a graduated system of penalties because we consider it preferable to deal with laboratory infractions on a case-by-case basis.
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• Evidence of conflict of interest or where there is undue influence by a manufacturer, a common parent company, or other party, that could have affected test results;
• A laboratory has been found to be incompetent to conduct required testing due to personnel or laboratory equipment changes; or
• A laboratory has a record of repeatedly certifying products that are later identified as noncompliant.
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Component parts of children's products, including metal jewelry items, generally weigh several grams or more, and an aliquot (with no paint or similar surface coating, but including any electroplated or other coating which is considered to be part of the substrate, excluding precious or other metals exempt from testing) will have to be obtained.
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The commenter is correct that an excluded material, such as gold of at least 10 karats, does not require testing for lead. On August 26, 2009, the Commission published in the
If the commenter submits samples for testing without the electroplating, those test results, combined with the exclusion for a plating material (such as gold greater than 10 karats) could be used as the basis for issuing a Children's Product Certificate for a finished product consisting of units from the same lot or batch as the samples, plus the electroplating. However, once the electroplating occurs, the combination of the base material and the electroplating are considered one component part. If finished product samples are submitted for testing, the electroplating must be part of the tested specimen.
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Another commenter urged the CPSC to consider the use of a specific XRF technology, energy dispersive- X-ray fluorescence spectrometry (EDXRF), as a validated method for the testing of lead in substrates of consumer products. The commenter referred to interlaboratory testing that compared EDXRF technology to “wet chemistry” techniques (Inductively Coupled Plasma and Atomic Absorption Spectrometry) to measure lead in multiple substrates. The commenter opined that the economic and other benefits of using EDXRF over “wet chemistry” may be even more pronounced with application to the nondestructive measurement of lead in the substrate of product samples.
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This proposed rule also would allow the use of XRF to determine the lead content of glass materials, crystals, and certain metals. We will continue to evaluate improvements to technology and methods on an ongoing basis.
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Additionally, the proposed rule (at proposed § 1112.15(b)(28), (29), and (30)) would allow the use of XRF to determine the lead content of glass materials, crystals, and certain metals. We will continue to evaluate improvements to technology and methods on an ongoing basis.
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Cut the test specimen into small pieces. Hard-to-digest plastics may need to be cryomilled to get finer powder. The minimum size is left to the discretion and flexibility of the tester for the material being evaluated.
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In the years since the flammability regulations at 16 CFR parts 1630 and 1631 were promulgated, we have handled, on an individual basis, requests for exclusion of one-of-a-kind carpets or rugs. The commenter is correct that we have not formally established the conditions under which a carpet or rug would be excluded under 16 CFR 1630.2(b) and/or 1631.2(b), but such matters are outside the scope of this rulemaking.
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In response to the commenter who asked that we allow internal laboratories that are accredited by NVLAP, we interpret the comment as referring to laboratories that are owned by carpet or rug manufacturers. In these cases, the notice of requirements allows NVLAP accreditation to serve as a “baseline” requirement for CPSC acceptance. However, in accordance with the CPSA (as amended by the CPSIA), laboratories that are owned by a manufacturer of a product that is subject to the regulation for which it conducts tests must meet additional criteria for Commission acceptance as a firewalled third party conformity assessment body.
As for the commenters suggesting that the implementation of different testing protocols will provide no safety benefit, the notice of requirements makes no changes to the flammability test methods that appear in 16 CFR parts 1630 and 1631. The commenters may be referring to the language in section 14(a)(2) of the CPSA (as amended by the CPSIA) that the manufacturer “must submit sufficient samples of the children's product, or samples that are identical in all material respects to the product,” for testing by a CPSC-accepted third party conformity assessment body, and/or the CPSA language in section 14(i)(2)(B) related to Commission rulemaking for a continued testing program (including periodic and random sample testing, and compliance labeling). These “testing protocols” are required for children's carpets and rugs by the CPSIA and the recently issued final rule
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In addition, and as explained in the response to Comment 31, concerning carpets and rugs, a laboratory that wishes to conduct tests upon which a manufacturer of a children's product subject to a particular rule may base a certificate of compliance, must have that particular rule listed in its scope of accreditation. This requirement ensures that the laboratory understands the CPSC regulation and test methods associated with the regulation and has been evaluated as competent to conduct that testing. Although UL 696 has been revised to be consistent with 16 CFR 1505, an NRTL laboratory with UL 696 in its scope of recognition must be accredited to ISO/IEC 17025:2005 by an ILAC–MRA signatory accreditation body to 16 CFR part 1505 before the laboratory may apply to the CPSC for acceptance of that accreditation.
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This standard includes “Category Y” classifications, which are for off-road use by operators under age 16. These categories are: Y–6+, intended for use by children age 6 or older; Y–10+, intended for use by children age 10 or older; Y–12+, intended for use by children age 12 or older; and T, intended for use by children age 14 or older with adult supervision, and by persons age 16 or older. While we appreciate the comment that a significant percentage of the riders of the Y–12+ model will be children 12 years old, and not the children who are older than 12, no data were provided to support that statement.
We do not have data to indicate which portion of the “12 or older” category represents the rider of Y–12+ ATV models most. The CPSIA defines a “children's product” in § 3(a)(2) of the CPSA as:
(2) CHILDREN'S PRODUCT.—The term “children's product” means a consumer product designed or intended primarily for children 12 years of age or younger. In determining whether a consumer product is primarily intended for a child 12 years of age or younger, the following factors shall be considered:
(A) A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.
(B) Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.
(C) Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.
(D) The Age Determination Guidelines issued by the Commission staff in September 2002, and any successor to such guidelines.
We cannot categorically include Y–12+ model ATVs as “youth ATVs” because the age range for that model includes children over the age of 12; however, the definition of a “children's product” is limited to products designed or intended primarily for children 12 years of age or younger. When it is unclear whether a product should be considered a children's product, we will apply the four factors. Different manufacturers may mark, package, and market their ATVs as primarily intended for children older than 12, or as primarily intended for 12 year olds. We will determine on a per-model basis, using the four factors listed above, whether a particular model Y–12+ ATV is primarily intended for use by children 12 years of age or younger (and is therefore considered a children's product in need of third party testing to support a certification). Indeed, some commenters commended the CPSC for applying the four statutory factors, rather than relying solely on the manufacturer's statements regarding whether an ATV is intended for a child.
The commenter is incorrect that we have excluded Y–12+ model ATVs from third party testing. In the notice of requirements that appeared in the
On August 12, 2011, the President signed into law Public Law 112–28, which amended the CPSIA in several respects. One provision in PL 112–28 created an exception from the lead limits for off-highway vehicles. Consequently, ATVs, recreational off-highway vehicles, and snowmobiles are no longer subject to the lead limits in section 101 of the CPSIA. We also note that recently, a final rule revising 16 CFR part 1420, in which American National Standard ANSI/SVIA–1–2010 will become the new mandatory standard effective April 30, 2012, was published in the
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Additionally, as noted in the response to Comment 36, all-terrain vehicles, recreational off-highway vehicles, and snowmobiles are no longer subject to the lead limits in section 101 of the CPSIA.
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One commenter urged us to refrain from issuing a notice of requirements to ASTM F 963 because it said that requiring third party testing would “dramatically and permanently harm small batch toymakers.” The commenter sought an indefinite stay of enforcement of the third party testing requirements for ASTM F 963 or delayed publication of the notice of requirements. The commenter cited testing costs, the impact of a third party testing requirement relative to the production of toys for the holiday season, the complexity of ASTM F 963, and congressional consideration of changes to the CPSIA.
Another commenter expressed concern about “potential confusion in the marketplace that may result from a lack of coordination between timing of the effective date” of a third party testing requirement and revisions to the ASTM F 963 toy standard. It recommended that we set the effective date of third party testing requirements to coincide with an expected revision of the toy standard and the date on which the revision would become a mandatory standard (as provided by section 106 of the CPSIA). It also urged us to clarify that, in cases where requirements overlap between versions of the standard, manufacturers do not need to test to demonstrate compliance with both standards. The commenter also sought flexibility on the acceptance of retrospective testing because, it explained, delays in our acceptance of third party conformity assessment body accreditation could force “redundant testing” on manufacturers who seek to test to new or revised standards before their effective date.
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As for the second commenter's concern about effective dates, revisions to the toy standard, and potentially “redundant” testing, we are sensitive to potential disruptions and confusion that may result when standards are revised. The notice of requirements acknowledges that we anticipated another revision to ASTM F–963 and invited comment on “how to make the transition in testing requirements as clear and efficient as possible should the standard change” (76 FR at 46599). The enactment of Public Law 112–28 has magnified the need to develop policies with respect to transitions in testing requirements when standards change, because Public Law 112–28 revised section 104 of the CPSIA to establish a process for subsequent revisions to voluntary standards for durable infant and toddler products. The resulting process is similar to that under section 106 of the CPSIA (which pertains to toys and ASTM F–963). The issuance of future notices of requirements, relative to revised or changing standards, is complicated further by the fact that, after August 14, 2011, all notices of requirements are subject to the rulemaking requirements in 5 U.S.C. 553 and 601 through 612 of the Administrative Procedures Act.
Nevertheless, we agree that “redundant” testing should not be necessary when the relevant provision in the toy standard has not changed, or not changed in a manner that would affect how testing is conducted between revisions. For example, assume that a provision in the 2008 version of the standard imposed a particular test on a toy. If the standards organization revised the standard in 2011, such that a provision in the revised 2011 standard imposes the same test as the 2008 standard or a “functionally equivalent” test to the 2008 standard on the toy, then we believe it would be unnecessary to require manufacturers to take toys that had been tested to the 2008 standard and retest them to the 2011 standard. (By “functionally equivalent,” we mean that the standards organization has made certain changes in the revised standard, as compared to the earlier standard, but the changes are not substantial, and they do not affect the associated conformance testing.) Similarly, we believe that it is unnecessary, and contrary to public policy, to expect third party conformity assessment bodies that have been accredited to conduct that particular test under the 2008 standard, to cease
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Another commenter supported our inclusion of the revised CPSC test method and Chinese test method, but they asked that we consider Health Canada's test method for total phthalate content in PVC products. The commenter said that recognizing the Canadian test method would reduce redundant testing further, by enabling firms to certify compliance with U.S. and Canadian phthalate requirements using one test.
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With respect to the Canadian test method, we assume that the commenter is referring to
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The second commenter also referred to the Statement of Policy, but they asked that we revise the Statement of Policy to “make it clear * * * that the excluded material list compiled, is not exhaustive and similar, related or other such materials may not require testing and may be added in the future.” The commenter said, however, that “it is likely impossible to create an exhaustive list of
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With respect to expanding the list of materials that may or may not contain phthalates and whether such a list should be part of a notice of requirements, we will consider whether additional guidance on materials containing or not containing phthalates should be developed. We decline, however, to include such a list in a notice of requirements or this rulemaking. Our experience indicates that when a regulation or document attempts to provide a list of examples, often the list is construed to be exhaustive or definitive, resulting in multiple requests to amend the rule or revise the document to add or delete items from the list. Given our scarce resources, and for the reasons mentioned in this response, we do not believe it would be prudent to include as part of this rulemaking, a list of materials containing phthalates or a list of materials known not to contain phthalates.
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A commenter, in response to an earlier notice of requirements, supported the position of not allowing any retrospective testing by firewalled laboratories. This commenter viewed the position of not allowing any retrospective testing by firewalled laboratories as a way to reduce any possible conflicts of interest and to ensure that no undue influence occurred in the certification process.
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Some of the commenters who disagreed that the amended CPSA requires third party testing of children's products subject to rules of general applicability asserted that, even if the Commission views the text of the statute as requiring third party testing for such products, we should, nevertheless, use our implementing authority under section 3 of the CPSIA to limit the third party testing requirement to rules of limited applicability—that is, rules applicable solely to children's products. Similarly, one commenter urged the Commission to use authority granted in section 14(b) of the CPSA to “assess the necessity of third party testing on a case-by-case basis.”
One commenter argued that we have been inconsistent in describing what constitutes a “children's product safety rule.” The commenter noted that in the proposed rule on “Testing and Labeling Pertaining to Product Certification,” we stated: “[c]urrently, the rule on children's bicycle helmets is the only children's product safety rule that contains requirements for a reasonable
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Thus, the statute defines a “children's product safety rule” to mean a consumer product safety rule. The Commission has taken the position that the statute requires third party testing to support a certification of a children's product if that children's product is subject to a consumer product safety rule. A “consumer product safety rule” becomes a “children's product safety rule”—not when the product subject to the rule is limited to children's products—but rather, when the product subject to the rule includes children's products.
With regard to the comment that a General Conformity Certificate would adequately assure the safety of children's products, we again refer to the statute. Section 14(a)(2) of the CPSA states that a certification based on third party testing is required for “any children's product that is subject to a children's product safety rule.” General Conformity Certificates are required for non-children's products and are not required to be based on third party testing. However, Public Law 112–28 allows small batch manufacturers to use alternative testing requirements once the Commission has identified such testing requirements, or they are allowed an exemption if the Commission determines that no alternative testing requirement is available or economically practicable.
As for the comment regarding section 3 of the CPSIA, the statute gives us some latitude in implementing the CPSIA, but it does not authorize us to avoid implementing the statute altogether. Courts have held that an agency's authority to implement a new statute does not encompass avoiding the statutory obligation itself.
Finally, the comment regarding inconsistency in determining what is a children's product safety rule was submitted in response to the notice of requirements for clothing textiles, which was published on August 18, 2010—several months after publication of the proposed rule on “Testing and Labeling Pertaining to Product Certification.” The publication of the clothing textiles notice of requirements clearly indicates that the Commission decided that the clothing textiles standard is a children's product safety rule. In fact, the Commission reaffirmed its position when it revised the clothing textiles notice of requirements on April 22, 2011.
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Another commenter stated that “[r]equiring third party testing further triggers compliance” with requirements under the two recent notices of proposed rulemaking (NPRs),
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However, with respect to conducting cost-benefit analyses for the rules identified in the comment, the CPSIA did not require us to conduct such analyses. We also note that we issued final rules on “Testing and Labeling Pertaining to Product Certification” (76 FR 69482 (November 8, 2011)) and “Conditions and Requirements for Relying on Component Part Testing or Certification, or Another Party's Finished Product Testing or Certification, to Meet Testing and Certification Requirements” (76 FR 69546 (November 8, 2011)). The preamble to the final rule on “Testing and Labeling Pertaining to Product Certification” summarized and responded to a similar comment on cost-benefit analyses (
Yet, with respect to the comment that a notice of requirements somehow “triggers compliance” with these two rules, we disagree. A notice of requirements establishes the criteria under which we will accept the accreditation of a third party conformity assessment body to test children's
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This commenter also asserted that the testing requirements in part 1610 are sufficient for children's products subject to those regulations, and that requiring third party testing does not provide additional assurance of the product's ability to pass the applicable product safety standard. The commenter asked the Commission to hold a public meeting if we do not agree that the testing regime under part 1610 is sufficient for the industry to demonstrate compliance with the standard.
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Section 4 of the FFA prescribes the process for promulgating a regulation under that statute. Section 4(b) of the FFA requires, in relevant part, that each FFA “standard, regulation, or amendment thereto * * * be based on findings that such standard, regulation, or amendment thereto is needed to adequately protect the public against unreasonable risk of the occurrence of fire leading to death, injury, or significant property damage, is reasonable, technologically practicable, and appropriate.” 15 U.S.C. 1193(b). Section 4(b) of the FFA does not mandate consultation with industry. It requires findings in support of an FFA regulation. The fact that industry representatives cooperated with the CPSC when part 1610 was promulgated does not mean that the CPSC, in implementing section 14(a)(3)(B)(vi) of the CPSA, must host meetings before issuing a notice of requirements. Therefore, we decline the commenter's suggestion to hold a public meeting on this matter.
With regard to the commenter's assertion that tests conducted under part 1610 sufficiently assure compliance with the standard, and therefore, third party testing is not necessary, we note that, absent the CPSIA, a manufacturer of a clothing textile was not required to conduct the test prescribed by part 1610 at all. If the manufacturer wished to issue an FFA guaranty that the product complied with part 1610, then the manufacturer had to conduct the tests prescribed by part 1610, but that testing was entirely optional.
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Several commenters raised issues that were not present in the notices of requirements and are not directly relevant to this proposed rule; such issues, therefore, are outside the scope of this rulemaking.
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1. Waive the testing requirements for small-volume manufacturers, such as those with less than $1 million in revenue in the United States.
2. If a waiver is not possible, provide free testing to small businesses that produce children's products.
3. Allow third party certification of components from manufacturers to be used as a basis for a finished product certificate.
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Additionally, one provision in Public Law 112–28 directs us to seek public comment on seven specific issues, including:
• The extent to which modification of the certification requirements may have the effect of reducing redundant third party testing by or on behalf of two or more importers of a product that is substantially similar or identical in all material respects;
• The extent to which products with a substantial number of different components subject to third party testing may be evaluated to show compliance with an applicable rule, ban, standard, or regulation by third party testing of a subset of such components selected by a third party conformity assessment body;
• The extent to which manufacturers with a substantial number of substantially similar products subject to third party testing may reasonably make use of sampling procedures that reduce the overall test burden without compromising the benefits of third party testing; and
• Other techniques for lowering the cost of third party testing consistent with assuring compliance with the applicable consumer product safety rules, bans, standards, and regulations.
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As discussed in the response to Comment 49, we have published a notice in the
The proposed rule would consist of four subparts. Subpart A, “Purpose and Definitions,” is created by the audit final rule published elsewhere in this issue of the
At the outset, we note that section 14(f)(2)(D) of the CPSA requires that the acceptance of the accreditation of a firewalled laboratory occur by order of the Commission. Consistent with this provision, the Commission considers that any removal of the acceptance of the accreditation of a firewalled laboratory (whether by suspension or withdrawal) also must occur by order of the Commission. The Commission may delegate other functions and powers described in this part to CPSC staff, under 16 CFR § 1000.11. (Due to this distinction between functions that the Commission as a body of appointed Commissioners must discharge, and other functions that the agency may discharge via staff activity, from this point forward in this preamble, we attempt to distinguish between the Commission as a body (“Commission”) and the CPSC as an agency (“CPSC”).)
Proposed § 1112.1 would describe the major topics addressed in part 1112. It would note that the part defines the term “third party conformity assessment body” and describes the types of third party conformity assessment bodies whose accreditations are accepted by the CPSC to test children's products under section 14 of the CPSA. It would note that part 1112 describes the requirements and procedures for becoming a CPSC-accepted third party conformity assessment body; the audit requirement applicable to third party conformity assessment bodies; how a third party conformity assessment body may voluntarily discontinue participation as a CPSC-accepted third party conformity assessment body; the grounds and procedures for withdrawal or suspension of CPSC acceptance of accreditation of a third party conformity assessment body; and how an individual may submit information alleging grounds for adverse action.
The proposed rule would add a sentence preceding the definitions, to clarify that the definitions in this section apply for purposes of this part.
Proposed § 1112.3 would amend two definitions that appear in the audit final rule, which published elsewhere in this issue of the
The resubmission of the “Consumer Product Conformity Assessment Body Acceptance Registration Form” (CPSC Form 223) by the third party conformity assessment body and the Consumer Product Safety Commission's (“CPSC's”) examination of the resubmitted CPSC Form 223. If the third party conformity assessment body is owned, managed, or controlled by a manufacturer or private labeler (also known as a “firewalled” conformity assessment body) or is a government-owned or government-controlled conformity assessment body, the CPSC's examination may include verification to ensure that the entity continues to meet the appropriate statutory criteria pertaining to such conformity assessment bodies.
To this portion of the definition, the proposed rule would add the words, “and accompanying documentation” twice, after each mention of the CPSC Form 223. The proposed rule would delete the second sentence and replace it with the following two sentences:
Accompanying documentation includes the baseline documents required of all applicants in § 1112.13(a), the documents required of firewalled applicants in § 1112.13(b)(2), and/or the documents required of governmental applicants in § 1112.13(c)(2).
Proposed § 1112.3 would create the following nine definitions:
We developed this definition from the use of the term “third party conformity assessment body” in section 14 of the CPSA. The CPSA contains a lengthy definition of this term, which includes the conditions placed on governmental and firewalled laboratories. For ease of understanding, we propose to define the term more succinctly, but our definition is consistent with the term's use throughout the CPSA.
In particular, we note that the statutory definition of this term states that a governmental laboratory that satisfies certain conditions may be considered a third party conformity assessment body. The statutory definition also states that a conformity assessment body that is owned, managed, or controlled by a manufacturer or private labeler may be accepted as a third party conformity assessment body by the Commission if it satisfies certain conditions. Section 14 of the CPSA consistently refers to CPSC-accepted laboratories collectively as “third party conformity assessment bodies.”
We are aware that the term “third party conformity assessment body,” by virtue of the words “third party,” commonly refers to a laboratory that is entirely independent of the entity supplying the product to be tested and independent of any entity interested in the product. However, because this rule implements section 14 of the CPSA, which refers to all CPSC-accepted laboratories as “third party conformity assessment bodies,” the proposed rule would follow the statute's convention on this point.
We also are aware that, in the laboratory industry, the term “third party conformity assessment body” is understood to include entities other than testing laboratories. However, the proposed rule would use the term as it is used in the CPSA, which is as a testing laboratory.
Finally, we note that, in the preamble to this rule, for ease of reference, and for the convenience of the reader, we use the word “laboratory” interchangeably with “third party conformity assessment body.” In the regulatory text, for clarity, we only use the full term, “third party conformity assessment body.”
Proposed subpart B would establish the foundation for the CPSC third party conformity assessment body program with respect to basic topics, such as when and how a laboratory may apply to the CPSC for acceptance of its accreditation, and how a laboratory can voluntarily discontinue its participation with the CPSC. The proposed subpart also would define the three types of laboratories, create various obligations for CPSC-accepted laboratories, such as recordkeeping responsibilities, and institute certain limitations, such as limits on the ability to subcontract test work conducted, on CPSC-accepted laboratories. Proposed subpart B also would include details on how we will respond to each application and how we will publish information concerning which laboratories have had their accreditation accepted.
Proposed § 1112.11 would describe, for purposes of part 1112, the three types of third party conformity assessment bodies: Independent, firewalled, and governmental. Proposed § 1112.11(a) would describe an “independent laboratory” as a third party conformity assessment body that is neither owned, managed, or controlled by a manufacturer or private labeler of a children's product to be tested by the laboratory, nor owned or controlled, in whole or in part, by a government.
Section 14(f)(2) of the CPSA defines a “firewalled third party conformity assessment body” as one that is owned, managed, or controlled by a manufacturer or private labeler. We note that section 14(f)(2)(D) of the CPSA clearly states that a firewalled laboratory is one “owned, managed, or controlled
We note that, for purposes of determining whether a laboratory is considered firewalled, we propose to interpret “manufacturer” to include a trade association. Like a manufacturer, an association of manufacturers is in a position to exert undue influence on a laboratory owned, managed, or controlled by the association. The undue influence may come in the form of an expectation that special
The proposed rule would consider a laboratory “firewalled” if: it is owned, managed, or controlled by a manufacturer or private labeler of a children's product; that children's product is subject to a CPSC children's product safety rule which the laboratory requests CPSC acceptance to test; and the laboratory intends to test such children's product made by the owning, managing, or controlling entity for the purpose of supporting a Children's Product Certificate. A laboratory would be considered to be “owned, managed, or controlled” by a manufacturer or private labeler if one (or more) of four characteristics apply.
The first circumstance that would result in a laboratory being characterized as firewalled is closely related to the method we have been using in the notices of requirements to identify firewalled laboratories. Under proposed § 1112.11(b)(1)(ii)(A), if the manufacturer or private labeler of the children's product holds a 10 percent or greater ownership interest, whether direct or indirect, in the laboratory, the laboratory would be considered firewalled. In this context, indirect ownership interest would be calculated by successive multiplication of the ownership percentages for each link in the ownership chain.
We propose to maintain the 10 percent threshold ownership amount because it is our estimation that a manufacturer or private labeler that possesses a less than 10 percent ownership interest in a laboratory, and that does not otherwise exercise management or control of the laboratory, presents a low risk of exercising undue influence over the laboratory. In addition, our experience using this threshold over the past three years indicates that applicants easily understand it and have been able to supply such information. We note that the Federal Communications Commission also uses a 10 percent ownership threshold in its ownership disclosure requirements for applications.
The difference in the proposed rule from current practice is the addition of indirect ownership. Proposed § 1112.11(b)(1)(ii)(A) would include indirect ownership because an entity that owns a manufacturer or private labeler which, in turn, owns a laboratory, has the same potential for conflict of interest concerning the independence of the testing process as a manufacturer or private labeler who owns a laboratory directly. We propose to determine whether an indirect owner holds a 10 percent interest in a laboratory by multiplying the percentages of ownership in each owning entity. For example, if Company X is a manufacturer of a children's product and owns 25 percent of the stock in Company Y, and Company Y owns 50 percent of Laboratory Z, then Company X would own (indirectly) 12.5 percent of Laboratory Z (0.25 × 0.50 = 0.125). Because Company X holds more than a 10 percent indirect ownership interest in Laboratory Z, if Laboratory Z wishes to apply to the CPSC for acceptance of its accreditation to test children's products made by Company X, Laboratory Z would be considered an applicant for firewalled status. This approach to calculating indirect ownership is used by some other Federal agencies.
The second circumstance, in proposed § 1112.11(b)(1)(ii)(B), that would signify a firewalled laboratory is when the laboratory and a manufacturer or private labeler of the children's product are owned by the same parent entity. In this instance, the manufacturer would not be a 10 percent owner of the laboratory, either directly or indirectly; but the interests of both entities would converge in a common parent. In such a case, the parent company would hold the interests of the manufacturer, and the laboratory should be properly firewalled to ensure its testing processes are independent.
The third circumstance, in proposed § 1112.11(b)(1)(ii)(C), which would result in firewalled status is when a manufacturer or private labeler of the children's product has the ability to appoint a majority of the laboratory's senior internal governing body (including, but not limited to, a board of directors); the ability to appoint the presiding official (including, but not limited to, the chair or president) of the laboratory's senior internal governing body; and/or the ability to hire, dismiss, or set the compensation level for laboratory personnel. The ability to appoint the president or a majority of the senior internal governing body, or to make personnel decisions, indicates management and/or control of the laboratory.
The fourth circumstance, at proposed § 1112.11(b)(1)(ii)(D), that would result in firewalled status is when the laboratory is under a contract to a manufacturer or private labeler of the children's product and the contract explicitly limits the services the laboratory may perform for other customers and/or explicitly limits which or how many other entities may also be customers of the laboratory. In this instance, the terms of the contract would grant the manufacturer or private labeler such a significant interest in the work of the laboratory that the Commission would consider that interest to be controlling.
To date, the list of CPSC-accepted laboratories maintained on the CPSC Web site has not indicated which laboratories have firewalled status. Because this proposed rule would expand the definition of “firewalled laboratory” to include laboratories not only owned, but also those managed or controlled by a manufacturer or private labeler, we invite comments on whether the Web site listing should include an indication of firewalled status. Do manufacturers looking for a laboratory via the CPSC Web site want to know whether a laboratory is firewalled? Are there other interests in identifying a laboratory as firewalled on our Web site? Do laboratories with firewalled status perceive disadvantages to being identified as such?
According to section 14(f)(2)(B) of the CPSA, a “governmental” laboratory is one “owned or controlled in whole or in part by a government.” Proposed § 1112.11(c) would implement that definition. For purposes of this part, we would consider “government” to include any unit of a national, territorial, provincial, regional, state, tribal, or local government. “Government” would include domestic, as well as foreign governmental entities.
Proposed § 1112.11(c) would consist of six characteristics, any one of which triggers governmental laboratory status. The legal framework for government ownership or control of a laboratory will vary across the world's jurisdictions, as will the potential for undue influence as a direct or indirect result of that government's ownership or control. The government of the laboratory in question may exercise control, based on the rule of law or otherwise, out of proportion to its ownership stake in a laboratory or to the laboratory's official independent status within the government organizational structure—a situation that Congress foresaw when it specified “in whole or in part” in section 14(f)(2)(B) of the CPSA. For that reason, the proposed rule would describe those ways that a government could reasonably be seen to have a means of operational control over a laboratory that has a financial or
The first characteristic that would indicate governmental status is that a governmental entity holds a 1 percent or greater ownership interest, whether direct or indirect, in the laboratory. Selecting 1 percent as an ownership threshold is a practical matter of selecting the smallest whole number as an expression of ownership “in part.” Indirect ownership interest would be calculated for these purposes in the same way as we propose to calculate it for purposes of indirect ownership of a firewalled laboratory, which is by successive multiplication of the ownership percentages for each link in the ownership chain. For example, if Government A is a joint venture partner with Company B, such that Government A owns 20 percent of Company B, and Company B holds a 10 percent interest in Laboratory C, then Government A would indirectly own 2 percent of Laboratory C. Therefore, Laboratory C is considered a governmental laboratory.
The second characteristic that would indicate governmental status is that a governmental entity provides any direct financial investment or funding (other than fee for work) to the laboratory. We consider that this circumstance would trigger governmental status because operational control of an enterprise may be affected by control or influence over its resources.
The third proposed governmental characteristic would mirror the third characteristic of firewalled status: a governmental entity has the ability to appoint a majority of the laboratory's senior internal governing body (such as but not limited to a board of directors); the ability to appoint the presiding official of the laboratory's senior internal governing body (such as but not limited to chair or president); and/or the ability to hire, dismiss, or set the compensation level for laboratory personnel. The ability to appoint the president or a majority of the senior internal governing body, or to make personnel decisions, indicates control, at least in part, of the laboratory.
The fourth characteristic, at proposed § 1112.11(c)(4), would consider a laboratory to be governmental if any of the laboratory's management or technical personnel are government employees. This direct involvement by the government in the operation of the laboratory would represent control in part.
The fifth characteristic, at proposed § 1112.11(c)(5), which would signify a governmental laboratory is if the laboratory has a subordinate position to a governmental entity in its external organizational structure. We would except the circumstance where the only relationship the laboratory has with the governmental entity is that of a regulated entity. In that sense, most laboratories in existence are associated administratively with a government, and we do not consider the existence of governmental regulations applicable to a laboratory to establish governmental control. (For example, the fact that a laboratory may be subject to certain employment requirements or subject to tax regulations does not establish that the laboratory is a government laboratory.) Instead, we intend to consider those laboratories that are organizationally a part of, or formally linked to, the government to be governmental laboratories. In those cases, even if the government is not an owner, it has the means of controlling the laboratory.
Finally, the sixth characteristic, at proposed § 1112.11(c)(6), would list situations in which government control of a laboratory is evident via the authority the government has over the laboratory. We propose that if a government can determine, establish, alter, or otherwise affect the laboratory's testing outcomes, its budget or financial decisions, its organizational structure or continued existence, or whether the laboratory may accept particular offers of work, then the laboratory would be considered governmental.
Proposed § 1112.13 would describe how a third party conformity assessment body may apply for CPSC acceptance of its accreditation. We propose to use the authority granted in section 14(a)(3)(C) of the CPSA to designate signatories to the ILAC–MRA to accredit laboratories to ISO/IEC 17025:2005. For a laboratory to be able to conduct tests under section 14 of the CPSA, however, the CPSC must affirmatively accept that laboratory's accreditation.
Proposed § 1112.13(a) would relate the initial baseline requirements applicable to all laboratory applicants. The proposed baseline requirements are substantially similar to the baseline requirements in the notices of requirements, although the application form (CPSC Form 223) would be revised to correspond with other changes in the proposed rule. The first baseline requirement would be a completed application, CPSC Form 223. On a revised CPSC Form 223, the laboratory would attest to certain facts and characteristics concerning its business, which would determine whether the applicant is independent, firewalled, or governmental. If the laboratory is considered firewalled or governmental, the online CPSC Form 223 will prompt the laboratory to submit the requisite additional documentation. On a revised CPSC Form 223, the laboratory also would attest that it has read, understood, and agrees to the regulations in this part. Proposed § 1112.13(a) also would require that the laboratory update its CPSC Form 223 whenever any information previously supplied on the form changes.
The second baseline criteria would be an accreditation certificate. Each laboratory would be required to be accredited to ISO/IEC Standard 17025:2005, “General requirements for the competence of testing and calibration laboratories.” Because we are proposing to require compliance with a standard that is already published, we must incorporate that standard by reference into these regulations. The proposed rule would note that the Director of the Federal Register approved the incorporation by reference of ISO/IEC 17025:2005 in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. It would note that readers may obtain a copy of ISO/IEC 17025:2005 from the International Organization for Standardization (ISO), 1, ch. de la Voie-Creuse, Case postale 56, CH–1211 Geneva 20, Switzerland; Telephone +41 22 749 01 11, Fax +41 22 733 34 30;
The proposed rule would require accreditation by an accreditation body that is a signatory to the ILAC–MRA. All laboratories also would be required to furnish their statement of scope, and it would have to clearly identify the CPSC rule(s) and/or test method(s) for which CPSC acceptance is sought.
Proposed § 1112.13(b) would state the additional requirements for firewalled laboratories. Section 14(f)(2)(D) of the CPSA mandates that a laboratory only may be accepted as firewalled if the Commission, by order, finds that:
(i) [Acceptance] of the conformity assessment body would provide equal or greater consumer safety protection than the manufacturer's or private labeler's use of an independent third party conformity assessment body; and
(ii) [T]he conformity assessment body has established procedures to ensure that—
(I) [I]ts test results are protected from undue influence by the manufacturer, private labeler, or other interested party;
(II) [T]he Commission is notified immediately of any attempt by the manufacturer, private labeler or other interested party to hide or exert undue influence over test results; and
(III) [A]llegations of undue influence may be reported confidentially to the Commission.
To evaluate whether a laboratory satisfies these criteria, the proposed rule would require that a laboratory seeking CPSC-accepted firewalled status submit copies of various documents to the CPSC. First, the proposed rule would require the laboratory to submit copies of certain established policies and procedures. The laboratory would need to submit its policies and procedures that explain how test results are protected from undue influence by the manufacturer, private labeler, or other interested party. The purpose of reviewing such documents would be to assess whether the laboratory has established the necessary written procedures to preserve its independence from the manufacturer or private labeler. We also would require the laboratory to submit copies of established policies and procedures, indicating that the CPSC will be notified immediately of any attempt to hide or exert undue influence over test results, and policies and procedures explaining that an allegation of undue influence may be reported confidentially to the CPSC. The purpose of reviewing these documents is to ensure that the laboratory has written procedures in place that address when and how the CPSC will be notified of any attempt at undue influence.
Second, the proposed rule would require an applicant laboratory seeking firewalled status to supply copies of training documents, including a description of the training program content, showing how employees are trained on the three policies just described. We propose to require this training annually. If an employee receives such training only once, the employee may forget the information over the course of time, or the importance of the information would not be reinforced. In addition, the issue of staff turnover presents a risk that new employees would not receive the training. An annual training requirement would address these risks.
Third, proposed § 1112.13(b)(2) would require training records listing the staff members who received the training and bearing their signatures. The training records would include training dates, location, and the name and title of the individual providing the training. We propose to require the submission of these training-related documents so that we may assess whether the laboratory is sufficiently and effectively communicating to its employees the need to protect the testing process from undue influence, and that the employees may notify the CPSC immediately and confidentially of any attempt by a manufacturer, private labeler, or other interested party to hide or exert undue influence over test results.
Proposed § 1112.13(b)(2)(iv) and (v) would require firewalled laboratory applicants to submit two organizational charts. One chart would be an organizational chart(s) of the laboratory itself. It would include the names of all personnel, both temporary and permanent, and their reporting relationship within the laboratory. The other organizational chart would identify the reporting relationships of the laboratory within the broader organization (using both position titles and staff names). Finally, we also would require a list of all laboratory personnel with reporting relationships outside of the laboratory. The list would identify the name and title of the relevant laboratory employee(s) and the names, titles, and employer(s) of all individuals outside of the laboratory to whom they report. The organizational charts and the list of employees with outside reporting relationships would help us determine the degree to which the laboratory is independent of the manufacturer or private labeler.
If the Commission determines that the firewalled-specific documents indicate that the laboratory has sufficient safeguards against and procedures concerning undue influence in place, and the laboratory satisfies the baseline criteria, including ISO/IEC 17025:2005 accreditation by an ILAC–MRA signatory body, then the Commission will consider that the applicant laboratory would provide equal consumer safety protection than the manufacturer's or private labeler's use of an independent laboratory.
Proposed § 1112.13(c) would state the additional accreditation requirements applicable to governmental laboratories. Section 14(f)(2)(B) of the CPSA mandates that the Commission may accept the accreditation of a governmental laboratory if:
(i) [T]o the extent practicable, manufacturers or private labelers located in any nation are permitted to choose conformity assessment bodies that are not owned or controlled by the government of that nation;
(ii) [T]he entity's testing results are not subject to undue influence by any other person, including another governmental entity;
(iii) [T]he entity is not accorded more favorable treatment than other third party conformity assessment bodies in the same nation who have been accredited under [section 14];
(iv) [T]he entity's testing results are accorded no greater weight by other governmental authorities than those of other accredited third party conformity assessment bodies accredited under [section 14]; and
(v) [T]he entity does not exercise undue influence over other governmental authorities on matters affecting its operations or on decisions by other governmental authorities controlling distribution of products based on outcomes of the entity's conformity assessments.
To evaluate whether a laboratory satisfies these criteria, the proposed rule would require a governmental laboratory to submit a description that can be in the form of a diagram, which illustrates relationships with other entities, such as government agencies and joint venture partners. Such a document would give us basic information concerning the nature of the relationship between the laboratory and the government. In addition, we would require the laboratory and the relevant governmental entity to each respond to a questionnaire. The questionnaires are designed to elicit information related to the five statutory criteria.
Third, we would require a governmental laboratory to submit a copy of an executed memorandum that addresses undue influence. The purpose of the memorandum is to provide affirmative and continuous communication to the laboratory staff concerning the management policies regarding undue influence, and the staff's responsibilities in implementing the policies. The memorandum would be on company letterhead, from the senior management of the laboratory, and directed to all laboratory staff. The memorandum must be in the primary written language used for business communications in the area in which the laboratory is located, and, if that language is not English, then the laboratory must provide an English translation. The memorandum would need to be displayed prominently at the laboratory for as long as the laboratory is accepted by the CPSC.
The proposed rule would require the memorandum to state certain policies. It would require that the memorandum state that the laboratory's policy is to reject undue influence. We also would have the memorandum require employees to report immediately, to their supervisor or some other designated laboratory official, any attempt at undue influence. It would require the memorandum to state that the laboratory will not tolerate violations of the undue influence policy.
The fourth and final document to be required from governmental laboratory applicants would be an attestation. We would require a senior official of the governmental laboratory, who has the authority to make binding statements of policy on behalf of the laboratory, to attest to several statements related to the application, including that the laboratory does not receive and will not accept favorable treatment from any governmental entity with regard to products for export to the United States that are subject to CPSC jurisdiction. Among other things, the senior official of the governmental laboratory would have to attest that the information in the laboratory's application continues to be accurate, unless the laboratory notifies the CPSC otherwise. Thus, the senior official would be acknowledging a duty to inform the CPSC if any information submitted as part of the application has changed. As another example, the proposal would require the senior official to attest that the laboratory will not conduct CPSC tests in support of a Children's Product Certificate for products produced by a governmental entity that has any ownership or control of the laboratory. The attestation gives us an additional level of assurance that is unique to intergovernmental relationships.
Finally, the proposed rule would state that, if our approval of a governmental laboratory application is dependent upon a recently changed circumstance in the relationship between the laboratory and the governmental entity, and/or a recently changed policy of the related governmental entity, we may require the relevant governmental entity to attest to the details of the new relationship or policy. Such a provision would enable us to verify the changed circumstance prior to our acceptance of the governmental laboratory.
Proposed § 1112.13(d) would state that if a laboratory satisfies both the criteria for governmental status and the criteria for firewalled status, such a laboratory would be required to apply under both categories.
Proposed § 1112.13(e) would require that all application materials be in English. Proposed § 1112.13(f) would require that CPSC Form 223 and all required accompanying documentation be submitted electronically via the CPSC Web site. We have established an electronic application system accessed via our Internet site at:
Finally, proposed § 1112.13(h) would provide that a laboratory may retract an application at any time before the CPSC has acted on it. We would note, however, that a retraction would not end or nullify any enforcement action that the CPSC is authorized to pursue.
Proposed § 1112.15(a) would state, consistent with section 14(a)(3) of the CPSA, that a laboratory may apply to the CPSC for acceptance of its accreditation to test a children's product to a particular CPSC rule and/or test method once the Commission has published the requirements for accreditation of third party conformity assessment bodies to assess conformity with that rule and/or test method. A laboratory would be able to apply for acceptance to more than one CPSC rule and/or test method at a time. Alternatively, a laboratory also would be able to apply separately for various CPSC rules and/or test methods. A laboratory would only be authorized to issue test results for purposes of section 14 of the CPSA for tests that fall within the CPSC rules and/or test methods for which its accreditation has been accepted by the CPSC.
Proposed § 1112.15(b) would list the rules and test methods for which the Commission has published the requirements for accreditation of laboratories. The list is current through August 10, 2011. When any final rule resulting from this proposed rule publishes, we intend to add to this list those CPSC rules and/or test methods for which we have published proposed requirements between October 1, 2011 and the date of the final rule. After any final rule publishes, additions or revisions to this list would be proposed as amendments to this section.
Some notices of requirements contained unique provisions related to exactly what a laboratory's statement of scope must indicate for the CPSC to accept that accreditation. Those unique provisions are included in this list.
In the
In the
We have included the notice of requirements for the safety standard for portable bedrails at proposed § 1112.15(b)(9) in the list because we have published a final rule establishing the safety standard for bed rails (16 CFR part 1224) in the
We will accept retrospective testing for 16 CFR part 1224 under certain circumstances. For the tests contained in 16 CFR part 1224, testing before the effective date of 16 CFR part 1112 will be accepted, if the following conditions are met:
• The children's product was tested by a third party conformity assessment body accredited to ISO/IEC 17025:2005 by a signatory to the ILAC–MRA at the time of the test. The scope of the third party conformity body accreditation must include testing in accordance with
• The third party conformity assessment body's application for acceptance of its accreditation is accepted by the CPSC on or after May 24, 2012 and before the effective date of 16 CFR part 1112.
• The test results show compliance with 16 CFR part 1224.
• The children's product was tested on or after the date of publication in the
• The testing laboratory's accreditation remains in effect through the effective date of 16 CFR part 1112.
Additionally, the notice of requirements pertaining to 16 CFR part 1303, Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paint, is listed at proposed § 1112.15(b)(10). According to our initial notice of requirements for part 1303 (73 FR 54564 (Sept. 22, 2008)), in order for us to accept a laboratory to test children's products for conformity with the lead-paint ban, the laboratory's scope of accreditation had to include 16 CFR part 1303 (73 FR 54565). Part 1303 does not contain a test method. We received comments from the public, asking us to specify test methods to ensure that accreditation bodies are able to determine the acceptable technologies and methods for lead analyses. On April 5, 2011, we published a revision to the notice of requirements for part 1303 to specify particular test methods, one or more of which laboratories must have in their scope of accreditation in order for us to accept their accreditation to test for conformity with the lead paint ban.
Proposed § 1112.15(b)(10) would list the approved test methods for 16 CFR part 1303, “Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paint” and require a third party conformity assessment body to reference one or more of the approved test methods in its statement of scope:
• CPSC Standard Operating Procedure for Determining Lead (Pb) in Paint and Other Similar Surface Coatings, CPSC–CH–E1003–09 and/or CPSC–CH–E1003–09.1;
• ASTM F 2853–10, “Standard Test Method for Determination of Lead in Paint Layers and Similar Coatings or in Substrates and Homogenous Materials by Energy Dispersive X–Ray Fluorescence Spectrometry Using Multiple Monochromatic Excitation Beams.”
The original notice of requirements pertaining to 16 CFR part 1303 did not require reference to any particular test method.
• Third party conformity assessment bodies that were listed on the CPSC's Web site as accepted to 16 CFR part 1303 on April 5, 2011 (the date when the CPSC published the revision to the notice of requirements in the
• Third party conformity assessment bodies that were not listed on the CPSC Web site as accepted to 16 CFR part 1303 on April 5, 2011, and apply for acceptance to 16 CFR part 1303 on or before April 5, 2012, have the option to apply without reference to one or more of the test methods listed in proposed § 1112.15(b)(10);
• Third party conformity assessment bodies that were not listed on the CPSC Web site as accepted to 16 CFR part 1303 on April 5, 2011, and apply for acceptance after April 5, 2012, must have one or more of the test methods listed in proposed § 1112.15(b)(10) on their statement of scope.
Proposed § 1112.15(b)(11) would reference 16 CFR part 1420, Safety Standard for All-Terrain Vehicles. We note that recently, we published a final rule in the
Third party conformity assessment bodies that are accredited to test youth ATVs to the 2007 version of the ATV standard for children's product certification purposes do not need to become reaccredited to the 2010 revision before the next time their accreditation body reassesses them to the ATV standard. However, they may elect to do so. Third party conformity assessment bodies, whose accreditation to test to the 2007 version of the ATV standard has previously been accepted by the CPSC, must be accredited to the 2010 revision of the ATV standard when reassessed by their accreditation body, and submit a Form 223 with the applicable accompanying documents to the CPSC in order to continue to have their accreditation to the ATV standard accepted. We will revise our listing of the third party conformity assessment body when it becomes accredited to the ATV standard and the CPSC accepts their application for accreditation.
For third party conformity assessment bodies that applied for CPSC acceptance of accreditation to the 2007 version of the ATV standard before we accepted the 2010 revision of the ATV standard as a mandatory standard, and the CPSC accepts that accreditation, test results from the third party conformity assessment body can be used for children's product certification purposes until the third party conformity assessment body is reassessed by its accreditation body to the ATV standard. If the third party conformity assessment body wishes to have its accreditation continue to be accepted by the CPSC after it is reassessed by its accreditation body, it must become accredited to the 2010 revision of the standard and submit a new Form 223 with accompanying documents to the CPSC, requesting acceptance of its accreditation to the 2010 revision of the standard.
New third party conformity assessment body applicants that apply for CPSC acceptance on or after May 24, 2012 must be accredited to the 2010 revision when applying for CPSC acceptance of their accreditation to test youth ATVs.
We also note four revisions to our lead-content test methods. Proposed § 1112.15(b)(28) and (29), Lead Content in Children's Metal Jewelry and Limits on Total Lead in Children's Products: Children's Metal Products, would contain two proposed revisions. First, the notices of requirements related to testing for lead content in children's metal jewelry (73 FR 78331 (Dec. 22, 2008)) and total lead in children's products (74 FR 55821 (Oct. 29, 2009)) each listed the test method numbered CPSC–CH–E1001–08 as the required test method for testing for lead in children's metal products (including metal jewelry). We revised that test method in June 2010. The revised method allows for some alternative, simplified procedures for certain portions of the test method. Second, we propose allowing the use of XRF spectrometry to determine the lead content in certain metals. The option of using the revised test methods would be reflected in proposed § 1112.15(b)(28) and (29). Accordingly, the proposed rule would provide that, to be considered for CPSC-acceptance of accreditation to test for lead in children's metal products (including metal jewelry), an applicant laboratory may have either Test Method CPSC–CH–E1001–08 (the original test method) and/or Test Method CPSC–CH–E1001–08.1 (the revised test method allowing alternative, simplified procedures) and/or the proposed revision of the test method, Test Method CPSC–CH–E1001–08.2 (allowing the use of XRF for certain metals) in its scope of accreditation.
Third, proposed § 1112.15(b)(30), Limits on Total Lead in Children's Products: Non-Metal Children's Products, also would contain a proposed revision relative to the original notice of requirements. The notice of requirements related to testing for total lead in children's products (74 FR 55821 (Oct. 29, 2009)) listed the test method numbered CPSC–CH–E1002–08 as the required test method for testing for lead in non-metal children's products. We revised that test method in June 2010; the revised method allows for some alternative, simplified procedures for certain portions of the test method. Fourth, we propose allowing the use of XRF to determine the lead content in glass materials and crystals. This option would be reflected in proposed § 1112.15(b)(30). Accordingly, the proposed rule would state that, to be considered for CPSC acceptance of accreditation to test for lead in non-metal children's products, an applicant laboratory may have Test Method CPSC–CH–E1002–08 (the original test method) and/or Test Method CPSC–CH–E1002–08.1 (the revised test method allowing alternative, simplified procedures) and/or Test Method CPSC–CH–E1002–08.2 (allowing the use of XRF for glass materials and crystals) in its scope of accreditation.
We have identified a potential opportunity to reduce the testing burdens for certification of conformity related to the new requirements in ASTM F 963–11. Among the changes in ASTM F 963–11, are changes in the requirements and test methods for eight elements of interest: antimony, arsenic, barium, cadmium, chromium, lead, mercury, and selenium. ASTM F 963–11 extends the requirements from prior versions (which had limits for these elements in surface coatings) to consider, in addition, these elements in substrates. For substrates and surface coatings, ASTM F 963–11 limits soluble migration of each of these elements when tested in dilute acid. Additionally, a new optional screening test is established in section 8.3.1 ASTM F 963–11, which is based on the total concentration of those elements, determined by digesting the samples completely, in hot, concentrated, strong acids, using methods based on CPSC test methods for lead content.
ASTM F 963–11 allows the screening test from section 8.3.1 to be performed on a toy to establish that the total concentration of each of the eight elements of interest is lower than each of the soluble limits for those elements. For example, a toy that has only 10 ppm of each of those elements could not possibly leach more than the soluble limits for any of the elements (which are all greater than 10 ppm); and thus, the solubility test could be skipped. In another example, a toy that contained 2,000 ppm barium would not pass the screening test for barium and would require solubility testing according to section 8.3 to determine how much barium would leach out (compared to the limit of 1,000 ppm soluble barium).
We recognize that firms potentially could reduce testing costs if a single test would meet the screening test of section 8.3.1 of ASTM F 963–11 and the CPSIA lead content requirements for paint, metals, or nonmetals. The methods provided in section 8.3.1 of ASTM F 961–11 refer to CPSC test methods, but with a prescribed modification. The CPSC test methods for lead in paint (
Proposed § 1112.15(b)(31) would reference the limits on phthalates in children's toys and child care articles. The notice of requirements pertaining to phthalates approved of two test methods, at least one of which must be included in a laboratory's accreditation scope document in order for us to accept the laboratory to test for the limits on phthalates, and both test methods are included in proposed § 1112.15(b)(31).
The notice of requirements pertaining to toys also contained unique provisions related to exactly what a laboratory's statement of scope must indicate for the CPSC to accept that accreditation.
Additionally, proposed § 1112.15(b)(32) would reflect recent revisions to the ASTM F 963 standard. On February 15, 2012, the Commission, pursuant to section 106(g) of the CPSIA, accepted the revised toy standard (ASTM F 963–11) as a consumer product safety standard. 77 FR 10358, (February 22, 2012). ASTM F 963–11 is, in many ways, equivalent or functionally equivalent to ASTM F 963–08. For example, in the notice of requirements that we issued on August 3, 2011, some 23 sections in ASTM F 963–08 remain unchanged in ASTM F 963–11, and another seven sections in ASTM F 963–11 are functionally equivalent to their earlier counterparts in ASTM F 963–08. (By “functionally equivalent,” we mean that the standards organization made certain changes in the revised standard compared to the earlier standard, but the changes are not substantial and do not affect the associated conformance testing.) Consequently, the Commission is continuing its acceptance of accreditation of third party conformity assessment bodies for those provisions in ASTM F 963–11 that are equivalent or functionally equivalent to their corresponding provisions in ASTM F 963–08. The third party conformity assessment bodies should test toys for compliance with ASTM F 963–11, and based on such testing, manufacturers should issue certificates under section 14(a)(2) of the CPSA.
Third party conformity assessment bodies that are accredited to test to provisions of ASTM F 963–08 that are equivalent or functionally equivalent for children's product certification purposes do not need to become reaccredited to the ASTM F 963–11 revision before the next time their accreditation body reassesses them to ASTM F 963 toy standard. However, they may elect to do so. Third party conformity assessment bodies whose accreditation to test to ASTM F 963–08 has previously been accepted by the CPSC must be accredited to the ASTM F 963–11 revision when reassessed by their accreditation body, and they must submit a Form 223 with the applicable accompanying documents to the CPSC in order to continue to have their accreditation to ASTM F 963–11 accepted. We will revise our listing of the third party conformity assessment body when it becomes accredited to the ASTM F 963–11 standard and the CPSC accepts their application for accreditation.
For third party conformity assessment bodies that applied for CPSC acceptance of accreditation to ASTM F 963–08 before the Commission accepted ASTM F 963–11 as a mandatory standard, and before we accepted that accreditation, test results from the third party conformity assessment body for those provisions of ASTM F 963–08 that are equivalent or functionally equivalent to ASTM F 963–11, can be used for children's product certification purposes until the third party conformity assessment body is reassessed by its accreditation body to the ASTM F 963 toy standard. If the third party conformity assessment body wishes to have its accreditation continue to be accepted by the CPSC after it is reassessed by its accreditation body, it must become accredited to the ASTM F 963–11 and submit a new Form 223 with accompanying documents to the CPSC, requesting acceptance of its accreditation to the 2011 revision of the standard.
New third party conformity assessment body applicants that apply for CPSC acceptance on or after May 24, 2012 must be accredited to the ASTM F 963–11 revision when applying for CPSC acceptance of their accreditation to test toys under ASTM F 963.
ASTM F 963–11, however, did make substantial changes to certain provisions in ASTM F 963–08 or added new testing or requirements. These changes are seen in the following sections of ASTM F 963–11:
• Section 4.3.5.1(2), Surface Coating Materials—Soluble Test for Metals;
• Section 4.3.5.2, Toy Substrate Materials;
• Section 4.15, Stability and Overload Requirements;
• Section 4.37, Yo-Yo Elastic Tether Toys; and
• Section 4.39, Jaw Entrapment in Handles and Steering Wheels.
Proposed § 1112.15(b)(32) would establish and codify those provisions of ASTM F 963–11 that would require accreditation and third party testing. However, we are aware that another revision to ASTM F 963 may occur (see
We will accept testing on children's products conducted by a third party conformity assessment body accepted by the Commission for those sections of ASTM F 963–08 that are considered equivalent or functionally equivalent to ASTM F 963–11, as discussed above. For those tests in ASTM F 963–11 that have no equivalent or functionally equivalent test in ASTM F 963–08, testing before the effective date of ASTM F 963–11 will be accepted, if the following conditions are met:
• The children's product was tested by a third party conformity assessment body accredited to ISO/IEC 17025:2005 by a signatory to the ILAC–MRA at the time of the test. The scope of the third party conformity assessment body accreditation must include the tests contained in the applicable nonequivalent section of ASTM F 963–
• The third party conformity assessment body's application for acceptance of its accreditation is accepted by the CPSC on or after May 24, 2012 and before the effective date for 16 CFR part 1112.
• The test results show compliance with the nonequivalent section(s) of ASTM F 963–11.
• The children's product was tested on or after February 22, 2012, and before the effective date of 16 CFR part 1112.
• The third party conformity assessment body's accreditation remains in effect through the effective date of 16 CFR part 1112.
Proposed § 1112.17 would establish the procedures related to CPSC action on a third party conformity assessment body's application for CPSC acceptance of its accreditation.
Proposed § 1112.17(a) would state that CPSC staff will review each application, and they may contact applicant laboratories with questions or to request submission of missing information.
Proposed § 1112.17(b), consistent with section 14(f)(2)(D) of the CPSA, would state that an application from a firewalled laboratory will be accepted by order of the Commission, if the Commission makes certain findings that are required by the statute; the required findings are enumerated. We intend that CPSC staff will act on applications from independent and governmental laboratories, as long as such action is consistent with a proper delegation of authority from the Commission.
Proposed § 1112.17(c) would state that the CPSC will communicate its decision on each application, in writing, to the applicant; the written decision may be by electronic mail.
In accordance with section 14(a)(3)(E) of the CPSA, proposed § 1112.19 would provide that the CPSC will maintain on its Web site an up-to-date listing of third party conformity assessment bodies whose accreditations have been accepted, and the scope of each acceptance. We would update the listing regularly to account for changes of information and status, such as the addition of CPSC rules and/or test methods to a scope of accreditation; changes to accreditation certificates; or a new address. In addition, we propose to update the listing to indicate changes in status, such as if a laboratory voluntarily discontinues its participation with the CPSC, or if the CPSC suspends or withdraws our acceptance of the accreditation of a laboratory (which we discuss later in this document).
Proposed § 1112.21 would require a CPSC-accepted laboratory to use only a test method specified by the CPSC for a particular CPSC rule and/or test method, for any test conducted for purposes of section 14 of the CPSA. The proposed rule would require laboratories to use a CPSC-specified test method(s) for several reasons. First, a specified test method firmly establishes how to generate test results that are acceptable to the CPSC as indicative of compliance, so there may be a common understanding between laboratories and the CPSC. Second, by specifying the test method, greater consistency among tests conducted at different laboratories is established. Variations between laboratory tests are reduced. Finally, it serves as a common procedure that accreditation bodies can use to evaluate a laboratory for a particular CPSC rule and/or test method. By evaluating to a CPSC-specified test method, the accreditation bodies can determine whether the laboratory meets competency requirements to carry out that particular test.
The purpose of having each third party conformity assessment body satisfy CPSC requirements in order for its accreditation to be eligible for acceptance is to promote competent and consistent test results across laboratories. Proposed § 1112.23(a) would prohibit subcontracting of tests conducted for purposes of section 14 of the CPSA, unless the subcontract is to a CPSC-accepted laboratory. In addition, the CPSC's acceptance of the scope of accreditation of the subcontracting laboratory must include the test being subcontracted. For example, in order for Laboratory A to subcontract the test for lead-containing paint to Laboratory B, Laboratory B would need to have had its accreditation to 16 CFR part 1303 (lead-containing paint) accepted by the CPSC. In this example, we would refer to Laboratory A as the prime contractor, and Laboratory B would be the subcontractor.
Any violation of this provision would constitute compromising the integrity of the testing process and could be grounds for withdrawal of the CPSC's acceptance of the accreditation of the prime- and/or sub- contracting laboratory under proposed § 1112.47. Given this restriction and staff's concerns about compromising the integrity of the testing process, we request comment as to whether subcontracting ought to be allowed and, if so, under what circumstances. For example, for what reasons should subcontracting of the preparation of samples for flammability testing, such as laundering or dry cleaning, be allowed? We are also interested in comments regarding subcontracting under other CPSC regulations and the relationship between subcontracting and the technical competence and protection against undue influence of the third party testing program as a whole. Under what conditions could we allow the CPSC-accepted laboratory to vouch for the independence and technical competence of its subcontractors and their testing processes without requiring accreditation of the subcontractor by a signatory to the ILAC–MRA? How would subcontracting affect the recordkeeping requirements of this rule?
Proposed § 1112.23(b) would state that the provisions of part 1112 apply to all CPSC-accepted laboratories, even if they are a prime contractor and/or a subcontractor.
Proposed § 1112.25 would require third party conformity assessment bodies to retain certain records related to the tests conducted for purposes of
Proposed § 1112.25(a) would state that all required records must be legible. In terms of particular records, we would first require that all test reports and technical records related to tests conducted for purposes of section 14 of the CPSA be maintained for a period of at least five years from the date the test was conducted. We propose a 5-year retention period because the statute of limitations on civil penalties under the CPSA is five years.
Proposed § 1112.25(a) would require that, where a report for purposes of section 14 of the CPSA provided by the laboratory to a customer is different from the test record, the laboratory also must retain the report provided to the customer for a period of at least five years from the date the test was conducted. Finally, the proposed rule also would require any and all laboratory internal documents describing testing protocols and procedures (such as instructions, standards, manuals, guides, and reference data) that have applied to a test conducted for purposes of section 14 of the CPSA be retained for a period of at least five years from the date such test was conducted.
Proposed § 1112.25(b) would state that, upon request by the CPSC, the laboratory must make any and all of the records required by this section available for inspection, either in hard copy or electronic form, within 48 hours. We would require that, if the records are not in English, copies of the original records be made available to the CPSC within 48 hours, and an English translation of the records be made available by the laboratory within 30 calendar days of the date we requested an English translation.
Proposed § 1112.27 would require that each CPSC-accepted third party conformity assessment body allow an officer or employee duly designated by the Commission to enter its facility and conduct an inspection as a condition of the continued CPSC-acceptance of its accreditation. Such inspections would not be routine and/or for the purpose of confirming that the laboratory satisfies accreditation requirements. We intend that audits (addressed in subpart C of part 1112) be the vehicle by which we confirm that a laboratory continues to satisfy the requirements necessary for our acceptance of its accreditation. Rather, such inspections would be limited to inspections related to a CPSC investigation into whether a ground exists for adverse action against a third party conformity assessment body. An ability to enter and inspect a laboratory would help us investigate circumstances, such as an allegation of undue influence or the presence in the market of a product that fails to comply with a children's product safety rule, yet is accompanied by a certificate based on a passing third party test result. In those cases, our investigation may need to include the laboratory so that we could attempt to obtain facts relevant to the case at hand.
We would conduct such inspections in accordance with 16 CFR 1118.2,
Proposed § 1112.29(a) would provide that a third party conformity assessment body may voluntarily discontinue participation as a CPSC-accepted laboratory at any time and for any portion of its scope that is accepted by the CPSC. It also would provide the procedural requirements for such voluntary discontinuance.
To voluntarily discontinue its participation as a CPSC-accepted laboratory, the laboratory would have to notify us in writing. This notification may be sent electronically. The notice would have to include the name, address, phone number, and electronic mail address of the laboratory and the person responsible for submitting the request. The notice also would need to include the scope of the discontinuance; the beginning date for the discontinuance; a statement that the laboratory understands that it must reapply for acceptance of the accreditation scope for which it is requesting discontinuance; and verification that the person requesting the discontinuance has the authority to make such a request on behalf of the laboratory.
Proposed § 1112.29(b) would state that we may verify the information submitted in a notice of voluntary discontinuance.
Proposed § 1112.29(c) would explain that, either upon receipt of a notice for voluntary discontinuance as a CPSC-accepted third party conformity assessment body or after verifying the information in a notice, we will update our Web site to indicate that we no longer accept the accreditation of the third party conformity assessment body as of the date provided and for the scope indicated in the notice.
Proposed § 1112.29(d) would note that we may begin or continue an investigation related to an adverse action under this part, or any other legal action, despite the voluntary discontinuation of a laboratory.
As explained in the audit final rule published elsewhere in this issue of the
The reassessment portion of an audit is conducted, at a minimum, at the frequency established by its accreditation body. Proposed § 1112.35(b) would establish when the examination portion of an audit must be conducted.
Proposed § 1112.35(b)(1) would have each laboratory submit a new CPSC Form 223 and applicable accompanying documentation, no less than every two years. The proposed rule would begin the implementation of this provision by assigning an audit date to each CPSC-accepted laboratory. The initial audit date, which will be assigned based on such factors as when the laboratory was last accepted by the CPSC, and the expiration date of the laboratory's ISO/IEC 17025:2005 certificate, will be no sooner than three months, and no later than two years, after any final rule resulting from this proposed rule is published. Laboratories that were not previously CPSC-accepted laboratories and that apply to the CPSC after the publication of a final rule resulting from this proposed rule will be issued an audit date based upon the date of CPSC acceptance of accreditation as posted on the CPSC Web site.
Proposed § 1112.35(b)(2) would note that proposed § 1112.13(a)(1) would require a third party conformity assessment body to submit a new CPSC Form 223 whenever the information supplied on the form changes. If the third party conformity assessment body submits a new CPSC Form 223 to provide updated information, the third party conformity assessment body may elect to have the new CPSC Form 223 satisfy the audit requirement of proposed § 1112.35(b)(1). If the laboratory also intends to satisfy the audit requirement of proposed § 1112.35(b)(1), it would need to indicate that intent clearly when it submits a CPSC Form 223. In addition, the laboratory would need to upload all applicable accompanying documentation.
Proposed § 1112.35(b)(3) would state that, at least 30 days before the date by which a third party conformity assessment body must submit a CPSC Form 223 for audit purposes, we will notify the body, in writing, of the impending audit deadline. The notice may be delivered by electronic mail. A laboratory may request an extension of the deadline for the examination portion of the audit, but it must indicate how much additional time is requested, and it also must explain why such an extension is warranted. The CPSC will notify the laboratory whether its request for an extension has been granted.
Proposed subpart D would implement section 14(e) of the CPSA. It would establish whether, when, and how we may deny a third party conformity assessment body's application and suspend and/or withdraw a previously-granted acceptance of a laboratory's accreditation. It also would establish how a person may submit to the CPSC information alleging a ground for adverse action, including an allegation of undue influence. This subpart also would address the publication of adverse actions.
Proposed § 1112.41 would list the potential adverse actions we may take against a third party conformity assessment body. Proposed § 1112.41(a) lists the possible actions: denial of acceptance of accreditation; suspension of acceptance of accreditation; or withdrawal of acceptance of accreditation. These actions will each be discussed further below, in relation to the proposed sections that address each possible action.
Proposed § 1112.41(b) would state that withdrawal of acceptance of accreditation can be on a temporary or permanent basis, and the CPSC may immediately withdraw its acceptance in accordance with § 1112.53 of this part.
Proposed § 1112.43(a) would list the bases for denying an application for acceptance of accreditation from a third party conformity assessment body. There would be three reasons for denying an application.
First, proposed § 1112.43(a)(1) would state that we may deny a laboratory's application if the laboratory failed to submit a complete application. We would state that all information and/or attestations required by CPSC Form 223 are necessary components of an application. We also would state that all accompanying documentation required in connection with an application is a necessary component of an application. We would provide notice of a deficiency and would deny an application if the laboratory failed to correct the deficiency within 30 days.
Proposed § 1112.43(a)(2) would provide the second basis upon which we would be able to deny an application. The proposed rule would address the submission of false or misleading information concerning a material fact(s) on either an application, any materials accompanying an application, or on any other information provided to the CPSC related to a laboratory's ability to become or to remain a CPSC-accepted laboratory. A fact would be considered material if its inclusion in the application, any materials accompanying an application, or on any other information provided to the CPSC, would have resulted in the application's denial.
Third, proposed § 1112.43(a)(3) would state that we may deny an application if the applicant laboratory failed to satisfy the necessary requirements described in § 1112.13, such as ISO/IEC 17025:2005 accreditation by an ILAC–MRA signatory accreditation body for the scope for which acceptance of accreditation is being sought.
Proposed § 1112.43(b) would state that the CPSC's denial of an application will follow the process described in § 1112.51 of this part.
Section 14(e)(3) of the CPSA states that the Commission may suspend the accreditation of a conformity assessment body if it fails to cooperate with the Commission in an investigation under section 14 of the CPSA. Proposed § 1112.45 would implement that statutory provision.
The procedures relevant to adverse actions would be addressed in proposed § 1112.51, which we will describe and discuss more fully below. For current purposes, however, we note that proposed § 1112.51(a) would provide that the CPSC may investigate when it is aware that grounds for an adverse action may exist. For example, if we receive an allegation of undue influence concerning a CPSC-accepted laboratory, we may (depending on the strength of the allegation) launch an investigation. As another example, if a product was
Section 1112.45(a) would state that we may suspend our acceptance of a laboratory's accreditation for any portion of its CPSC scope when the laboratory fails to cooperate with an investigation under section 14 of the CPSA. The proposed rule would state further that a third party conformity assessment body “fails to cooperate” when it does not respond to CPSC inquiries or requests, or responds in a manner that is unresponsive, evasive, deceptive, or substantially incomplete, or when the laboratory fails to cooperate with an investigatory inspection under proposed § 1112.27.
If we determine that a laboratory is not cooperating with an investigation, under proposed § 1112.51(b), we would provide an initial notice of adverse action to the laboratory. This initial notice would state that the CPSC proposes to suspend the laboratory, and it would specify the actions the laboratory would need to take to avoid suspension. Proposed § 1112.45(b) would state that suspension will last until the laboratory complies, to our satisfaction, with required actions, as outlined in the initial notice described in proposed § 1112.51(b), or until we withdraw our acceptance of the laboratory.
Proposed § 1112.45(c) would provide that we will lift the suspension of CPSC acceptance if we determine that the third party conformity assessment body is cooperating sufficiently with the investigation. The suspension would lift as of the date of our written notification to the laboratory, which may be by electronic mail, indicating that we are lifting the suspension.
Proposed § 1112.47 would establish the grounds upon which we may withdraw acceptance of the accreditation of a third party conformity assessment body for any portion of its CPSC scope.
The first ground for withdrawal would be that a manufacturer, private labeler, governmental entity, or other interested party has exerted undue influence on such conformity assessment body, or otherwise interfered with, or compromised, the integrity of the testing process. Proposed § 1112.3 would define “undue influence” to mean that a manufacturer, private labeler, governmental entity, or other interested party affects a third party conformity assessment body, such that commercial, financial, or other pressures compromise the integrity of its testing processes or results. Undue influence can take many forms. For example, it would be undue influence if a laboratory director instructs laboratory personnel to alter a test report to indicate a passing result, rather than a failing result, because a customer has exerted pressure on the laboratory director by threatening to withdraw its business if the laboratory report indicates a failing result. Another example of undue influence would be if a manager of a firewalled laboratory asks a laboratory technician not to report a failing test result because it would delay a large shipment of products. Similarly, in the case of a firewalled laboratory, a manufacturing manager who urges the laboratory to complete the testing promptly and “cut corners” on the normal testing procedures so that the factory can ship product to meet a production quota for the month, would be attempting to apply undue influence. In the governmental laboratory context, undue influence might take the form of a government official influencing a laboratory to report falsely that a sample passed a test in order to facilitate exports.
The second ground for withdrawal, at proposed § 1112.47(b), would be that the third party conformity assessment body failed to comply with an applicable protocol, standard, or requirement under proposed subpart C of this part. This provision implements section 14(e)(1)(B) of the CPSA.
The third ground for withdrawal, at proposed § 1112.47(c), would state that we may withdraw our acceptance of the accreditation of a laboratory if the laboratory fails to comply with any provision in subpart B of this part. As a reminder, proposed subpart B would establish the general requirements pertaining to third party conformity assessment bodies, such as requirements, processes, and timing related to applying for CPSC acceptance, recordkeeping requirements, and limitations on subcontracting. Thus, examples of failure to comply with subpart B would include a laboratory that loses its ISO/IEC 17025:2005 accreditation (either for the entire laboratory or for any portion of its CPSC scope) or has such accreditation suspended; a firewalled laboratory that fails to continue to satisfy the relevant statutory criteria; or a laboratory that fails to use, in relation to a test conducted for purposes of section 14 of the CPSA, a CPSC-specified test method.
Proposed § 1112.49(a) would allow any person to submit information alleging that one or more of the grounds for adverse action exists. The information may be submitted in writing or electronically. Any request for confidentiality would need to be indicated clearly in the submission.
Proposed § 1112.49(a) also would list the information to be included in a submission alleging grounds for adverse action. First, the submission should include the name and contact information of the person making the allegation. Second, the submission should identify the laboratory against whom the allegation is being made, as well as any officials or employees of the laboratory relevant to the allegation, in addition to contact information for those individuals. Third, a person alleging a ground for adverse action should identify any manufacturers, distributors, importers, private labelers, or governmental entities relevant to the allegation, along with any officials or employees of the manufacturers, distributors, importers, private labelers, and/or governmental entities relevant to the allegation, as well as contact information for those individuals. Fourth, a submission should include a description of acts and/or omissions to support each asserted ground for adverse action. Generally, the submission should describe, in detail, the basis for the allegation that grounds for adverse action against a laboratory exists. In addition to a description of the acts and omissions and their significance, a description may include: dates, times, persons, companies, governmental entities, locations, products, tests, test results, equipment, supplies, frequency of occurrence, and negative outcomes. When possible, the submission should attach documents, records, photographs, correspondence, notes, electronic mails, or any other information that supports the basis for the allegations. Finally, a submission of grounds for adverse action should include a description of the impact of the acts and/or omissions, where known.
Proposed § 1112.49(b) would state that, upon receiving the information, we
Proposed § 1112.51 would describe the process by which we may deny an application from a laboratory, suspend our acceptance of the accreditation of a laboratory, withdraw our acceptance of the accreditation of a laboratory on a temporary or permanent basis; and/or immediately temporarily withdraw our acceptance of the accreditation of a laboratory.
Proposed § 1112.51(a)(1) would state that investigations, for purposes of part 1112, are investigations into grounds for an adverse action against a third party conformity assessment body. Proposed § 1112.51(a)(2) would explain that we would use our
Proposed § 1112.51(a)(3) would provide that an investigation under this part may include: any act we may take to verify the accuracy, veracity, and/or completeness of information received in connection with an application for acceptance of accreditation; a submission alleging grounds for an adverse action; or any other information we receive, which relates to a laboratory's ability to become or remain a CPSC-accepted laboratory.
Proposed § 1112.51(a)(4) would state that we would begin an investigation by providing written notice, which may be electronic, to the laboratory. The notice would inform the laboratory that we have received information sufficient to warrant an investigation, and it would describe the information received by the CPSC, as well as describe our investigative process. The notice also would inform the laboratory that failure to cooperate with a CPSC investigation is grounds for suspension.
Proposed § 1112.51(a)(5) would state that any notice sent by the CPSC under proposed § 1112.35(b)(3) informing the third party conformity assessment body that it must submit a CPSC Form 223 for audit purposes, constitutes a notice of investigation for purposes of this section. The examination portion of an audit under § 1112.33(c) of this part (which we have finalized elsewhere in this issue of the
Failure to cooperate in an investigation under this part is grounds for the CPSC to suspend its acceptance of the accreditation of a laboratory under proposed § 1112.45. In addition, we note that section 19(a)(13) of the CPSA makes it unlawful for any person to make a material misrepresentation to an officer or employee of the Commission in the course of an investigation.
Proposed § 1112.51(b) would state that if, after investigation, we determine that grounds for adverse action exist, and we propose to take an adverse action against a laboratory, we would notify the laboratory, in writing, which may be electronic, about the proposed adverse action. If the proposed adverse action is suspension or withdrawal, the CPSC's notice formally would begin a proceeding to suspend or withdraw our acceptance of its accreditation, as described in section 14(e) of the CPSA. The notice would contain the CPSC's proposed adverse action; specify grounds on which the proposed adverse action is based; and provide findings of fact to support the proposed adverse action. This notice also would contain, when appropriate, specific actions a third party conformity assessment body must take to avoid an adverse action. For example, if a laboratory submitted an incomplete application, we would notify the laboratory of the deficiencies that the laboratory would need to remedy to avoid denial of the application. Also, when the proposed adverse action is withdrawal, the notice would contain consideration of the criteria set forth in proposed § 1112.51(d)(1).
The notice in proposed § 1112.51(b) also would contain the time period by which a laboratory has to respond to the notice. In general, the notice would inform the laboratory that it has 30 calendar days to respond. A laboratory may request an extension of the response time, but it must explain why such an extension is warranted and indicate the amount of additional time needed for a response. Finally, the notice would state that, except under proposed § 1112.53 (which we discuss below in section IV.D.7 of this preamble), a CPSC-accepted laboratory would be able to continue to conduct tests for purposes of section 14 of the CPSA until a Final Notice of adverse action is issued.
Proposed § 1112.51(c) would address how the laboratory may respond to the initial notice. The proposed rule would require the laboratory's response to be in writing, which may be by electronic mail, and in English.
Responses contemplated under proposed § 1112.51(c) could include, but would not be limited to, an explanation or refutation of material facts upon which the CPSC's proposed action is based, supported by documents or a sworn affidavit; results of any internal review of the matter, and action(s) taken as a result; or a detailed plan and schedule for an internal review. Proposed § 1112.51(c) would explain that the response is the laboratory's opportunity to state its case that the ground(s) for adverse action does not exist, or explain why the CPSC should not pursue the proposed adverse action, or any portion of the proposed adverse action. If a laboratory responds to the notice in a timely manner, we would review the response, and, if necessary, conduct further investigation to explore or resolve issues bearing on whether grounds exist for adverse action, and the nature and scope of the proposed adverse action. If a laboratory does not submit a response to the notice in a timely manner, we would be able to proceed to a Final Notice, as described in proposed § 1112.51(e), without further delay.
Proposed § 1112.51(d) would address the adverse action proceeding. Proposed § 1112.51(d)(1) would reiterate the factors that we must consider in any proceeding to withdraw under section 14(e)(2)(A) of the CPSA. The proposed rule would state that we will consider the gravity of the laboratory's action or failure to act, including: Whether the action or failure to act resulted in injury, death, or the risk of injury or death; whether the action or failure to act constitutes an isolated incident or represents a pattern or practice; and whether and when the third party conformity assessment body initiated remedial action.
Proposed § 1112.51(d)(2) would state that, in all cases, we would review and take under advisement, the response provided by the third party conformity assessment body. Except for cases under proposed § 1112.51(d)(3), we would determine what action is appropriate under the circumstances. Proposed § 1112.51(d)(3) would clarify that any suspension or withdrawal of a firewalled laboratory would occur by order of the Commission. We consider this provision to be consistent with section 14(f)(2)(D) of the CPSA and its requirement that the accreditation of a firewalled laboratory may be accepted by Commission order only.
Proposed § 1112.51(d)(4) would reiterate section 14(e)(2)(B)(i) of the CPSA, and would state that the CPSC may withdraw its acceptance of the accreditation of a laboratory on a
Proposed § 1112.51(e) would detail the Final Notice. If, after reviewing a laboratory's response to a notice, and conducting additional investigation, where necessary, we determine that grounds for adverse action exist, we would send a Final Notice to the laboratory, in writing, which may be electronic. The Final Notice would state the adverse action that we are taking, the specific grounds on which the adverse action is based, and the findings of fact that support the adverse action. When the adverse action is withdrawal, the Final Notice would address the consideration of the criteria as set forth in proposed § 1112.51(d)(1) and would state whether the withdrawal is temporary or permanent, and, if the withdrawal is temporary, the duration of the withdrawal. The Final Notice would inform the laboratory that its accreditation is no longer accepted by the CPSC as of the date of the Final Notice of denial, suspension, or withdrawal for any specified portion(s) of its CPSC scope. The Final Notice also would inform the laboratory that the CPSC Web site will be updated to reflect adverse actions taken against a previously CPSC-accepted laboratory. Finally, the Final Notice would inform the laboratory whether it may submit a new application.
Proposed § 1112.51(f) would state that, upon receipt of a Final Notice, a third party conformity assessment body, as applicable, may submit a new application (if the Final Notice indicated such) or file an Administrative Appeal.
Proposed § 1112.51(g) would address Administrative Appeals. Except for cases covered in proposed § 1112.51(g)(2), a laboratory could file an Administrative Appeal with the Office of the Executive Director. The Administrative Appeal would need to be sent by mail within 30 calendar days of the date on the Final Notice; proposed § 1112.51(g) would provide the appropriate mailing and electronic mail addresses. The proposed rule would require all appeals to be in English; to explain the nature and scope of the issues appealed from in the Final Notice; and describe, in detail, the reasons why the laboratory believes that no grounds for adverse action exist.
The Executive Director would issue a Final Decision within 60 calendar days of receipt of an Administrative Appeal. If the Executive Director's Final Decision would require more than 60 calendar days, he or she would notify the third party conformity assessment body that more time is required, state the reason(s) why more time is required, and, if feasible, include an estimated date for a Final Decision to issue.
Proposed § 1112.51(g)(2) would address the circumstance in which the Commission has suspended or withdrawn its acceptance of the accreditation of a firewalled laboratory. Because suspensions and withdrawals of firewalled laboratories must occur by order of the Commission, Administrative Appeals, in these cases, would be filed with the Commission. The Administrative Appeal would need to be sent to the Office of the Secretary by mail within 30 calendar days of the date on the Final Notice. The proposed rule would require all appeals to be in English, to explain the nature of the issues appealed in the Final Notice, and to describe in detail the reasons why the laboratory believes that no ground(s) exist for adverse action.
Under proposed § 1112.51(b)(7) a CPSC-accepted third party conformity assessment body generally would be able to continue to conduct tests for purposes of section 14 of the CPSA during an investigation and the procedures leading up to an adverse action, until a Final Notice of adverse action is issued. Proposed § 1112.53 would establish a means of immediately and temporarily withdrawing the accreditation of a laboratory in the rare circumstance that it would be in the public interest to remove our acceptance of the laboratory while we pursue an investigation and potential adverse action against the laboratory under proposed § 1112.51.
Section 12 of the CPSA addresses imminent hazards. Proposed § 1112.53 would use section 12 of the CPSA as a guide. We do not foresee many circumstances under which we would be so concerned with the testing conducted by a CPSC-accepted laboratory that we would need to stop the laboratory from conducting third party tests of children's products while we investigate and proceed against the laboratory. However, because any such circumstances would endanger the public, the proposed rule would enable us to do exactly that in certain prescribed conditions and after following particular procedures.
Proposed § 1112.53(a) would state that, when it is in the public interest to protect health and safety, and notwithstanding any other provision of this part, we would be able to immediately and temporarily withdraw our acceptance of a laboratory's accreditation for any portion of its CPSC scope while we pursue an investigation and potential adverse action. Proposed § 1112.53(a)(1) would define “in the public interest to protect health and safety” to mean that the CPSC has credible evidence that: (1) The integrity of test(s) being conducted under a scope for which we have accepted the laboratory's accreditation have been affected by undue influence or otherwise interfered with or compromised; and (2) any portion of a CPSC scope for which we have accepted the laboratory's accreditation involve a product(s) which, if noncompliant with CPSC rules, bans, standards, and/or regulations, constitutes an imminently hazardous consumer product under section 12 of the CPSA.
Proposed § 1112.53(a)(2) would state that, when presented with an allegation that, if credible, would result in immediate and temporary withdrawal of CPSC acceptance of a third party conformity assessment body's accreditation, the investigation and adverse action procedures described in § 1112.51 apply, except that instead of the timeframes described in § 1112.51, the following timeframes would apply when the CPSC pursues immediate and temporary withdrawal: The Initial Notice will generally inform the third party conformity assessment body that it has 7 calendar days to respond; an administrative appeal of a Final Notice of immediate and temporary withdrawal will be timely if filed within 7 calendar days of the date of the Final Notice.
Proposed § 1112.53(b) would state that, if the laboratory is already the subject of an investigation or adverse action process, the immediate and temporary withdrawal would remain in effect until either we communicate in writing that the immediate and temporary withdrawal has been lifted, the investigation concludes and we do not propose an adverse action, or the adverse action process concludes with denial, suspension, or withdrawal. Under proposed § 1112.53(c), if the laboratory is not already the subject of an investigation or adverse action process under § 1112.51, an investigation under § 1112.51(a) would be launched based on the same information that justified the immediate and temporary withdrawal.
Proposed § 1112.55 would state that, immediately following a final adverse action, we would be able to publish the fact of a final adverse action, the text of a final adverse action, or a summary of the substance of a final adverse action. In addition, after issuance of a final adverse action, we would amend our Web site listing of CPSC-accepted laboratories to reflect the nature and scope of such adverse action.
The Commission's regulations on investigations, inspections, and inquiries under the CPSA are located at 16 CFR part 1118. Subpart A of part 1118 prescribes CPSC procedures for investigations, inspections, and inquiries. Section 1118.2 addresses topics such as how the CPSC conducts an inspection, which sites the CPSC has authority to inspect, and what the CPSC may view or obtain during an inspection.
The proposed rule would amend § 1118.2(a) in two ways. First, it would include firewalled third party conformity assessment bodies as entities that we may inspect. This amendment is necessary to conform § 1118.2(a) with the statutory language in section 16(a) of the CPSA and the inspection provision at proposed § 1112.27. Second, it would remove the word “consumer” before the word “product” throughout paragraph (a), for accuracy. Some children's products regulated by the Commission and that are required by the CPSA to be third party tested are not regulated primarily under the CPSA. For example, some toys are regulated under the Federal Hazardous Substances Act, 15 U.S.C. 1261–1278. To be consistent with the inspection provision at proposed § 1112.27, the references to “product” must be broad enough to include more than just products subject to CPSA safety standards.
Normally, we would use the plain language “must” rather than “shall” when describing mandatory requirements in a rule. However, because we are amending one paragraph of a section that was drafted using “shall,” we will continue to use “shall” in this paragraph, to avoid any potential confusion that might arise from the appearance of inconsistent terminology within § 1118.2.
The Regulatory Flexibility Act (RFA), 5 U.S.C. chapter 6, requires the agency to evaluate the economic impact of this proposed rule on small entities. The RFA defines “small entities” to include small businesses, small organizations, and small governmental jurisdictions. Section 603 of the RFA requires the CPSC to prepare an initial regulatory flexibility analysis and make it available to the public for comment when the notice of proposed rulemaking is published. The initial regulatory flexibility analysis must describe the impact of the proposed rule on small entities and identify any alternatives that may reduce the impact. Specifically, the initial regulatory flexibility analysis must contain:
1. [A] description of the reasons why action by the agency is being considered;
2. [A] succinct statement of the objectives of, and legal basis for, the proposed rule;
3. [A] description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;
4. [A] description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities subject to the requirements and the type of professional skills necessary for the preparation of reports or records;
5. [A]n identification, to the extent possible, of all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule.
Additionally, the initial regulatory flexibility analysis must contain a description of any significant alternatives to the proposed rule that accomplish the stated objectives of the proposed rule while minimizing the economic impact on small entities.
Section 14(a)(2)of the CPSA requires that a manufacturer or private labeler of a children's product subject to a children's product safety rule submit samples of the product to a CPSC-accepted third party conformity assessment body for testing for compliance with the rule. Based on the testing, the manufacturer or private labeler must issue a certificate that certifies that the children's product complies with the applicable children's product safety rule(s). This proposed rule would codify, inter alia, the requirements and process by which a laboratory may apply for CPSC acceptance of its accreditation, the process for a laboratory to voluntarily discontinue providing testing to support a children's product certification, and the procedures by which the CPSC may suspend or withdraw its acceptance of the accreditation of a laboratory.
The primary objective of the proposed rule is to codify the requirements pertaining to laboratories, including the requirements and processes related to obtaining CPSC acceptance of their accreditation. Codifying the requirements related to obtaining CPSC acceptance of accreditation will make it easier for interested parties to locate the requirements because, from September 2008 through August 2011, the CPSC has issued 19 notices of requirements pertaining to specific regulations or test methods. This rule would compile the requirements in a single location.
The proposed rule also would establish the grounds for and procedures by which the CPSC could suspend or withdraw its acceptance of the accreditation of a laboratory. Additionally, where the required test method(s) is not specified in a children's product safety rule, provisions in the proposed rule (§ 1112.15, § 1112.17) would formally establish the test method(s) that laboratories must use to assess conformity with the particular rule.
The legal bases of the rule are found in section 14 of the CPSA, as amended by section 102 of the CPSIA, and section 3 of the CPSIA. Section 3 of the CPSIA grants the CPSC the authority to issue regulations to implement the CPSIA and the amendments made by the CPSIA. Section 14(a)(3) of the CPSA provides the authority for the CPSC to establish the accreditation requirements for laboratories. Section 14(e) of the CPSA provides the authority for the CPSC to suspend and/or withdraw the acceptance of the accreditation of a laboratory.
This proposed rule would apply to laboratories that intend to offer their testing services to manufacturers and private labelers of children's products for purposes of supporting a certification that the products conform to applicable children's product safety rules. The proposed rule would not impose any requirements on laboratories that do not intend to provide these services.
Although there are 5,041 firms classified as “testing laboratories” (NAICS code 54138) in the United States,
The proposed rule would establish the requirements for CPSC acceptance of the accreditation of a laboratory. The rule would apply only to laboratories that intend to provide third party testing of children's products in support of the certification required by section 14(a)(2) of the CPSA. The proposed rule would not impose any requirements on laboratories that do not intend to provide these services.
The proposed rule would require that, as a condition of CPSC acceptance of its accreditation, the laboratory must be accredited to the Standard ISO/IEC 17025:2005, “General Requirements for the Competence of Testing and Calibration Laboratories.” The accreditation must be by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation—Mutual Recognition Arrangement (ILAC–MRA). The scope of the accreditation must list the CPSC safety rule(s) and/or test method(s) for which acceptance is sought. This aspect of the proposed rule would simply codify the existing conditions for CPSC acceptance of accreditation, which have been stated in every notice of requirements published by the CPSC.
The proposed rule would require that laboratories provide the CPSC with their accreditation certificate and scope documents. These records are normally generated during the accreditation process and can be provided to the CPSC electronically. The application form for the CPSC acceptance of accreditation is CPSC Form 223. This is an electronic application form and all of the information that is required to be supplied on the form should be readily available to the laboratory. The professional skills required to complete CPSC Form 223 and the related documents are skills that a competent, accredited laboratory would be expected to have.
The proposed rule also would require firewalled laboratories to submit additional materials. The additional documents would provide evidence that, despite the fact that the laboratory is managed, owned, or controlled by a manufacturer or private labeler, the testing process is independent of that relationship. The acceptance of a firewalled laboratory's accreditation would occur only by Commission order after it has made certain findings. The additional documents required to support the findings include:
• The laboratory's policies and procedures that explain:
○ How the third party conformity assessment body will protect its test results from undue influence by the manufacturer, private labeler, or other interested party;
○ That the CPSC will be notified immediately of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the third party conformity assessment body's test results; and
○ That allegations of undue influence may be reported confidentially to the CPSC;
• Training documents, including a description of the training program content, showing how employees are trained annually on the policies and procedures described above.
• Training records listing the staff members who received the required training. The records must include training dates, location, and the name and title of the individual providing the training;
• An organizational chart(s) of the laboratory that includes the names of all laboratory personnel, both temporary and permanent, and their reporting relationship within the laboratory;
• An organizational chart(s) of the broader organization that identifies the reporting relationships of the laboratory within the broader organization (using both position titles and staff names); and
• A list of all laboratory personnel with reporting relationships outside of the laboratory. The list must identify the name and title of the relevant laboratory employee(s) and the names, titles, and employer(s) of all individuals outside of the laboratory to whom they report.
The proposed rule also would establish requirements for CPSC acceptance of the accreditation of laboratories that are owned or controlled by a government. The additional requirements for this type of laboratory include a description, which may be in the form of a diagram, that illustrates relationships with other entities, such as government agencies and joint venture partners, and answering questions that will be used by the CPSC to determine whether it meets the statutory requirements for acceptance of its accreditation. The laboratory must also provide a copy of an executed memorandum addressed to all staff members and displayed for staff reference stating the laboratory policy to reject undue influence over its testing results by any outside person or entity. The memorandum must add that employees are required to report immediately to their supervisor or other designated official about any attempts to gain undue influence and that the laboratory will not tolerate violations of its undue influence policy. Further, a senior officer of the laboratory must make attestations regarding the continuing accuracy of the conditions and policies of the laboratory.
Laboratories that are owned by foreign governments do not meet the definition of a “small entity” under the Regulatory Flexibility Act. To date, we have accepted one application from a domestic governmental laboratory.
There are no fees payable to the CPSC associated with applying for CPSC acceptance of accreditation. The costs of obtaining ISO/IEC 17025:2005 accreditation by a signatory to the ILAC–MRA typically include a one-time application fee, an annual fee for each field in which the laboratory is accredited, and an assessment fee. These charges will vary somewhat among accreditation bodies; but representative charges, based on the published fee schedule of one accreditation body, are $800 for the initial application fee, $1,300 per field for the annual fee, and $135 per hour per assessor. A representative of an accreditation body stated that assessments can take from 1 to 5 days, with 2.5 days being about average.
Based on the above discussion, a laboratory seeking accreditation in one field of testing can expect to pay around $4,800 in fees. The cost could be higher if the assessment takes more than 2.5 days. If the laboratory is seeking accreditation in more than one field, such as chemical and mechanical
If a laboratory is already accredited to ISO/IEC 17025:2005 by an accreditation body that is a signatory to the ILAC–MRA, and the laboratory is simply seeking to expand its scope of accreditation to include specific CPSC tests, the cost to the laboratory will be substantially less. In some cases, if the laboratory's scope already includes closely related tests, the accreditation body might be willing to add the CPSC tests to the scope without additional charges. In other cases, there could be some administrative or assessment charges, but these would be less than would be required for a full initial assessment.
For most product safety rules, the required test methods were specified in the regulation that established the safety rule. However, in the case of the requirements limiting the lead content of children's products, the test methods have been specified in the notices of requirements for accreditation, because the limits on acceptable lead were established in law via the CPSIA. The proposed rule would expand the list of acceptable test methods for measuring lead content to include the use of XRF for measuring the lead content of glass materials, crystals, and certain metals. Because XRF can be significantly less expensive than other approved test methods, such as inductively coupled plasma or atomic absorption spectrometry, this provision could lower the laboratories testing costs. Some or all of the cost reductions could be passed onto the consumer product manufacturers in the form of lower testing prices.
ISO/IEC 17025:2005 has requirements for the periodic reassessment of accredited laboratories. We are addressing these requirements in the separate but related rulemaking on periodic audits.
The proposed rule would require that laboratories maintain certain records associated with the testing conducted for purposes of section 14(a)(2) of the CPSA for at least five years. The retention requirement would apply to all test reports and technical records, records related to subcontracted tests, and customer reports, if different from the test record, if related to tests conducted for purposes of section 14(a)(2) of the CPSA. Additionally, all internal documents describing testing protocols and procedures (such as instructions, standards, manuals, guides, and reference data) that have applied to a test conducted for purposes of section 14(a)(2)of the CPSA must be retained for a period of at least five years from the date such test was conducted. Upon a request by the CPSC, the laboratory must make the records available to the CPSC within 48 hours. If the records are not in English, the proposed rule would require that the laboratory provide the CPSC with copies of the non-English record available to the CPSC within 48 hours, and the laboratory must make an English translation available within 30 days of a request to do so. All records must be legible, but they can be in electronic format or hardcopy, so long as they are readily retrievable.
The proposed rule also would establish the grounds and procedures that the CPSC would use to take adverse actions against a laboratory. Adverse actions would include: Denying the acceptance of the laboratory's accreditation, suspending the acceptance of the laboratory's accreditation for a period of time, or withdrawing the acceptance of the laboratory's accreditation on a temporary or permanent basis. Grounds for these adverse actions would include: A failure to comply with CPSC requirements, failure to cooperate with the CPSC during an investigation, and allowing a manufacturer or other party to exert undue influence on the testing process. Among other things, the rule would establish the requirements for the notices that the CPSC must provide a laboratory before taking an adverse action, the time limits for responses by the laboratory to the notice, and the laboratory's appeal rights.
During an investigation of an allegation, some costs would be incurred by the laboratory for things such as making employees available for interviews with CPSC investigators, providing the CPSC with documents or records requested by the investigators, and allowing CPSC investigators access to its facilities. The cost incurred would depend upon the scope of the investigation. If the CPSC proposed an adverse action against the laboratory, the laboratory could incur some cost in preparing a reply to the notice, if it chooses to reply. The number of investigations of laboratories that the CPSC will open is not known.
Laboratories that intend to provide third party testing services for purposes of section 14(a)(2) of the CPSA will incur some costs to obtain CPSC acceptance of their accreditation. The costs would be low for laboratories that are already accredited to ISO/IEC 17025:2005 by a body that is an ILAC–MRA signatory. If the laboratory is not already accredited to ISO/IEC 17025:2005 by an ILAC–MRA signatory, it can expect to incur fees of around $4,800. The fees could be higher if the laboratory sought accreditation in more than one field of testing or the assessment took more than 2.5 days. If the CPSC opened an investigation of the laboratory, the laboratory would likely incur some costs in connection with the investigation.
As noted, the requirements in this proposed rule would apply only to those laboratories that intend to provide third party testing services for purposes of section 14(a)(2) of the CPSA. The only laboratories that are expected to provide those services are those that expect to receive sufficient revenue from providing the testing to justify accepting the requirements as a business decision. Laboratories that do not expect to receive sufficient revenue from these services to justify accepting these requirements would not be expected to pursue accreditation for this purpose. Therefore, one would not expect the requirements to have a significant adverse impact on a substantial number of laboratories.
We have not identified any federal rules that duplicate, overlap, or conflict with the proposed rule.
The RFA directs agencies to describe significant alternatives to the proposed rule that would minimize the significant economic impacts on small entities, while accomplishing the agency's objectives. We considered two alternatives to provisions in the proposed rule. One alternative was for the CPSC to accept the accreditation of laboratories that had been accredited by bodies other than just those that are signatories to the ILAC–MRA. The second alternative involved accepting XRF test methods for determining lead
Comments were received in response to several notices of requirements that the CPSC should accept the accreditation of laboratories that had been accredited by organizations or accreditation bodies that are not signatories to the ILAC–MRA. Some of the organizations not affiliated with the ILAC–MRA, that were suggested by commenters, are the American Industrial Hygiene Association (AIHA), the National Lead Laboratory Accreditation Program (NLLAP), the National Environmental Laboratory Accreditation Conference (NELAC), and accreditation bodies that are members of the National Cooperation for Laboratory Accreditation (NACLA).
If we accepted the accreditation of laboratories that were accredited by these other organizations, it would reduce the cost of obtaining CPSC acceptance for those laboratories that are accredited by the non- ILAC–MRA bodies. Under the proposed rule, to gain CPSC acceptance of their accreditation, these laboratories would have to seek additional accreditation by a body that is a signatory to the ILAC–MRA. It is not known how many laboratories that are accredited by nonsignatories to the ILAC–MRA intend to offer conformity assessment testing services to manufacturers or private labelers of children's products for purposes of section 14(a)(2) of the CPSA.
We recognize that there are other laboratory accreditation organizations or accreditation body cooperations, and we realize that some of these organizations may adhere to similar rules and standards (but with some distinctions) as those established in the ILAC–MRA signatory program. However, CPSC designations to such organizations would not meet all of the objectives we had when we established, as a baseline accreditation requirement, accreditation by a body that was a signatory to the ILAC–MRA. Moreover, we sought to designate a program that operated and was accepted on a broad, multinational level and that could immediately bring on board a large number of accreditation bodies and avoid designating accreditation programs or entities that were recognized only in specific regions, nations, or localities. In the absence of establishing conditions for accreditation bodies, any person or entity can claim to be able to accredit laboratories to ISO/IEC 17025:2005, regardless of their qualifications to do so. It should also be noted that the AIHA, one of the suggested alternative accreditation bodies, is now a signatory to the ILAC–MRA.
The CPSC has received a number of requests to allow more extensive use of XRF analysis in testing related to lead because XRF analysis is significantly less expensive than the other test methods for lead content.
Based on its continuing research of testing methodologies, the Commission has approved the use of certain XRF methods for determining the lead content of homogenous polymer components and paints, and the proposed rule would allow, in addition, the use of certain XRF methods for determining the lead content of glass materials, crystals, and certain metals. However, for other materials, CPSC staff has not determined that XRF is as effective, precise, and reliable as the approved methods. Therefore, the proposed rule does not expand the approved use of XRF to cover all materials or substances. We continue to evaluate improvements in technology and methods on an ongoing basis.
The RFA directs agencies to consider some specific alternatives to a proposed rule including:
1. The establishment of different compliance or reporting requirements for small entities or timetables that take into account the resources available to small entities;
2. Clarification, consolidation, or simplification of compliance and reporting requirements for small entities;
3. Use of performance rather than design standards; and
4. Exemption for certain or all small entities from coverage of the rule, in whole or part.
Other than the alternatives specifically discussed above (regarding accreditation by bodies that are not signatories to the ILAC–MRA and alternative testing methods for lead content), we did not identify any significant alternatives that also would meet the agency's objectives and fulfill its obligations under the CPSA, as amended by the CPSIA. However, we welcome comments suggesting other alternatives that could reduce the burden on small entities, while fulfilling the agency's objectives.
This proposed rule contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520) (PRA). We describe the provisions in this section of the document with an estimate of the annual reporting burden. Our estimate includes the time for completing the application to become a CPSC-accepted laboratory (CPSC Form 223), including uploading the accompanying documents that would be required under this rule; for complying with the proposed recordkeeping requirements; for submitting the information that would be necessary to discontinue voluntarily as a CPSC-accepted laboratory; and for supplying the accompanying documents that would be required at audit.
In particular, we invite comments on the following: (1) Whether the collection of information is necessary for the proper performance of the CPSC's functions, including whether the information will have practical utility; (2) the accuracy of the CPSC's estimate of the burden of the proposed collection of information, including the validity of the method and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to reduce 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.
Description: The proposed rule would establish the requirements pertaining to the laboratories that are authorized to test children's products in support of the certification required by section 14(a)(2) of the CPSA, as amended by section 102(a) of the CPSIA. The proposed rule would establish the general requirements concerning third party conformity assessment bodies, such as the requirements and procedures for CPSC acceptance of the accreditation of a laboratory, and it also would address adverse actions against CPSC-accepted laboratories. In addition, the proposed rule would amend the audit requirements for laboratories.
Description of Respondents: Testing laboratories.
We estimate the burden of this collection of information as follows: There are no capital costs or operating and maintenance costs associated with this collection of information.
Our estimates are based on the following: A laboratory desiring to have its accreditation accepted by the CPSC first must submit an application, CPSC Form 223. CPSC Form 223 is already an OMB-approved collection of information, control number 3041–0143,
The proposed rule, if finalized as written, would necessitate changes to CPSC Form 223. For purposes of this PRA estimate, we assume the rule will be finalized as written. To estimate the paperwork burden associated with the application, we are beginning with the 1-hour time estimate already approved under control number 3041–0143, and adding to the one hour estimate, the time we estimate it will take or an applicant laboratory to comply with the application requirements that would be newly imposed as a result of this rule.
The proposed rule would require applicant laboratories to attest to a variety of facts concerning their ownership and legal relationships, to determine whether the laboratory should be considered an applicant for firewalled or governmental status. Each characteristic contained in § 1112.11(b) that indicates a firewalled laboratory, would be reflected in a statement to which an applicant laboratory would need to attest with a “yes” or “no” answer. Similarly, each characteristic indicating a governmental laboratory, as contained in § 1112.11(c), would be reflected in a statement to which an applicant laboratory would need to attest with a “yes” or “no” answer. We surveyed less than nine CPSC-accepted laboratories, and we asked them how long it took them to complete the attestation portion of the current CPSC Form 223. The average of the estimates provided was three minutes. This proposed rule would expand significantly the list of characteristics indicating “governmental” or “firewalled” status, as compared to the current CPSC Form 223. We estimate that the additional attestation requirements will take applicants five times longer than the current attestation section on CPSC Form 223. Accordingly, we estimate that it would take applicants an additional 15 minutes to complete CPSC Form 223. Thus, the total time estimated to comply with proposed § 1112.13(a) is 75 minutes per respondent. Based on our experience with the laboratory program to date, we estimate that there will be a total of 450 laboratories whose accreditations are accepted by the CPSC after an initial period of about four years. To predict the annual burden, we divided the number of laboratories by the initial period, to arrive at an estimated 113 laboratories per year with the 75-minute burden.
Proposed § 1112.13(a)(1) would require CPSC-accepted laboratories to submit a new CPSC Form 223 whenever information previously submitted on the form changes. Based on our experience operating the laboratory program, to date, only about 1 percent of laboratories per year need to update their information, and the information changes, thus far, have been limited to items such as a contact name. A laboratory will not need to fill out an entirely new CPSC Form 223 to submit new information; the laboratory can access its existing CPSC Form 223 via the laboratory application program on the CPSC Web site and change only those elements that are in need of updating. We estimate that it will take a laboratory that needs to update its information 15 minutes to do so.
The proposed rule, at § 1112.13(b)(2), would require applicant firewalled laboratories to submit six documents concerning their relationship to the manufacturer in addition to their policies on undue influence. First, an applicant firewalled laboratory must submit their established policies and procedures addressing undue influence; that the CPSC will be notified immediately if there is an attempt at undue influence; and that allegations of undue influence may be reported confidentially to the CPSC. Because applicant laboratories must be accredited to ISO/IEC 17025:2005, we know that the laboratories already have certain policies and procedures in place concerning undue influence. However, those policies and procedures will not address reporting attempts at undue influence to the CPSC and that such reports to the CPSC may be confidential. Therefore, we estimate that a laboratory will need to amend its policies and procedures to include these CPSC-related topics. Based on our experience with firewalled laboratory applications, to date, we estimate that it will take applicants two hours to develop these additional policies. The experience of CPSC staff working on firewalled laboratory applications indicates that often applicants choose to submit draft amended policies and procedures for feedback prior to finalizing the documents. To err on the side of overestimating, rather than underestimating the burden, we will assume that all firewalled applicants will submit draft documents, and we estimate that applicants will spend an additional hour revising and finalizing those documents after CPSC staff's initial review. Therefore, we estimate that laboratories will spend 3 hours creating these policies and procedures.
In terms of the time it will take an applicant to upload the policies and procedures once they exist, we estimate eight minutes. This estimate is based partly on the results of a survey of fewer than nine laboratories that we asked to estimate the amount of time it took to upload the baseline documents (accreditation certificate and statement of scope). On average, it took an applicant four minutes to locate and upload the two documents. Again, based on our experience with firewalled laboratory applicants, to date, we estimate that the required policies and procedures will be reflected in two documents (
The second submission that the proposed rule would require of firewalled applicants is training documents showing how employees are trained annually on the policies and procedures just described (
The third submission the proposed rule would require firewalled laboratory applicants to furnish training records showing that laboratory staff were trained on the policies and procedures described above (
In terms of the time it takes to locate and upload the training records, we assume that some laboratories will maintain the requisite information in more than two documents. Based on the survey results described previously, which indicated that it took an average of four minutes for respondents to locate and upload two documents, we estimate that the burden associated with locating and uploading the training documents requirement is four minutes.
The fourth submission required of firewalled laboratory applicants is an organizational chart of the laboratory. We assume that a laboratory will already have such a document, so the time it would take to comply with this requirement merely would be the time it would take to locate and upload the chart. Based on the earlier estimate of four minutes for two documents and because this is only one document, we estimate the burden associated with this requirement to be two minutes.
Similarly, the fifth submission required of firewalled laboratory applicants is an organizational chart of the broader organization, indicating how the laboratory fits into the manufacturing company structure. Again, we assume that the laboratory will already have access to such a document that exists in the normal course of the manufacturer's and laboratory's business. Therefore, the only burden associated with this proposed requirement would be the time it takes for the laboratory to locate and upload the chart. Based on the same reasoning applied for the last organizational chart, we estimate the burden associated with submitting the broader organization's chart to be two minutes.
The sixth submission that would be required of firewalled laboratory applicants is a list of laboratory staff that have reporting relationships outside the laboratory. We assume, for PRA purposes, that this document has not been created in the normal course of the laboratory's business. We do not anticipate that there will be many laboratory employees with outside reporting relationships. Thus, we estimate that this will be a short list. Based on similar lists we have seen from prior firewalled laboratory applicants, we estimate that it will take a laboratory one hour to create this list. Using the same reasoning as applied already, we estimate that it will take a laboratory two minutes to locate and upload this document.
Therefore, based on the above analysis, we estimate that it will take a firewalled laboratory applicant about 8.4 hours to comply with the proposed requirements in § 1112.13(b)(2) (188 min. for policies and procedures + 188 min. for training documents + 64 min. for training records + 2 min. for laboratory organizational chart + 2 min. for broader organizational chart + 62 min. for the list of staff with outside reporting relationship = 506 min.; 506 min./60 min. in each hour = 8.4 hours).
Proposed § 1112.13(c)(2) addresses the four additional application requirements for governmental laboratories. The first requirement would be that a governmental laboratory applicant must submit a description, which may be in the form of a diagram, which illustrates the laboratory's relationships with other entities, such as government agencies and joint ventures. Based on the response from a governmental laboratory whose accreditation is accepted by the CPSC, the time required for this is estimated at one hour.
Second, a governmental laboratory applicant would be required to respond to a questionnaire concerning the criteria for governmental laboratories; the criteria are statutory in origin, but they appear at § 1112.13(c)(1) of the proposed rule. Based on our experience with governmental laboratory applications, to date, we estimate that it takes each applicant one hour to respond to this questionnaire.
Third, proposed § 1112.13(c)(2)(iii) would require a governmental laboratory applicant to submit a copy of an executed memorandum addressing undue influence. Our experience with governmental laboratory applicants suggests that it will take 0.5 hours to complete the memorandum. Therefore, we tentatively assign an estimate of 0.5 hours to complete this task.
Fourth, a senior officer of the governmental laboratory applicant would be required to attest to facts and policies concerning the applicant. Our experience with governmental laboratory applicants suggests that it will take 0.5 hours to complete the attestation. Therefore, we tentatively assign an estimate of 0.5 hours to complete this task.
Therefore, the total time we estimate that it will take for a governmental laboratory applicant to comply with the proposed requirements in § 1112.13(c)(2), is 3 hours (1 hour for the laboratory relationships description + 1 hour for responding to the questionnaire + 0.5 hours to complete the memorandum addressing undue influence + 0.5 hours for the attestation of facts and policies = 3 hours).
Proposed § 1112.25(a) addresses recordkeeping requirements. We would require that laboratories maintain all test reports and technical records related to tests conducted for purposes of section 14 of the CPSA for at least five years. It is our understanding that laboratories maintain these records in the normal course of their business. However, we would also require that when a test conducted for purposes of section 14 of the CPSA is subcontracted, the prime contractor's report must clearly identify which test(s) was performed by a CPSC-accepted laboratory acting as a subcontractor, and the test from the subcontractor must be appended to the prime contractor's report. We assume, for PRA purposes, that those requirements may not be satisfied in the normal course of a laboratory's business. Based upon responses received from laboratories we surveyed, we estimate that on average, a laboratory conducts 10,188 tests for purposes of section 14 of the CPSA annually. Based on our experience with the laboratory program, to date, we estimate that 5 percent of laboratories will subcontract tests to other CPSC-accepted laboratories. It is difficult to estimate exactly how many tests will be subcontracted, but for current purposes, we will estimate that of the laboratories that subcontract, they will subcontract 25 percent of their tests. To comply with the proposed recordkeeping requirements related to subcontracted tests, we estimate that a laboratory will spend five minutes locating and amending a test report to indicate clearly that one of the test(s) supporting the test report has been subcontracted. We estimate that it will take 2 minutes for the laboratory to append the subcontracted report to the main report (either electronically append, or append hard copies of the reports [
Proposed § 1112.25(a)(3) would require that if a laboratory, after conducting a test, chooses to send a report to the customer different from the laboratory test report, the laboratory must maintain the report sent to the customer for five years. Any report that falls within this requirement would be a report that the laboratory has created in the normal course of its business, and thus, is not part of the burden associated with this proposed rule.
We also would require laboratories to maintain any and all internal documents describing testing protocols and procedures, such as instructions and manuals, for a period of five years. Again, these documents would exist as part of the laboratory's normal business activity so that it would not be part of the burden imposed by this proposed rule.
Proposed § 1112.29(a) would explain that a CPSC-accepted laboratory may voluntarily discontinue its participation with the CPSC at any time, by submitting a written notice to the CPSC, and the proposed rule would detail the information that must be included in the notice. In the three years that we have been operating the laboratory program, six laboratories have voluntarily discontinued their participation with us. To err on the side of overestimating, rather than inaccurately underestimating the burden, we will assume that six laboratories will voluntarily discontinue their participation each year. We propose to require five elements for the voluntary discontinuance notice, including the name of, and contact information for, the laboratory, scope of the discontinuance, and the beginning date of the discontinuance. Based on our experience with the laboratory program, to date, we estimate that it would take a laboratory one hour to prepare and send this notice of discontinuance. Because we estimate that six laboratories per year will submit such a notice, the total annual burden associated with § 1112.29(a) is estimated to be six hours per year.
The last section of this proposed rule that imposes paperwork burdens is a section related to audits. The final audit rule appears elsewhere in this issue of the
With regard to the burden associated with proposed § 1112.13(b)(2), we estimated that it would take a firewalled laboratory applicant 8.4 hours to submit the accompanying documentation required with their initial application for CPSC acceptance. Seven hours of that time was allotted for laboratories to create documents specifically required for testing children's products for purposes of section 14 of the CPSA. The laboratories will not need to create those documents again at audit, however. Therefore, instead of the three hours we estimated that firewalled laboratories would spend developing the policies and procedures that would be required under § 1112.13(b)(2)(i), we estimate, for audit purposes, that laboratories will spend one hour reviewing and updating those policies and procedures. Similarly, instead of the three hours we projected that laboratories would need for developing the training documents under § 1112.13(b)(2)(ii), we estimate that laboratories will spend one hour reviewing and updating those documents at audit. Instead of the one hour we estimated laboratories would spend creating the list of employees with outside relationships that would be required under § 1112.13(b)(2)(vi), we estimate laboratories will spend 20 minutes reviewing and updating that list at audit. Accordingly, instead of the 506 minutes we estimated that a firewalled laboratory would spend in support of submitting the accompanying documentation at the time of their initial application for CPSC acceptance, we estimate that a laboratory will spend 226 minutes in support of submitting the accompanying documentation at audit (506 min. − 120 min. for policies and procedures − 120 min. for training documents − 40 min. for list of employees and outside interests = 226 min.). Based on the number of firewalled laboratories that have already been accepted by the CPSC and our experience with the rate of new successful applications, we predict that the total number of firewalled laboratories will be 35. Half of those, or 18, will be audited annually. If half of the firewalled laboratories spend 226 minutes to comply with this aspect of audit annually, that is an annual paperwork burden of 4,068 minutes, or 68 hours (18 laboratories × 226 minutes = 4,068 minutes annually; 4,068 minutes/60 minutes per hour = approximately 68 hours).
With regard to the burden associated with proposed § 1112.13(c)(2), we estimated that it would take a governmental laboratory applicant three hours to submit the accompanying documentation required when they initially apply for CPSC acceptance. We estimated that one hour would be required to develop a description, which may be in the form of a diagram, which illustrates the laboratory's relationships with other entities, such as government agencies and joint ventures. The laboratories will not need to create the diagrams or documents again at audit, however. Therefore, instead of the one hour we estimated that governmental laboratories would spend developing a description or diagram that would be required under § 1112.13(c)(2), we estimate, for audit purposes, that laboratories will spend 10 minutes reviewing and updating the description or diagram. Similarly, instead of the one hour estimated for responding to the questionnaire that would be required under § 1112.13(c)(1), we estimate laboratories that will spend 20 minutes reviewing the document at audit. Instead of the 30 minutes we estimated that laboratories would spend creating a memorandum addressing undue influence that would be required under § 1112.13(c)(2)(iii), we estimate laboratories will spend 20 minutes reviewing and updating that memorandum at audit. A CPSC-accepted governmental laboratory stated that it took 30 minutes to complete the attestation at audit. Instead of the 30 minutes we estimated that a senior official would spend developing an attestation to facts and policies concerning the applicant, as required under § 1112.13(c)(2)(iv), we estimate
Therefore, we estimate that the total paperwork burden associated with our proposed amendment to the definition of audit will be about 105 hours.
Finally, we estimate that the total paperwork burden associated with this rule will be 7,202 hours. Table 2 summarizes the estimates and the total paperwork burden associated with this rule.
In compliance with the PRA, we have submitted the information collection requirements of this rule to OMB for review. Interested persons are requested to fax comments regarding information collection by June 25, 2012, to the Office of Information and Regulatory Affairs, OMB (see
The proposed rule falls within the scope of the Commission's environmental review regulations at 16 CFR 1021.5(c)(1), which provide a categorical exclusion from any requirement for the agency to prepare an environmental assessment or environmental impact statement for product certification rules.
Executive Order 12988 (February 5, 1996), requires agencies to state in clear language the preemptive effect, if any, of new regulations. The proposed regulation would be issued under authority of the CPSA and CPSIA. The CPSA provision on preemption appears at section 26 of the CPSA. The CPSIA provision on preemption appears at section 231 of the CPSIA. The
The Commission proposes that any final rule based on this proposed rule become effective 90 days after its date of publication in the
The requirements for CPSC acceptance of the accreditation of a third party conformity assessment body under the final rule may differ from the requirements currently in effect. In particular, CPSC Form 223 may change, as may the accompanying documents required with an application. The Commission proposes to begin applying any new application requirements, including requirements for accompanying documents, the first time after the publication of the final rule that a laboratory submits a CPSC Form 223. For CPSC-accepted laboratories, their first submission of CPSC Form 223 after the 1112 final rule publishes would likely occur at audit.
Administrative practice and procedure, Audit, Consumer protection, Reporting and recordkeeping requirements, Third party conformity assessment body.
Administrative practice and procedure, Consumer protection, Investigations.
For the reasons discussed in the preamble, the Consumer Product Safety Commission proposes to amend 16 CFR part 1112, as added elsewhere in this issue of the
1. The authority citation for part 1112 continues to read as follows:
Pub. L. 110–314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.
2. Amend part 1112, as added elsewhere in this issue of the
This part defines the term “third party conformity assessment body” and describes the types of third party conformity assessment bodies that are accepted by the CPSC to test children's products under section 14 of the CPSA. It describes the requirements and procedures for becoming a CPSC-accepted third party conformity assessment body; the audit requirement applicable to third party conformity assessment bodies; how a third party conformity assessment body may voluntarily discontinue participation as a CPSC-accepted third party conformity assessment body; the grounds and procedures for withdrawal or suspension of CPSC acceptance of the accreditation of a third party conformity assessment body; and how an individual may submit information alleging grounds for adverse action.
3. Amend § 1112.3, as added elsewhere in this issue of the
a. Revising the definitions of “Audit” and “CPSC,”; and
c. Adding definitions for “Accept accreditation,” “Commission,” “CPSA,” “Notice of requirements,” “Scope,” “Suspend,” “Third party conformity assessment body,” “Undue Influence,” and “Withdraw”
The additions read as follows:.
(1) An examination by an accreditation body to determine whether the third party conformity assessment body meets or continues to meet the conditions for accreditation (a process known more commonly as a “reassessment”); and
(2) The resubmission of the “Consumer Product Conformity Assessment Body Acceptance Registration Form” (CPSC Form 223) and accompanying documentation by the third party conformity assessment body and the Consumer Product Safety Commission's (“CPSC's”) examination of the resubmitted CPSC Form 223 and accompanying documentation. Accompanying documentation includes the baseline documents required of all applicants in § 1112.13(a), the documents required of firewalled applicants in § 1112.13(b)(2), and/or the documents required of governmental applicants in § 1112.13(c)(2).
4. Amend part 1112, as added elsewhere in this issue of the
(a)
(b)
(1) It is owned, managed, or controlled by a manufacturer or private labeler of a children's product;
(i) For purposes of determining whether a third party conformity assessment body is firewalled, “manufacturer” includes a trade association.
(ii) A manufacturer or private labeler is considered to own, manage, or control a third party conformity assessment body if any one of the following characteristics applies:
(A) The manufacturer or private labeler of the children's product holds a 10 percent or greater ownership interest, whether direct or indirect, in the third party conformity assessment body. Indirect ownership interest is calculated by successive multiplication of the ownership percentages for each link in the ownership chain;
(B) The third party conformity assessment body and a manufacturer or private labeler of the children's product are owned by a common “parent” entity;
(C) A manufacturer or private labeler of the children's product has the ability to appoint a majority of the third party conformity assessment body's senior internal governing body (such as, but not limited to, a board of directors), the ability to appoint the presiding official (such as, but not limited to, the chair or president) of the third party conformity assessment body's senior internal governing body, and/or the ability to hire, dismiss, or set the compensation level for third party conformity assessment body personnel; or
(D) The third party conformity assessment body is under a contract to a manufacturer or private labeler of the children's product that explicitly limits the services the third party conformity assessment body may perform for other customers and/or explicitly limits which or how many other entities may also be customers of the third party conformity assessment body.
(2) The children's product is subject to a CPSC children's product safety rule that the third party conformity assessment body requests CPSC acceptance to test; and
(3) The third party conformity assessment body intends to test such children's product made by the owning, managing, or controlling entity for the purpose of supporting a Children's Product Certificate.
(c)
(1) A governmental entity holds a 1 percent or greater ownership interest, whether direct or indirect, in the third party conformity assessment body. Indirect ownership interest is calculated by successive multiplication of the ownership percentages for each link in the ownership chain;
(2) A governmental entity provides any direct financial investment or funding (other than fee for work);
(3) A governmental entity has the ability to appoint a majority of the third party conformity assessment body's senior internal governing body (such as, but not limited to, a board of directors); the ability to appoint the presiding official of the third party conformity assessment body's senior internal governing body (such as, but not limited to, chair or president); and/or the ability to hire, dismiss, or set the compensation level for third party conformity assessment body personnel;
(4) Third party conformity assessment body management or technical personnel include any government employees;
(5) The third party conformity assessment body has a subordinate position to a governmental entity in its external organizational structure (not including its relationship as a regulated entity to a government regulator); or
(6) Apart from its role as regulator, the government can determine, establish, alter, or otherwise affect:
(i) The third party conformity assessment body's testing outcomes;
(ii) The third party conformity assessment body's budget or financial decisions;
(iii) Whether the third party conformity assessment body may accept particular offers of work; or
(iv) The third party conformity assessment body's organizational structure or continued existence.
(a)
(1) Submit a completed Consumer Product Conformity Assessment Body Registration Form (“CPSC Form 223” or “Application”). In submitting a CPSC Form 223, the third party conformity assessment body must attest to facts and characteristics about its business that will determine whether the third party conformity assessment body is independent, firewalled, or governmental. The third party conformity assessment body also must attest that it has read, understood, and agrees to the regulations in this part. The third party conformity assessment body must update its CPSC Form 223 whenever any information previously supplied on the form changes.
(2) Submit the following documentation.
(i)
(B) The accreditation must be by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation-Mutual Recognition Arrangement (ILAC–MRA).
(ii)
(b)
(1) A third party conformity assessment body may be accepted as a firewalled third party conformity assessment body if the Commission, by order, makes the findings described in § 1112.17(b).
(2) For the Commission to evaluate whether an applicant firewalled third party conformity assessment body satisfies the criteria listed in § 1112.17(b), and in addition to the baseline accreditation requirements in paragraph (a) of this section, a firewalled third party conformity assessment body applying for acceptance of its accreditation must submit copies of:
(i) The third party conformity assessment body's established policies and procedures that explain:
(A) How the third party conformity assessment body will protect its test results from undue influence by the manufacturer, private labeler, or other interested party;
(B) That the CPSC will be notified immediately of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the third party conformity assessment body's test results; and
(C) That allegations of undue influence may be reported confidentially to the CPSC;
(ii) Training documents, including a description of the training program content, showing how employees are trained annually on the policies and procedures described in paragraph (b)(2)(i) of this section;
(iii) Training records, including a list and corresponding signatures, of the staff members who received the training identified in paragraph (b)(2)(ii) of this section. The records must include training dates, location, and the name and title of the individual providing the training;
(iv) An organizational chart(s) of the third party conformity assessment body that includes the names of all third party conformity assessment body personnel, both temporary and permanent, and their reporting relationship within the third party conformity assessment body;
(v) An organizational chart(s) of the broader organization that identifies the reporting relationships of the third party conformity assessment body within the broader organization (using both position titles and staff names); and
(vi) A list of all third party conformity assessment body personnel with reporting relationships outside of the third party conformity assessment body. The list must identify the name and title of the relevant third party conformity assessment body employee(s) and the names, titles, and employer(s) of all individuals outside of the third party conformity assessment body to whom they report;
(c)
(i) To the extent practicable, manufacturers or private labelers located in any nation are permitted to choose third party conformity assessment bodies that are not owned or controlled by the government of that nation;
(ii) The third party conformity assessment body's testing results are not subject to undue influence by any other person, including another governmental entity;
(iii) The third party conformity assessment body is not accorded more favorable treatment than other third party conformity assessment bodies in the same nation who have been accredited;
(iv) The third party conformity assessment body's testing results are accorded no greater weight by other governmental authorities than those of other accredited third party conformity assessment bodies; and
(v) The third party conformity assessment body does not exercise undue influence over other governmental authorities on matters affecting its operations or on decisions by other governmental authorities controlling distribution of products based on outcomes of the third party conformity assessment body's conformity assessments.
(2) For the CPSC to evaluate whether a governmental third party conformity assessment body satisfies the criteria listed in paragraph (c)(1), and in addition to the baseline accreditation requirements in paragraph (a) of this section, a governmental third party conformity assessment body seeking CPSC-accepted status must submit:
(i)
(ii)
(iii)
(A) The memorandum must be:
(
(
(
(
(
(B) The memorandum must state that:
(
(
(
(iv)
(A) The third party conformity assessment body seeks acceptance as a governmental third party conformity assessment body under the CPSC's program of requirements for the testing of children's products;
(B) The official intends the attestation to be considered in support of any and all applications made by this third party conformity assessment body for
(C) The attestation, and any other document submitted in support of the application, is accurate in its representation of current conditions or policies at the third party conformity assessment body, to the best of the official's knowledge, information, and/or belief. The information in the attestation, and any other document submitted in support of the application, will be understood by the CPSC as continuing in its accuracy in every respect, until and unless notice of its revocation by an authorized officer of the third party conformity assessment body is received by the CPSC. The official understands that acceptance by the CPSC carries with it the obligation to comply with this part, in order to remain on the CPSC's list of accepted third party conformity assessment bodies. The attestation is submitted as a condition of acceptance of this laboratory as a governmental third party conformity assessment body by the CPSC.
(D) The word “government” in the attestation refers to any government (central, provincial, municipal, or other) in this third party conformity assessment body's country or administrative area and includes state-owned entities, even if those entities do not carry out governmental functions.
(E) With regard to consumer products to be distributed in commerce in the United States and subject to CPSC third party testing requirements, the third party conformity assessment body does not receive, and will not accept from any governmental entity, treatment that is more favorable than that received by other third party conformity assessment bodies in the same country or administrative area, which have been accepted as accredited for third party testing by the CPSC. More favorable treatment for a governmental third party conformity assessment body includes, but is not limited to, authorization to perform essential export-related functions, while competing CPSC-accepted laboratories in the same country or administrative area are not permitted to perform those same functions.
(F) With regard to consumer products to be sold in the United States and subject to CPSC third party testing requirements, the third party conformity assessment body's testing results are not accorded greater weight by any governmental entity that may be evaluating such results for export control purposes, compared to other third party conformity assessment bodies in the same country or administrative area, which have been accepted as accredited for third party testing by the CPSC.
(G) The third party conformity assessment body has an expressed policy, known to its employees, that forbids attempts at undue influence over any government authorities on matters affecting its operations.
(H) When a governmental third party conformity assessment body is owned or controlled by a governmental entity that also has any ownership or control over consumer product production, the senior officer of the applicant third party conformity assessment body must attest that the third party conformity assessment body will not conduct CPSC tests in support of a Children's Product Certificate for products for export to the United States that have been produced by an entity in which that governmental entity holds such ownership or control until it has applied for and been accepted by the Commission as, a dual governmental-firewalled third party conformity assessment body.
(v)
(d)
(e)
(f)
(g)
(h)
(i) The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of ISO/IEC 17025:2005(E) from the International Organization for Standardization (ISO), 1, ch. de la Voie-Creuse, Case postale 56, CH–1211 Geneva 20, Switzerland; Telephone +41 22 749 01 11, Fax +41 22 733 34 30;
(a) Once the CPSC publishes the requirements for accreditation to a particular CPSC rule and/or test method, a third party conformity assessment body may apply to the CPSC for acceptance to that scope of accreditation. An application may be made for acceptance of accreditation to more than one CPSC rule and/or test method. Once accepted by the CPSC, a third party conformity assessment body may apply at any time to expand the scope of its acceptance to include additional CPSC rules or test methods. A third party conformity assessment body may only issue test results for purposes of section 14 of the CPSA that fall within a scope for which the CPSC has accepted the third party conformity assessment body's accreditation.
(b) The CPSC has published previously, or in the cases of 16 CFR parts 1221, 1223, and 1224, and ASTM F 963–11 for the first time, the requirements for accreditation for third party conformity assessment bodies to assess conformity with the following CPSC rules and/or test methods:
(1) 16 CFR part 1203, Safety Standard for Bicycle Helmets;
(2) 16 CFR part 1215, Safety Standard for Infant Bath Seats;
(3) 16 CFR part 1216, Safety Standard for Infant Walkers;
(4) 16 CFR part 1217, Safety Standard for Toddler Beds;
(5) 16 CFR part 1219, Safety Standard for Full-Size Baby Cribs;
(6) 16 CFR part 1220, Safety Standard for Non-Full-Size Baby Cribs;
(7) 16 CFR part 1221, Safety Standard for Play Yards;
(8) 16 CFR part 1223, Safety Standard for Infant Swings
(9) 16 CFR part 1224, Safety Standard for Portable Bedrails;
(10) 16 CFR part 1303, Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paint. For its accreditation to be accepted by the Commission to test to 16 CFR part 1303, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope:
(i) CPSC Standard Operating Procedure for Determining Lead (Pb) in Paint and Other Similar Surface Coatings, CPSC–CH–E1003–09 and/or CPSC–CH–E1003–09.1;
(ii) ASTM F 2853–10, “Standard Test Method for Determination of Lead in Paint Layers and Similar Coatings or in Substrates and Homogenous Materials by Energy Dispersive X-Ray Fluorescence Spectrometry Using Multiple Monochromatic Excitation Beams.”
(11) 16 CFR part 1420, Safety Standard for All-Terrain Vehicles;
(12) 16 CFR 1500.86(a)(5), Exceptions from Classification as a Banned Toy or Other Banned Article for Use by Children (Clacker Balls);
(13) 16 CFR 1500.86(a)(7) and (8), Exceptions from Classification as a Banned Toy or Other Banned Article for Use by Children (Dive Sticks and Similar Articles);
(14) 16 CFR part 1501, Method for Identifying Toys and Other Articles Intended for Use by Children Under 3 Years of Age Which Present Choking, Aspiration, or Ingestion Hazards Because of Small Parts;
(15) 16 CFR part 1505, Requirements for Electrically Operated Toys or Other Electrically Operated Articles Intended for Use by Children;
(16) 16 CFR part 1510, Requirements for Rattles;
(17) 16 CFR part 1511, Requirements for Pacifiers;
(18) 16 CFR part 1512, Requirements for Bicycles;
(19) 16 CFR part 1513, Requirements for Bunk Beds;
(20) 16 CFR part 1610, Standard for the Flammability of Clothing Textiles;
(21) 16 CFR part 1611, Standard for the Flammability of Vinyl Plastic Film;
(22) 16 CFR part 1615, Standard for the Flammability of Children's Sleepwear: Sizes 0 Through 6X (FF 3–71);
(23) 16 CFR part 1616, Standard for the Flammability of Children's Sleepwear: Sizes 7 Through 14 (FF 5–74);
(24) 16 CFR part 1630, Standard for the Surface Flammability of Carpets and Rugs (FF 1–70);
(25) 16 CFR part 1631, Standard for the Surface Flammability of Small Carpets and Rugs (FF 2–70);
(26) 16 CFR part 1632, Standard for the Flammability of Mattresses and Mattress Pads (FF 4–72, amended);
(27) 16 CFR part 1633, Standard for the Flammability (Open Flame) of Mattress Sets;
(28) Lead Content in Children's Metal Jewelry. For its accreditation to be accepted by the Commission to test for lead content in children's metal jewelry, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope:
(i) CPSC Test Method CPSC–CH–E1001–08, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”; and/or the revision CPSC Test Method CPSC–CH–E1001–08.1, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”; and/or
(ii) Section I, “Screening Test for Total Pb Analysis,” from CPSC “Standard Operating Procedure for Determining Lead (Pb) and its Availability in Children's Metal Jewelry,” dated February 3, 2005;
(29) Limits on Total Lead in Children's Products: Children's Metal Products. For its accreditation to be accepted by the Commission to test for total lead content in children's metal products, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope: CPSC Test Method CPSC–CH–E1001–08, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry)”; and/or the, revision CPSC Test Method CPSC–CH–E1001–08.1, “Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (Including Children's Metal Jewelry”; and/or the revision of that test method ((Test Method CPSC–CH–E1001–08.2);
(30) Limits on Total Lead in Children's Products: Non-Metal Children's Products. For its accreditation to be accepted by the Commission to test for lead content in non-metal children's products, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope: CPSC Test Method CPSC–CH–E1002–08, “Standard Operating Procedure for Determining Total Lead (Pb) in Non-Metal Children's Products”; and/or the revision CPSC Test Method CPSC–CH–E1002–08.1, “Standard Operating Procedure for Determining Total Lead (Pb) in Non-Metal Children's Products”; and/or the revision of that test method ((Test Method CPSC–CH–E1002–08.2);
(31) Limits on Phthalates in Children's Toys and Child Care Articles. For its accreditation to be accepted by the Commission to test for phthalates in children's toys and child care articles, a third party conformity assessment body must have one or more of the following test methods referenced in its statement of scope:
(i) CPSC Test Method CPSC–CH–1001–09.3, “Standard Operating Procedure for Determination of Phthalates;” and/or
(ii) GB/T 22048–2008, “Toys and Children's Products—Determination of Phthalate Plasticizers in Polyvinyl Chloride Plastic;”
(32) ASTM International's
(i) ASTM F 963–07ε1; Section 4.27—Toy Chests (except labeling and/or instructional literature requirements)
(ii) ASTM F 963–11
(A) Section 4.3.5.1(2), Surface Coating Materials—Soluble Test for Metals
(B) Section 4.3.5.2,Toy Substrate Materials
(C) Section 4.3.6.3, Cleanliness of Liquids, Pastes, Putties, Gels, and Powders (except for cosmetics and tests on formulations used to prevent microbial degradation)
(D) Section 4.3.7, Stuffing Materials
(E) Section 4.5, Sound Producing Toys
(F) Section 4.6, Small Objects (except labeling and/or instructional literature requirements)
(G) Section 4.7, Accessible Edges (except labeling and/or instructional literature requirements)
(H) Section 4.8, Projections (except bath toy projections)
(I) Section 4.9, Accessible Points (except labeling and/or instructional literature requirements)
(J) Section 4.10, Wires or Rods
(K) Section 4.11, Nails and Fasteners
(L) Section 4.12, Plastic Film
(M) Section 4.13, Folding Mechanisms and Hinges
(N) Section 4.14, Cords, Straps, and Elastics
(O) Section 4.15, Stability and Overload Requirements
(P) Section 4.16, Confined Spaces
(Q) Section 4.17, Wheels, Tires, and Axles
(R) Section 4.18, Holes, Clearances, and Accessibility of Mechanisms
(S) Section 4.19, Simulated Protective Devices (except labeling and/or instructional literature requirements)
(T) Section 4.20.1, Pacifiers with Rubber Nipples/Nitrosamine Test
(U) Section 4.20.2, Toy Pacifiers
(V) Section 4.21, Projectile Toys
(W) Section 4.22, Teethers and Teething Toys
(X) Section 4.23.1, Rattles with Nearly Spherical, Hemispherical, or Circular Flared Ends
(Y) Section 4.24, Squeeze Toys
(Z) Section 4.25, Battery-Operated Toys (except labeling and/or instructional literature requirements)
(AA) Section 4.26, Toys Intended to Be Attached to a Crib or Playpen (except labeling and/or instructional literature requirements)
(BB) Section 4.27, Stuffed and Beanbag-Type Toys
(CC) Section 4.30, Toy Gun Marking
(DD) Section 4.32, Certain Toys with Nearly Spherical Ends
(EE) Section 4.35, Pompoms
(FF) Section 4.36, Hemispheric-Shaped Objects
(GG) Section 4.37, Yo-Yo Elastic Tether Toys
(HH) Section 4.38, Magnets (except labeling and/or instructional literature requirements)
(II) Section 4.39, Jaw Entrapment in Handles and Steering Wheels
(c) The Director of the Federal Register approves the incorporations by reference in this section in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may inspect a copy of the standards incorporated in this section at the Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone 301–504–7923, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741– 6030, or go to:
(1) ASTM F 2853–10, “Standard Test Method for Determination of Lead in Paint Layers and Similar Coatings or in Substrates and Homogenous Materials by Energy Dispersive X-Ray Fluorescence Spectrometry Using Multiple Monochromatic Excitation Beams.”
(2) GB/T 22048–2008, “Toys and Children's Products—Determination of Phthalate Plasticizers in Polyvinyl Chloride Plastic.”
(a) The CPSC staff will review each application and may contact the third party conformity assessment body with questions or to request submission of missing information.
(b) The application of a firewalled third party conformity assessment body will be accepted by order of the Commission, if the Commission finds that:
(1) Acceptance of the accreditation of the third party conformity assessment body would provide equal or greater consumer safety protection than the manufacturer's or private labeler's use of an independent third party conformity assessment body; and
(2) The third party conformity assessment body has established procedures to ensure that:
(i) Its test results are protected from undue influence by the manufacturer, private labeler, or other interested party;
(ii) The CPSC is notified immediately of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over test results; and
(iii) Allegations of undue influence may be reported confidentially to the CPSC.
(c) The CPSC will communicate its decision on each application in writing to the applicant, which may be by electronic mail.
The CPSC will maintain on its Web site an up-to-date listing of third party conformity assessment bodies whose accreditations it has accepted and the scope of each acceptance. The CPSC will update the listing regularly to account for changes, such as the addition of new CPSC rules and/or test methods to its scope of accreditation, changes to accreditation certificates, new addresses, as well as changes to the status of a third party conformity assessment body due to voluntary discontinuance, suspension, and/or withdrawal.
If the CPSC has specified a test method, a third party conformity assessment body must use that test method for any tests conducted for purposes of section 14 of the CPSA.
(a) A CPSC-accepted third party conformity assessment body (which, for purposes of this section, also will be referred to as the prime contractor) may only subcontract work conducted for purposes of section 14 of the CPSA to other third party conformity assessment bodies that have been accepted by the CPSC for the scope necessary for the subcontracted work. Violation of this provision constitutes compromising the integrity of the testing process and may be grounds for withdrawal of the CPSC's acceptance of the accreditation of the prime and/or subcontracting third party conformity assessment body.
(b) The provisions of this part apply to all CPSC-accepted third party conformity assessment bodies, even if they are a prime contractor and/or a subcontractor.
(a) The third party conformity assessment body must maintain the following records, which must be legible:
(1) All test reports and technical records related to tests conducted for purposes of section 14 of the CPSA must be maintained for a period of at least five years from the date the test was conducted;
(2) In the case of a test report for a test conducted by a CPSC-accepted third party conformity assessment body acting as a subcontractor, the prime contractor's test report must clearly identify which test(s) was performed by a CPSC-accepted third party conformity assessment body acting as a subcontractor(s), and the test report from the CPSC-accepted third party conformity assessment body acting as a subcontractor must be appended to the prime contractor's test report.
(3) Where a report, for purposes of section 14 of the CPSA, provided by the third party conformity assessment body to a customer is different from the test record, the third party conformity assessment body also must retain the report provided to the customer for a
(4) Any and all third party conformity assessment body internal documents describing testing protocols and procedures (such as instructions, standards, manuals, guides, and reference data) that have applied to a test conducted for purposes of section 14 of the CPSA must be retained for a period of at least five years from the date such test was conducted.
(b) Upon request by the CPSC, the third party conformity assessment body must make any and all of the records required by this section available for inspection, either in hard copy or electronic form, within 48 hours. If the records are not in the English language, the third party conformity assessment body must make copies of the original (non-English language) available to the CPSC within 48 hours, and they must make an English translation of the records available to the CPSC within 30 calendar days of the date the CPSC requested an English translation.
A third party conformity assessment body, as a condition of the continued CPSC-acceptance of its accreditation, must allow an officer or employee duly designated by the CPSC to enter and inspect the third party conformity assessment body for purposes of an investigation under this part. The CPSC will conduct such inspections in accordance with 16 CFR 1118.2. Failure to cooperate with such an inspection constitutes failure to cooperate with an investigation and is grounds for suspension under § 1112.45.
(a) A third party conformity assessment body may voluntarily discontinue participation as a CPSC-accepted third party conformity assessment body at any time and for any portion of its scope that is accepted by the CPSC. The third party conformity assessment body must notify the CPSC, in writing, which may be electronic. The notice must include:
(1) Name, address, phone number, electronic mail address for the third party conformity assessment body and the person responsible for submitting the request;
(2) Scope of the discontinuance;
(3) Beginning date for the discontinuance;
(4) Statement that the third party conformity assessment body understands that it must reapply for acceptance of the accreditation scope for which it is requesting discontinuance; and
(5) Verification that the person requesting the discontinuance has the authority to make such a request on behalf of the third party conformity assessment body.
(b) The CPSC may verify the information submitted in a notice of voluntary discontinuance.
(c) Upon receipt of a notice from a third party conformity assessment body that it wishes to discontinue voluntarily as a CPSC-accepted third party conformity assessment body, or after verifying the information in a notice, the CPSC will update its Web site to indicate that the CPSC no longer accepts the accreditation of the third party conformity assessment body for the scope indicated, as of the date provided in the notice.
(d) Notwithstanding a third party conformity assessment body's voluntary discontinuance as a CPSC-accepted third party conformity assessment body, the CPSC may begin or continue an investigation related to an adverse action under this part, or other legal action.
5. Amend § 1112.35, as added elsewhere in this issue of the
(b) For the examination portion of the audit, which is conducted by the CPSC:
(1) Each third party conformity assessment body must submit a CPSC Form 223 for audit purposes no less than every two years. When a CPSC Form 223 is submitted for audit purposes, the third party conformity assessment body must submit any accompanying documentation that would be required if it were a new application.
(2) Under § 1112.13(a)(1), a third party conformity assessment body must submit a new CPSC Form 223 whenever the information supplied on the form changes. In the event that the third party conformity assessment body submits a new CPSC Form 223 to provide updated information, the third party conformity assessment body may elect to have the new CPSC Form 223 satisfy the requirement of paragraph (b)(1) of this section. If the third party conformity assessment body intends to have the new CPSC Form 223 treated as its submission for audit purposes, the third party conformity assessment body must make that intention clear upon submission, and it must submit any accompanying documentation that would be required if it were a new application.
(3) At least 30 days prior to the date by which a third party conformity assessment body must submit a CPSC Form 223 for audit purposes, the CPSC will notify the body in writing, which may be electronic, of the impending audit deadline. A third party conformity assessment body may request an extension of the deadline for the examination portion of the audit, but it must indicate how much additional time is requested and explain why such an extension is warranted. The CPSC will notify the third party conformity assessment body whether its request for an extension has been granted.
6. Amend part 1112, as added elsewhere in this issue of the
(a) Potential adverse actions against a third party conformity assessment body include:
(1) Denial of Acceptance of Accreditation;
(2) Suspension of Acceptance of Accreditation; or
(3) Withdrawal of Acceptance of Accreditation.
(b) Withdrawal of acceptance of accreditation can be on a temporary or permanent basis, and the CPSC may immediately withdraw its acceptance in
(a) The CPSC may deny an application for any of the following reasons:
(1) Failure to complete all information, and/or attestations, and/or failure to provide accompanying documentation, required in connection with an application within 30 days after notice of a deficiency by the CPSC;
(2) Submission of false or misleading information concerning a material fact(s) on an application, any materials accompanying an application, or on any other information provided to the CPSC related to a third party conformity assessment body's ability to become or to remain a CPSC-accepted third party conformity assessment body; or
(3) Failure to satisfy necessary requirements described in § 1112.13, such as ISO/IEC 17025:2005 accreditation by a ILAC–MRA signatory accreditation body for the CPSC scope for which acceptance of accreditation is being sought.
(b) The CPSC's denial of an application will follow the process described in § 1112.51 of this subpart.
(a) The CPSC may suspend its acceptance of a third party conformity assessment body's accreditation for any portion of its scope when the third party conformity assessment body fails to cooperate with an investigation under section 14 of the CPSA. A third party conformity assessment body “fails to cooperate” when it does not respond to CPSC inquiries or requests, or it responds in a manner that is unresponsive, evasive, deceptive, or substantially incomplete, or when it fails to cooperate with an investigatory inspection under § 1112.27.
(b) Suspension lasts until the third party conformity assessment body complies, to the satisfaction of the CPSC, with required actions, as outlined in the notice described in § 1112.51(b), or until the CPSC withdraws its acceptance of the third party conformity assessment body.
(c) If the CPSC determines that the third party conformity assessment body is cooperating sufficiently with the CPSC's investigation, the CPSC will lift the suspension. The suspension will lift as of the date of the CPSC's written notification to the third party conformity assessment body that the CPSC is lifting the suspension. The written notification may be by electronic mail.
(a) A manufacturer, private labeler, governmental entity, or other interested party has exerted undue influence on such third party conformity assessment body or otherwise interfered with or compromised the integrity of the testing process.
(b) The third party conformity assessment body failed to comply with an applicable protocol, standard, or requirement under subpart C of this part.
(c) The third party conformity assessment body failed to comply with any provision in subpart B of this part.
(a)
(1) Contact information, including a name and/or a method by which the CPSC may contact the person providing the information;
(2) Identification of the third party conformity assessment body against whom the allegation is being made, identification of any officials or employees of the third party conformity assessment body relevant to the allegation, and contact information for such individuals.
(3) Identification of any manufacturers, distributors, importers, private labelers, and/or governmental entities relevant to the allegation. The submission also should identify any officials or employees of the manufacturers, distributors, importers, private labelers, or governmental entities relevant to the allegation, and contact information for such individuals.
(4) Description of acts and/or omissions to support each asserted ground for adverse action. Generally, the submission should describe, in detail, the basis for the allegation that grounds for adverse action against a third party conformity assessment body exists. In addition to a description of the acts and omissions and their significance, a description may include: Dates, times, persons, companies, governmental entities, locations, products, tests, test results, equipment, supplies, frequency of occurrence, and negative outcomes. When possible, the submission should attach documents, records, photographs, correspondence, notes, electronic mails, or any other information that supports the basis for the allegations;
(5) Description of the impact of the acts and/or omissions, where known.
(b)
(a)
(2) The Commission will use its
(3) An investigation under this part may include any act the CPSC takes to verify the accuracy, veracity, and/or completeness of information received in connection with an application for acceptance of accreditation, a submission alleging grounds for an adverse action, or any other information received by the CPSC that relates to a third party conformity assessment body's ability to become or remain a CPSC-accepted third party conformity assessment body.
(4) The CPSC will begin an investigation under this part by providing written notice, which may be electronic, to the third party conformity assessment body. The notice will inform the third party conformity assessment body that the CPSC has received information sufficient to warrant an investigation, and it will describe the information received by the CPSC and the CPSC's investigative process. The notice also will inform the third party conformity assessment body that failure to cooperate with a CPSC investigation is grounds for suspension under § 1112.45 of this subpart.
(5) The notice sent by the CPSC under § 1112.35(b)(3) informing the third party conformity assessment body that it must submit a CPSC Form 223 for audit purposes, which may be electronic, constitutes notice of investigation for purposes of this section. The
(b)
(1) The proposed adverse action;
(2) Specific grounds on which the proposed adverse action is based;
(3) Findings of fact to support the proposed adverse action;
(4) When appropriate, specific actions a third party conformity assessment body must take to avoid an adverse action;
(5) When the proposed adverse action is withdrawal, consideration of the criteria set forth in paragraph (d)(1) of this section;
(6) The time period by which a third party conformity assessment body has to respond to the notice. In general, the notice will inform the third party conformity assessment body that it has 30 calendar days to respond. A third party conformity assessment body may request an extension of the response time, but they must explain why such an extension is warranted and the amount of additional time needed for a response; and
(7) Except under § 1112.53, a CPSC-accepted third party conformity assessment body may continue to conduct tests for purposes of section 14 of the CPSA until a Final Notice of adverse action is issued.
(c)
(d)
(i) Whether the action or failure to act resulted in injury, death, or the risk of injury or death;
(ii) Whether the action or failure to act constitutes an isolated incident or represents a pattern or practice; and
(iii) Whether and when the third party conformity assessment body initiated remedial action.
(2) In all cases, the CPSC will review and take under advisement the response provided by the third party conformity assessment body. Except for cases under paragraph (d)(3) of this section, the CPSC will determine what action is appropriate under the circumstances.
(3) If, after reviewing and taking under advisement the response provided by a CPSC-accepted firewalled third party conformity assessment body, the CPSC staff concludes that suspension or withdrawal of CPSC acceptance of accreditation is appropriate, staff will transmit their recommendation to the Commission for consideration. Any suspension or withdrawal of CPSC acceptance of accreditation of a firewalled third party conformity assessment body (including immediate and temporary withdrawal under § 1112.53) will be by order of the Commission.
(4) The CPSC may withdraw its acceptance of the accreditation of a third party conformity assessment body on a permanent or temporary basis.
(5) If the CPSC withdraws its acceptance of the accreditation of a third party conformity assessment body, the CPSC may establish conditions for the reacceptance of the accreditation of the third party conformity assessment body, under section 14(e)(2)(B)(ii) of the CPSA. Any such conditions would be related to the reason(s) for the withdrawal.
(e)
(1) The adverse action that the CPSC is taking;
(2) Specific grounds on which the adverse action is based;
(3) Findings of fact that support the adverse action;
(4) When the adverse action is withdrawal, consideration of the criteria as set forth in paragraph (d)(1) of this section;
(5) When the adverse action is withdrawal, whether the withdrawal is temporary or permanent, and if temporary, the duration of the withdrawal;
(6) The third party conformity assessment body's accreditation is not accepted by the Commission as of the date of the Final Notice of denial, suspension, or withdrawal, for specified portion(s) of its CPSC scope. The CPSC Web site will be updated to reflect adverse actions to any previously CPSC-accepted third party conformity assessment bodies; and
(7) Whether the third party conformity assessment body may submit a new application.
(f)
(1) If the Final Notice indicates such, the third party conformity assessment body may submit a new application; or
(2) File an Administrative Appeal.
(g)
(i) The Administrative Appeal must be sent, by mail, within 30 calendar days of the date on the Final Notice to: The Office of the Executive Director, Room 812, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, or by electronic mail to:
(ii) All appeals must be in writing, in English.
(iii) All appeals must explain the nature and scope of the issues appealed from in the Final Decision, and must describe in detail the reasons why the third party conformity assessment body believes that no ground(s) for adverse action exist.
(iv) If an Administrative Appeal is timely filed, the Executive Director will issue a Final Decision within 60 calendar days of receipt. If the Executive Director's Final Decision requires more than 60 calendar days, he or she will notify the third party conformity assessment body that more time is required, state the reason(s) why more time is required, and, if feasible, include an estimated date for a Final Decision to issue.
(2) In the case that the Commission has suspended or withdrawn its acceptance of the accreditation of a firewalled third party conformity assessment body, the firewalled third party conformity assessment body may file an Administrative Appeal with the Commission.
(i) The Administrative Appeal must be sent, by mail, within 30 calendar days of the date on the Final Notice to: The Office of the Secretary, Room 820, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, or by electronic mail to:
(ii) All appeals must be in writing, in English.
(iii) All appeals must explain the nature of the issues appealed from in the Final Decision, and must describe in detail the reasons why the third party conformity assessment body believes that no ground(s) for adverse action exist.
(a) When it is in the public interest to protect health and safety, and notwithstanding any other provision of this part, the CPSC may withdraw immediately and temporarily its acceptance of a third party conformity assessment body's accreditation for any portion of its CPSC scope while the CPSC pursues an investigation and potential adverse action under § 1112.51 of this subpart.
(1) For purposes of this part, “in the public interest to protect health and safety” means that the CPSC has credible evidence that:
(i) The integrity of test(s) being conducted under a scope for which the CPSC has accepted the third party conformity assessment body's accreditation, have been affected by undue influence or otherwise interfered with or compromised; and
(ii) The scope for which the CPSC has accepted the third party conformity assessment body's accreditation involve a product(s) which, if noncompliant with CPSC rules, bans, standards, and/or regulations, constitutes an imminently hazardous consumer product under section 12 of the CPSA.
(2) When presented with an allegation that, if credible, would result in immediate and temporary withdrawal of CPSC acceptance of a third party conformity assessment body's accreditation, the investigation and adverse action procedures described in § 1112.51 apply, except that instead of the timeframes described in § 1112.51, the following timeframes will apply when the CPSC pursues immediate and temporary withdrawal:
(i) The Initial Notice will generally inform the third party conformity assessment body that it has 7 calendar days to respond.
(ii) An administrative appeal of a Final Notice of immediate and temporary withdrawal will be timely if filed within 7 calendar days of the date of the Final Notice.
(b) If the third party conformity assessment body is already the subject of an investigation or adverse action process under § 1112.51 of this subpart, the immediate and temporary withdrawal will remain in effect until: The agency communicates in writing that the immediate and temporary withdrawal has been lifted; the investigation concludes and the agency does not propose an adverse action; or the adverse action process concludes with denial, suspension, or withdrawal.
(c) If the third party conformity assessment body is not already the subject of an investigation or adverse action process under § 1112.51 of this subpart, an investigation under § 1112.51(a) will be launched based on the same information that justified the immediate and temporary withdrawal.
Immediately following a final adverse action, the CPSC may publish the fact of a final adverse action, the text of a final adverse action, or a summary of the substance of a final adverse action. After issuance of a final adverse action, the CPSC will amend its Web site listing of CPSC-accepted third party conformity assessment bodies to reflect the nature and scope of such adverse action.
7. The authority citation for part 1118 is revised to read as follows:
15 U.S.C. 2063; 15 U.S.C. 2065; 15 U.S.C. 2068; 15 U.S.C. 2076; sec. 3, Pub. L. 110–314, 122 Stat. 3016.
8. Amend § 1118.2 by revising paragraph (a) to read as follows:
(a) After an inspection is initiated as set forth in § 1118.1, an officer or employee duly designated by the Commission shall issue the notice of inspection (hereinafter referred to as “notice”). Upon presenting the notice, along with appropriate credentials, to the person or agent in charge of the firm to be inspected, the Commission officer or employee is authorized for the purposes set forth in § 1118.1(a):
(1) To enter, at reasonable times, any factory, warehouse, firewalled third party conformity assessment body, or establishment in which products are manufactured, tested, or held, in connection with distribution in commerce, or any conveyance being used to transport products in connection with distribution in commerce; and
(2) To inspect, at reasonable times and in a reasonable manner, any conveyance or those areas of the factory, warehouse, firewalled third party conformity assessment body, or establishment where products are manufactured, tested, held, or transported and that may relate to the safety of those products; and
(3) To have access to and to copy all relevant records, books, documents, papers, packaging, or labeling which:
(i) Is required by the Commission to be established, made or maintained, or
(ii) Show or relate to the production, inventory, testing, distribution, sale, transportation, importation, or receipt of any product, or that are otherwise relevant to determining whether any person or firm has acted or is acting in compliance with the Act and regulations, rules, and orders promulgated under the Act, and
(4) To obtain:
(i) Information, both oral and written, concerning the production, inventory, testing, distribution, sale, transportation, importation, or receipt of any product, and the organization, business, conduct, practices, and management of any person or firm being inspected and its relation to any other person or firm;
(ii) Samples of items, materials, substances, products, containers, packages and packaging, and labels and labeling, or any component at manufacturer's, distributor's, third party conformity assessment body's, or retailer's cost, unless voluntarily provided; and
(iii) Information, both oral and written, concerning any matter referred to in the Act and these rules.
(b) If any two or more individuals designated in paragraph (11) or (12) of subsection (a) were sworn in to, or commenced service in, their respective offices on the same day, precedence shall be determined by the alphabetical order of the State in which the individual serves.
(b) No individual who is serving in an office listed in section 1(a)(1)–(15) of this order shall act as Secretary unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998.
(c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Secretary.
(a) Deputy Secretary of Commerce;
(b) General Counsel of the Department of Commerce;
(c) Under Secretary of Commerce for International Trade;
(d) Under Secretary of Commerce for Economic Affairs;
(e) Under Secretary of Commerce for Standards and Technology;
(f) Under Secretary of Commerce for Oceans and Atmosphere and Administrator of the National Oceanic and Atmospheric Administration;
(g) Under Secretary of Commerce for Export Administration;
(h) Chief Financial Officer of the Department of Commerce and Assistant Secretary of Commerce (Administration); and
(i) The Boulder Laboratories Site Manager, National Institute of Standards and Technology.
(b) No individual listed in section 1(a)–(i) of this order shall act as Secretary unless that individual is otherwise eligible to so serve under the Act, as amended.
(c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Secretary.
(a) General Counsel;
(b) Assistant Administrator, Office of Solid Waste;
(c) Assistant Administrator for Toxic Substances (also known as the Assistant Administrator for the Office of Chemical Safety and Pollution Prevention);
(d) Assistant Administrator for the Office of Air and Radiation;
(e) Assistant Administrator for the Office of Water;
(f) Assistant Administrator for the Office of Enforcement and Compliance Assurance;
(g) Chief Financial Officer;
(h) Assistant Administrator for the Office of Research and Development;
(i) Assistant Administrator for the Office of International and Tribal Affairs;
(j) Assistant Administrator for the Office of Administration and Resources Management;
(k) Assistant Administrator for the Office of Environmental Information;
(l) Regional Administrator, Region VIII; and
(m) Deputy Regional Administrator, Region II.
(b) No individual listed in section 1(a)–(m) of this order shall act as Administrator unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998, as amended.
(c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Administrator.
(a) Deputy Director for Management;
(b) Executive Associate Director;
(c) Associate Director (National Security Programs);
(d) Associate Director (General Government Programs);
(e) Associate Director (Education, Income Maintenance, and Labor Programs);
(f) Associate Director (Health Programs);
(g) Associate Director (Natural Resource Programs);
(h) General Counsel;
(i) Administrator for Federal Procurement Policy;
(j) Administrator of the Office of Information and Regulatory Affairs;
(k) Controller, Office of Federal Financial Management;
(l) Administrator of the Office of Electronic Government; and
(m) Intellectual Property Enforcement Coordinator.
(b) No individual listed in section 1(a)–(m) of this order shall act as Director unless that individual is otherwise eligible to so serve under the Act.
(c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Director.