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Food Safety and Inspection Service, USDA.
Response to comments on final determination; planned implementation for testing raw beef manufacturing trimmings.
The Food Safety and Inspection Service (FSIS) is confirming that it will implement routine verification testing for six Shiga toxin-producing
Beginning June 4, 2012, FSIS will implement routine verification testing for the six additional STECs discussed in this document (O26, O45, O103, O111, O121, and O145), in raw beef manufacturing trimmings (domestic or imported) derived from cattle slaughtered on or after June 4, 2012. To allow industry time to implement any appropriate changes in food safety systems, including control procedures in their processes, FSIS will generally not regard raw, non-intact beef products or the components of these products found to have these pathogens as adulterated until June 4, 2012. FSIS will announce in a future
Rachel Edelstein, Acting Assistant Administrator, Office of Policy and Program Development, Food Safety and Inspection Service, U.S. Department of Agriculture, (202) 205-0495.
On September 20, 2011, FSIS published a document in the
FSIS announced that it intended to implement sampling and testing for the six non-O157 STEC, as it already does for
In addition, FSIS asked for comments on Agency plans for a baseline survey of the prevalence of the specified STEC in raw beef products, whether to hold technical or other public meetings, various cost estimates, the type of outreach and information that would be most useful to establishments preparing for implementation by the Agency of its sampling and verification testing program, and information that foreign governments might need to address inspection equivalency or implementation concerns.
FSIS extended the public comment period from November 21, 2011, to December 21, 2011, and held a public meeting by teleconference on December 1, 2011. (76 FR 72331; Nov. 23, 2011).
In response to comments received from industry, FSIS issued a
When FSIS laboratories analyze the samples, FSIS anticipates that there will be some samples that will, in the first stage of the FSIS screen test, test positive for Shiga toxin gene (
FSIS, as a public health regulatory agency, has adopted a preventive, risk mitigation strategy that takes into consideration the fact that the specified STECs are adulterants of certain raw beef products. In support of this strategy, FSIS has finalized its risk profile to reflect comments, the results in a recent article on thermal resistance of STEC-inoculated non-intact beef steaks with strains of
In the September 20, 2011,
In finalizing the plan for implementing its verification activities, including the sampling and testing program for the specified STECs, FSIS considered all comments submitted in response to the September 2011 final determination, as well as comments provided at the December 1 teleconference, and is clarifying certain aspects of the implementation of the verification activities.
FSIS will issue a
The Agency is updating the economic analysis published in the September 20, 2011,
FSIS received approximately 34 comments in response to the September 2011 notice. Comments received from consumer groups supported the implementation of the final determination that six additional STEC serotypes are considered adulterants in non-intact raw beef products and intact beef products used to produce such products and encouraged FSIS to resist delaying the implementation date. Several consumer advocacy groups, citing the incidence of foodborne disease caused by these organisms, expressed support for FSIS's final determination. Comments submitted by industry, trade associations, and foreign countries expressed concerns about the final determination and implementation of the verification sampling and testing program.
Following is a discussion of comments that requested more information or clarification regarding the verification testing program that will begin on June 4, 2012.
Nonetheless, in 2013 FSIS intends to conduct the carcass baseline survey discussed in the September 20, 2011
Regarding a baseline for raw beef manufacturing trimmings, other raw ground beef components, and ground beef, FSIS is assessing its current verification testing programs to see how those programs can be modified to yield on-going baseline information and obviate the need for stand-alone baseline studies.
At this time, FSIS is not planning to host a technical meeting relating to non-O157 STEC. Commenters did not identify any specific need for a technical meeting. If there is evidence that a technical meeting would be helpful to industry, FSIS will, of course, reconsider this issue.
Screening and confirmation methods for non-O157 STEC are available to industry. In addition, reagents are commercially available to those companies planning to use the FSIS method. Some establishments have been testing for non-O157 STECs for a year or more.
Several companies have submitted test kits to detect at least the six specified STEC O-groups for review by validation bodies. Using the FSIS compliance guidelines related to validating test kits, FSIS has reviewed validation data from test kits and issued no-objection-letters (NOLs) to several manufacturers. The NOLs provide establishments with supporting documentation regarding the reliability of verification testing results. Confirmation testing is available to industry through commercial reagents.
Regarding the contention that a risk assessment is needed, the Agency has assessed scientific data from several fields on the risk posed by non-O157 STECs and determined that these pathogens are adulterants under the FMIA. To make this determination, the Agency prepared a risk profile, which has been independently peer reviewed in accordance with Office of Management and Budget (OMB) guidelines. Both, the CDC and the Food and Drug Administration (FDA)/Center for Food Safety and Applied Nutrition reviewed the document and provided input on FSIS' approach. The risk profile lays out all available information on the public health concerns posed by these organisms and supports the adulteration determination regarding these
FSIS acknowledges that the best approach to reducing STEC contamination lies not in comprehensive end-product testing but in the development and implementation of science-based preventive controls, with end-product testing to verify process control. FSIS's non-O157 STEC testing program will improve food safety because FSIS anticipates that establishments may voluntarily make changes to their food safety systems in response to the new testing. For example, establishments may initiate a testing program for non-O157 STECs or may add new interventions to address pathogens. FSIS is aware that some companies have added new bacteriophage interventions to address non-O157 STEC. FSIS is not requiring such changes but anticipates establishments may make these types of changes in response to the testing.
The non-O157 STECs may cause illnesses of varying severity. Though limited data are available on dose-response, there is evidence that the infectious doses of the pathogens are relatively low. Hence, their potential to cause illness is relatively high. Although there is variability in virulence severity of non-O157 STECs, the six specified non-O157 STEC organisms can cause severe foodborne illness requiring hospitalization. Numerous illnesses in the United States have resulted from all six of the non-O157 STECs. CDC data show that the six STEC organisms for which FSIS will be testing are known to cause more than 80 percent of human illnesses attributed to non-O157 STEC.
The number of illnesses and deaths caused by non-O157 STECs and associated with beef consumption or a beef source is likely to decline if establishments voluntarily make changes to their food safety system that result in greater public health protection. Also, FSIS's current testing for
FSIS is not requiring STEC testing by industry, nor will it establish a requirement for the FSIS testing methodology to be used. Also, foreign government central competent authorities and foreign establishments can determine what testing to conduct and can use any test that they determine is sufficient to identify the presence of the specified STECs. As with the domestic beef establishments, foreign government central competent authorities and foreign establishments are expected to ensure that raw beef product is controlled for the presence of the specified non-O157 STECs.
Some establishments may use the FSIS laboratory method or another method that could indicate the presence of
Therefore, if an establishment finds product positive for any of the specified non-O157 STECs in screen testing, does not confirm the finding as negative, and has not addressed the hazard in its HACCP system, the establishment would be required to take corrective actions, including reassessing its HACCP plan (9 CFR 417.3).
FSIS recognizes that industry uses non-culture methods that detect alternative target analytes for
FSIS encourages establishments to maintain records from “beta testing” as part of the documentation of the development of their food safety systems. Establishments may use these records to show the controls they have in place and the disposition of their products.
Because both
The September 20, 2011,
Several trade associations and foreign governments addressed various topics relating to the treatment of imported products at port of entry, the equivalency of foreign inspection systems, and United States obligations under World Trade Organization agreements. Governments and industry trade groups expressed concern that the new non-O157 STEC policy may violate the United States' obligations under the Agreement on Sanitary and Phytosanitary (SPS) Measures. Finally, governments and trade associations questioned the adequacy of the FSIS risk profile with respect to how it addresses characteristics of non-O157 STEC.
If the product is confirmed positive and has been held by the establishment or retained by FSIS at the import establishment, FSIS will refuse entry of the product. If the confirmed-positive product has not been held at the import
FSIS has notified its trading partners about the new non-O157 STEC testing policy. The Agency has committed to video conferencing and teleconferencing exchanges to assist foreign governments in understanding the policy and how it applies to them. The Agency expects countries that export products to the United States to address non-O157 STEC under existing agreements and to prevent contamination of their raw beef products with these adulterants. Foreign countries may use any method that will ensure, with reasonable confidence, that products that they export to the United States will not be contaminated with detectable non-O157 STEC. Because of the nature of non-O157 STECs, FSIS would not exclude any country importing product subject to testing from non-O157 STEC verification testing by FSIS.
Finally, the Agency has assessed scientific data from several fields on the risk posed by non-O157 STECs and determined that these pathogens are adulterants under the FMIA. To make this determination, the Agency prepared a risk profile, which has been independently peer-reviewed in accordance with Office of Management and Budget (OMB) guidelines. Both CDC and FDA reviewed the document and supported FSIS's approach.
The risk profile, in its final version, incorporates CDC data that show that the organisms for which FSIS will be testing are known to cause more than 80 percent of human illnesses attributable to non-O157 STECs in the United States.
In addition, FSIS refined the risk profile substantially in response to comments that were received during peer review. Accordingly, the risk profile represents the best characterization of the science associated with the risk from the specified non-O157 STECs.
One commenter raised a concern about the attribution of a non-O157 STEC outbreak in 2007 to a beef product. This outbreak was included in the risk profile.
CDC has information, including a May 21, 2010, memo, stating that, “The preliminary data in the table were obtained primarily from reports voluntarily made by state health departments to CDC. In 2010, we supplemented NORS [National Outbreak Reporting System] data from the on non-O157 STEC outbreaks by contacting state and federal health agencies, by reviewing the scientific literature, and by other methods.” The data reported in the memo may be more complete than the data submitted by the reporting agency to the Foodborne Disease Outbreak Surveillance System (FDOSS), which is a component of NORS. In the memo, CDC listed the confirmed or suspected vehicle for this outbreak as ground beef. This was based on a posting on the North Dakota State Health Department Web site.
FSIS recognizes that the availability of attribution data for the non-O157 STECs is partially a function of the number of clinical laboratories that test for the pathogens, as well as of the robustness of epidemiological investigations. In this case, however, the only available information suggests that the non-O157 STEC outbreak may have been linked to a beef product.
As noted earlier in this document, in response to comments on the September 20, 2011, notice (76 FR 58157), FSIS extended the public comment period from November 21, 2011, to December 21, 2011 (76 FR 72331; Nov. 23, 2011). Also in response to public comments, FSIS held a technical meeting December 1, 2011, to solicit additional comments. FSIS later moved the implementation date of the non-O157 STEC verification policy for beef manufacturing trimmings to June 4, 2012 (77 FR 9888; Feb. 21, 2012). The purpose of the delay in implementation was to allow the regulated establishments time to effect any necessary changes in their food safety systems, including process control procedures, and to allow time for improvements in testing methods.
In addition, in response to comments, the Agency made available to foreign governments reagents used in the FSIS method. To allay other concerns of foreign governments, the Agency affirmed that it would treat incoming foreign product in the same way that it treats such product FSIS tests for
On the matter of using indicator organisms, FSIS has affirmed that testing of source materials of raw, non-intact beef products for STEC to verify process controls can be effective if the materials are sampled at sufficiently high frequencies. However, FSIS has clarified that
In response to questions, FSIS has clarified that establishments are not required to take corrective actions in response to FSIS screen positive results. However, FSIS has also clarified that if establishments find product positive for non-O157 STECs in their screen tests and do not conduct further testing to confirm that the product is negative, FSIS will consider the product positive for non-O157 STECs, just as FSIS considers product that screens positive for
Finally, the Agency has finalized the risk profile on the non-O157 STECs and has incorporated relevant information conveyed by commenters.
The policy discussed in this notice does not have Tribal Implications that preempt Tribal Law.
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at 202-720-2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call 202-720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce it on-line through the FSIS Web page located at—
FSIS also will make copies of this
National Credit Union Administration (NCUA).
Final rule and interim final rule with comment period.
NCUA is removing certain regulations and eliminating the Regulatory Flexibility Program (RegFlex) to provide regulatory relief to federal credit unions. NCUA is also removing or amending related rules to ease compliance burden while retaining certain safety and soundness standards. Those rules pertain to eligible obligations, charitable contributions, nonmember deposits, fixed assets, investments, incidental powers, and member business loans. In addition, NCUA is issuing an interim final rule with a request for comment to amend a provision in the fidelity bond rule to remove references to RegFlex.
In commenting on the interim final rule, you may submit comments by any of the following methods (Please send comments by one method only):
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Chrisanthy Loizos, Staff Attorney, Office of General Counsel, at the above address or telephone (703) 518-6540, or Matthew J. Biliouris, Director of Supervision, or J. Owen Cole, Director, Division of Capital Markets, Office of Examination and Insurance, at the above address or telephone (703) 518-6360.
On July 11, 2011, President Obama issued Executive Order 13579, ordering independent agencies, including NCUA, to consider whether they can modify, streamline, expand, or repeal existing rules to make their programs more effective and less burdensome. Consistent with the spirit of the Executive Order and as part of NCUA's Regulatory Modernization Initiative, the NCUA Board (Board) is adopting this rule to streamline its regulatory program by eliminating RegFlex. The final rule relieves regulatory burden on federal credit unions (FCUs) because they will no longer need to engage in any process for a RegFlex designation. In addition, the final rule provides regulatory relief to FCUs that are currently not RegFlex eligible because it extends to them most of the flexibilities previously available only to RegFlex FCUs.
The Board issued a Notice of Proposed Rulemaking (NPRM) in December 2011. 76 FR 81421 (Dec. 28, 2011). The comment period on the proposed rule ended on February 27, 2012. NCUA received seventeen comment letters on the NPRM: Four from FCUs, three from trade associations (1 representing banks, 2 representing credit unions), nine from state credit union leagues, and one from a law firm. The majority of the commenters supported the rulemaking generally. Four commenters did not support the rule as proposed, and the remaining commenters offered comments on particular provisions but did not take a position on the initiative as a whole. For the reasons discussed below, the Board is adopting the amendments almost exactly as proposed. As such, the Board does not restate the legal analysis it presented in the NPRM's preamble and incorporates it by reference here in this rulemaking.
The Board established RegFlex in 2002. 66 FR 58656 (Nov. 23, 2001). RegFlex relieved FCUs from certain regulatory restrictions and granted them additional powers if they demonstrated sustained superior performance as measured by CAMEL rating and net worth classification. An FCU could qualify for RegFlex treatment automatically or by application to the appropriate regional director. Specifically, an FCU automatically qualified for a RegFlex designation when it received a composite CAMEL rating of “1” or “2” for two consecutive examination cycles and maintained a net worth classification of “well capitalized” under part 702 of NCUA's rules for the last six quarters. An FCU subject to a risk-based net worth (RBNW) requirement under part 702 could also qualify for RegFlex treatment
The rule gave RegFlex FCUs relief from restrictions in the following six areas or “flexibilities”: (1) Charitable contributions; (2) nonmember deposits; (3) fixed assets; (4) zero-coupon investments; (5) borrowing repurchase transactions; and (6) commercial mortgage related securities (CMRS). It provided an additional flexibility by specifically authorizing the purchase of obligations from federally insured credit unions beyond those an FCU may purchase under the NCUA's eligible obligations rule, § 701.23. RegFlex FCUs were also permitted a higher maximum allowable deductible for fidelity bond coverage under § 713.6.
The Board proposed to eliminate RegFlex and the charitable contributions rule, and amend the rules that apply to eligible obligations, nonmember deposits, fixed assets, and investments, so that all FCUs could engage in activities previously permitted only for RegFlex FCUs, subject to some conditions. 76 FR 81421 (Dec. 28, 2011).
The NPRM removed the charitable contributions rule in its entirety and placed the remaining six flexibilities of the RegFlex rule into the subject-specific rules that apply to all FCUs. It adjusted the nonmember deposits rule to allow some FCUs to accept more nonmember deposits. The proposed rule extended to six years the amount of time in which all FCUs must occupy unimproved property under NCUA's fixed assets rule. The proposed amendments to the investment rule permitted extended maturities for zero-coupon investments and borrowing repurchase transactions, as well as the purchase of CMRS under similar conditions allowed for RegFlex FCUs. The NPRM moved the provisions to buy nonmember and other obligations from the RegFlex rule into the eligible obligations rule, § 701.23. Lastly, the proposal made a nonsubstantive change to the member business loan rule that cross-references RegFlex.
While providing additional regulatory flexibility, the NPRM made a few modifications to authorities and did not extend the full scope of every RegFlex authority to all FCUs. The Board proposed to remove the automatic exemption from the nonmember deposits limit that had been granted to RegFlex FCUs. In so doing, the Board noted that the change would not negatively impact those FCUs based on the volume of nonmember deposits held by them.
With regard to the investment rule amendments, the NPRM created a “well capitalized standard” based on the automatic designation criteria used in RegFlex. An FCU meets the well capitalized standard if it has received a composite CAMEL rating of “1” or “2” for two consecutive full examinations and (1) has maintained a “well capitalized” net worth classification for the immediately preceding six quarters, or (2) has remained “well capitalized” for the immediately preceding six quarters after applying the applicable RBNW requirement.
The proposed rule provided that well capitalized FCUs could purchase zero-coupon investments with a maximum maturity of no more than 30 years, while FCUs not meeting the standard would continue to be subject to a maturity cap of 10 years unless they received approval from their regional director. The NPRM permitted FCUs not meeting the well capitalized standard to enter into borrowing repurchase transactions in which the security purchased with the proceeds from the borrowing agreement matured no more than 30 days after the maturity of the borrowing, unless they received additional approval from their regional director. Consistent with the RegFlex program, the NPRM did not impose the 30-day mismatch restriction on FCUs meeting the well capitalized standard. The proposal limited the amount of securities that any FCU, whether well capitalized or not, could purchase with mismatched maturities to 100% of the FCU's net worth. It also permitted FCUs not meeting the well capitalized standard to purchase private label CMRS subject to an aggregate limit of 25% of net worth, unless their regional director granted authority to purchase securities in an amount up to 50% of net worth, which is the cap for FCUs meeting the well capitalized standard.
A majority of commenters supported the Board's efforts to extend regulatory flexibility to FCUs. Other commenters felt the proposal did not provide enough relief and failed to extend similar relief to federally insured, state-chartered credit unions. One credit union trade association stated that the proposal removed clear eligibility standards for FCUs to obtain expanded authorities. It opposed the elimination of an appeals process to NCUA's Supervisory Review Committee, similar to the one through which RegFlex FCUs could appeal RegFlex designation revocations, if an FCU were not permitted to engage in the full range of flexibilities. The bank trade association stated that, although it supports efforts to reduce regulatory burdens, NCUA should not extend such regulatory relief to FCUs that are undercapitalized or represent supervisory concerns. Another commenter found that the RegFlex program under part 742 sufficiently accomplished its goals in its current form. The Board has carefully reviewed and analyzed the comment letters and describes specific comments on the NPRM below.
In the NPRM, the Board proposed to eliminate the entire charitable contributions rule, § 701.25. Section 701.25 restricts an FCU's ability to make donations. It only allows an FCU to make charitable contributions or donations to nonprofit organizations located or conducting activities in a community in which the FCU has a place of business, or to organizations that are tax exempt under § 501(c)(3) of the Internal Revenue Code and that operate primarily to promote and develop credit unions. It further requires an FCU's board of directors to approve charitable contributions based on a determination that the contributions are in the FCU's best interests and are reasonable given the FCU's size and financial condition. Under the rule, directors may establish a budget for charitable donations and authorize FCU officials to select recipients and disburse funds. The RegFlex rule, § 742.4(a)(1), exempted RegFlex FCUs from the entire charitable contributions rule. By removing § 701.25, the Board is now allowing any FCU to make donations without the prior approval of its board of directors and without regulatory restrictions as to recipients.
In the NPRM, the Board noted that, even in the absence of a charitable contributions rule, an FCU's authority to make donations is authorized by incidental powers given in the Federal Credit Union Act (Act), 12 U.S.C. 1757(17). As such, contributions must be necessary or requisite to enable the FCU to effectively carry on its business.
Two credit union trade associations, four leagues, and three credit unions supported the elimination of the charitable contributions rule. Three of these commenters maintained that the limitations on an FCU's incidental powers, the board's fiduciary duties, and the FCU Bylaws already set the appropriate standards for charitable contributions. One commenter stated that the change would eliminate a bureaucratic hurdle and enable FCUs to further their mission of helping people of modest means. The bank trade association stated that the charitable contributions rule protects the interests of members and avoids conflicts of interest and, therefore, requested that NCUA retain it. The Board believes the Act, FCU bylaws, part 721, and § 701.4 provide sufficient constraints on an FCU's ability to make charitable contributions. Accordingly, the final rule removes § 701.25 as proposed.
One credit union commenter expressed concern that FCUs would need to seek approval to make donations because NCUA did not propose to amend § 721.3 to expressly identify charitable contributions as a preapproved incidental power. Since 1979, NCUA has recognized that FCUs may make charitable contributions under the provision in the Act that authorizes an FCU “to exercise such incidental powers as shall be necessary or requisite to enable it to carry on effectively the business for which it is incorporated.” 44 FR 56691 (Oct. 2, 1979); 64 FR 19441 (Apr. 21, 1999); 12 U.S.C. 1757(17). The Board appreciates the suggestion to clarify an FCU's authority to make charitable contributions and donations in the incidental powers rule. The final rule amends § 721.3 accordingly by adding a new paragraph, derived from NCUA legal opinions, identifying this authority.
The Act permits an FCU to receive shares from nonmember public units, political subdivisions, and credit unions, subject to the limits in the nonmember deposits rule, § 701.32. 12 U.S.C. 1757(6); 12 CFR 701.32. Under paragraph (b) of § 701.32, the maximum amount of all public unit and nonmember shares that an FCU may hold cannot exceed the greater of 20% of the FCU's total shares or $1.5 million. Under paragraph (c) of § 701.32, nonmember share deposits that an FCU has accepted to meet a matching requirement for a Community Development Revolving Loan Fund loan count against the nonmember deposit limit once the FCU has repaid the loan. An FCU may request an exemption from its regional director to exceed the limit. If the regional director denies the request for an exemption, the FCU may appeal the decision to the Board. The RegFlex rule exempted RegFlex FCUs from both paragraphs (b) and (c) of § 701.32, so RegFlex FCUs have not been subject to the limit on the amount of public unit and nonmember shares.
The NPRM raised the dollar threshold on the nonmember deposit limit in § 701.32(b) to $3 million. The Board acknowledged that, by eliminating RegFlex, RegFlex FCUs would lose their blanket exemption from the nonmember deposit cap. Based on the amount of nonmember deposits held by RegFlex FCUs, however, the Board stated that the proposal provided all of the necessary flexibility and regulatory relief to all FCUs without adversely affecting any of the RegFlex FCUs that have accepted nonmember deposits in excess of the cap.
Both credit union trade associations and two leagues objected to the elimination of the RegFlex blanket exemption from the nonmember deposit rule's cap because all FCUs would now need a waiver to exceed the cap. One commenter stated that most FCUs find the waiver process, in general, to be unduly burdensome, time consuming, and, on occasion, arbitrary. One commenter characterized the removal of the exemption as an unfair and inflexible approach, and another stated that the change does not represent an easing of regulatory compliance burden. Three of these commenters generally supported raising the dollar threshold, but one of the trade associations stated it was unclear why NCUA chose the new level to be $3 million. The league commenters agreed with the $3 million threshold, suggested a higher threshold, or advocated preservation of the exemption for RegFlex institutions. One commenter suggested that NCUA eliminate the cap or, at a minimum, increase it to $5 million.
Two league commenters and one credit union supported the change to the nonmember deposit dollar threshold. One commenter stated that, although the rule would eliminate the current exemption, the proposal provided the appropriate amount of flexibility and regulatory relief to FCUs without adversely impacting RegFlex FCUs. Another commenter noted that smaller asset-sized FCUs can enjoy the opportunity to acquire an increased volume of nonmember deposits.
The bank trade association supported the proposed rule's requirement that all FCUs be subject to nonmember share limits. It objected, however, to the proposed increase of the dollar threshold from $1.5 million to $3 million, citing asset liability management and liquidity concerns that could be created for some small FCUs with such an increase. The commenter stated that small FCUs may not have the necessary plans, practices, and experience to manage such an inflow of deposits. It, therefore, recommended the rule require small FCUs taking advantage of the higher threshold of $3 million to adopt policies managing the risk associated with nonmember deposits. The commenter further stated that because NCUA's Prompt Corrective Action rule, § 702.202, specifies that the prohibition on accepting nonmember deposits is a discretionary supervisory action for NCUA, undercapitalized credit unions should be prohibited from accepting or rolling over nonmember deposits.
As the Board stated in the NPRM, nonmember shares are characteristically more volatile than core member shares. This additional volatility can pose asset liability management concerns and liquidity concerns. The Board determined it was appropriate to raise the dollar threshold to $3 million because the agency's data reveals that only four RegFlex FCUs currently exceed the limitation in § 701.32(b) of the greater of 20% of total shares or $1.5 million in nonmember deposits, and each of those FCUs holds less than $3 million. To raise the maximum dollar threshold to $5 million would create a wider gap for FCUs with lower total shares from the percentage of 20% of total shares threshold without any need for such an increase. For instance, an FCU with $7.5 million in total shares has been subject to the $1.5 million and 20% percent caps of § 701.32. Under this final rule, however, the FCU will be permitted to accept up to $3 million in nonmember deposits, representing 40% of total shares. To permit this FCU to accept up to $5 million in shares would permit the FCU to accept nonmember deposits amounting to two-thirds or over 66% of its total shares. As such, the final rule maintains the proposed adjustment to the dollar threshold in paragraph (b)(1) because it maintains the regulatory relief that RegFlex FCUs have enjoyed. Furthermore, the adjustment extends relief to FCUs, particularly those FCUs that have lower amounts of total shares, and remains attentive to safety and soundness considerations. The Board also finds it unnecessary to include a blanket prohibition for undercapitalized FCUs
The Act authorizes an FCU to purchase, hold, and dispose of property necessary or incidental to its operations. 12 U.S.C. 1757(4). Generally, the fixed assets rule provides limits on fixed asset investments, establishes occupancy and other requirements for acquired and abandoned premises, and prohibits certain transactions. 12 CFR 701.36. “Fixed assets” is defined in § 701.36(e) and includes premises. “Premises” means any office, branch office, suboffice, service center, parking lot, facility, or real estate where a credit union transacts or will transact business.
When an FCU acquires premises for future expansion and does not fully occupy the space within one year, the rule requires the FCU's board of directors to have a resolution in place by the end of that year with plans for full occupation. 12 CFR 701.36(b)(1). Additionally, the FCU must partially occupy the premises within three years, unless the FCU obtains a waiver within 30 months of acquiring the premises. 12 CFR 701.36(b)(1)-(2). RegFlex FCUs have enjoyed more flexibility by having authority to take up to six years to partially occupy unimproved land they acquired for future expansion. 12 CFR 701.36(d), 742.4(a)(3). In the NPRM, the Board proposed to amend the fixed assets rule to extend the three-year time period to six years for any FCU that acquires unimproved land.
One credit union trade association, five leagues, and two credit unions supported the proposed extension of time from three years to six years. One league noted that, while most FCUs will probably not use the expanded time frame, the flexibility will assist them in implementing building plans efficiently. Another league stated that the change provides relief to FCUs that acquired land during better economic times or rates. It noted that, under the proposed extension, FCUs will not be forced to choose between seeking a waiver or selling land because they could not meet the three-year timeline.
As noted in the NPRM's preamble and discussed in previous rulemakings, the Board recognizes that many real estate transactions are complex and time consuming, and they involve a full array of issues that an FCU must address before it is ready to occupy the premises. This is especially true in the unimproved land context with its construction-related issues. The final rule adopts the change to the fixed assets rule as proposed by permitting any FCU a longer time (up to six years, rather than only three years) to partially occupy the premises if it initially acquired the property as unimproved land.
Some of the commenters provided general comments applicable to most or all facets of the NPRM's proposed changes to the investment rule. One credit union generally supported the ability of all FCUs to invest in zero-coupon investments and CMRS, as well as to engage in borrowing repurchase transactions. Two leagues stated that, while their members were generally supportive of giving FCUs expanded investment authorities, these relatively sophisticated financial instruments require a baseline of expertise. The commenters stated that the rule should include requirements for staff to have demonstrated expertise to handle these transactions. One league argued that the proposal's well capitalized standard merely eliminates the RegFlex designation while preserving the same restrictions on eligibility. As such, the commenter urged NCUA to consider whether the current restrictions on some types of investments should be removed for more FCUs to allow flexibility in diversifying investments and to reduce reliance on the “currently limited” investments allowed under NCUA's rules. The Board maintains the standards and conditions for the various investment authorities set forth the proposed rule as discussed in the responses to specific comments below.
Under § 703.16(b), an FCU may not purchase a zero-coupon investment with a maturity date that is more than 10 years from the related settlement date. RegFlex FCUs have been exempt from the maximum maturity length of 10 years in the investment rule. 12 CFR 742.4(a)(4). To balance the risk management concerns inherent in zero-coupon investments with the flexibility previously granted to RegFlex FCUs, the Board proposed to establish the maximum maturity date of zero-coupon investments to 30 years for any FCU that meets the NPRM's well capitalized standard. The Board proposed to grandfather zero-coupon investments purchased in accordance with § 742.4(a)(4) before the effective date of the final rule, so FCUs that purchased zero-coupon investments with maturities greater than 10 years under RegFlex authority would not be required to divest those investments. The proposed rule also provided that an FCU not meeting the well capitalized standard may only purchase a zero-coupon investment with a maturity date that is no more than 10 years from the related settlement date, unless it received approval from its regional director to purchase such an investment with a greater maturity.
Three commenters objected to the proposed rule change for zero-coupon investments. One credit union trade association encouraged NCUA to eliminate the 10-year maturity limit for zero-coupon investments. One credit union stated the current rule is sufficient. Both of these commenters stated that this issue is more appropriately addressed within an FCU's investment policy. One league stated that it is more appropriate to adopt a rule specific to interest rate risk rather than remove the current flexibility afforded to certain RegFlex FCUs.
Two leagues supported the proposed changes regarding zero-coupon investments. One commenter stated that it is reasonable to require an FCU that does not meet the well capitalized standard to obtain approval from its regional director to purchase a zero-coupon investment with a maturity greater than ten years. The commenter also supported the creation of a maximum maturity date of 30 years for well capitalized FCUs. Another commenter suggested that the proposal include greater flexibility by permitting well capitalized FCUs to pursue a waiver from the 30-year maturity limit, as other FCUs would have the option to seek waivers from their 10-year maturity cap.
As the Board noted in the NPRM's preamble, the percentage loss on zero-coupon investments increases dramatically with maturity. These losses could make FCUs reluctant to sell zero-coupon investments and recognize losses during periods of liquidity stress. Therefore, consistent with safety and soundness principles, the Board does not believe it is appropriate to allow FCUs to purchase or hold zero-coupon investments with maturity dates that exceed 30 years. Accordingly, the Board adopts the final rule as proposed.
A borrowing repurchase transaction is a transaction in which an FCU agrees to sell a security to a counterparty and to
While the investment rule prohibits an FCU from purchasing a security with the proceeds from a borrowing repurchase agreement if the purchased security matures after the maturity of the borrowing repurchase agreement, NCUA adopted a limited exemption for RegFlex FCUs from the maturity restriction. 12 CFR 703.13(d)(3); 68 FR 32958, 32959 (June 3, 2003). A RegFlex FCU has been permitted to purchase securities with maturities exceeding the maturity of the borrowing repurchase transaction, commonly referred to as having mismatched maturities, provided the amount of any such purchased securities does not exceed the FCU's net worth. 12 CFR 742.4(a)(5).
In the NPRM, the Board proposed to continue this flexibility of mismatched maturities for borrowing repurchase transactions for FCUs meeting the well capitalized standard. It also proposed to grandfather borrowing repurchase transactions into which an FCU entered pursuant to its RegFlex authority before the effective date of the final rule. The Board also sought to extend relief from the maturity requirement to FCUs not meeting the well capitalized standard. Under the proposed rule, these FCUs could enter into borrowing repurchase transactions and use the proceeds to purchase investments with maturities no more than 30 days later than the transaction's term, so long as the value of the purchased investments would not exceed the related FCU's net worth. In addition, under the NPRM, FCUs not meeting the well capitalized standard would be allowed to request additional authority from their regional directors to enter transactions whereby the maturity mismatch would be greater than 30 days. Lastly, the Board sought comment on whether the final rule should specify minimum experience requirements for staff involved in the analysis and ongoing risk management of a repurchase agreement book, especially in cases where maturities of sources and uses are mismatched.
Two leagues and one credit union supported the revised standards on maturity matching for borrowing repurchase transactions. One credit union requested that the final rule permit FCUs that are well capitalized under part 702 but that do not have a CAMEL rating of 1 or 2 to enter these transactions without a maturity mismatch limitation, provided the assets pledged are guaranteed by a governmental agency or government-sponsored enterprise. One credit union trade association did not support any minimum experience requirements for staff involved in the analysis and ongoing risk management of borrowing repurchase transactions, arguing that FCUs should have the flexibility to hire qualified personnel without comparing the applicant to a predetermined set of NCUA criteria.
The final rule makes no substantive change to the proposed rule. It does clarify, however, that when an FCU purchases investments that have mismatched maturities under borrowing repurchase agreements, the aggregate or total value of purchased investments made under these conditions cannot exceed the FCU's net worth. Therefore, under the final rule, an FCU may purchase investments with maturities exceeding the maturity of the borrowing repurchase transaction if the aggregate amount of all such purchased investments does not exceed its net worth. The Board notes that the final rule does not create an exception for purchased investments that are guaranteed by a government agency or government-sponsored entity because the conditions on maturity mismatches are intended to address interest rate risk, rather than default risk. The suggested exception would not further the Board's goal. In addition, the final rule does not include experience requirements. The Board again reminds FCUs, however, that they should position themselves, through in-house or contracted expertise, to properly engage in the analysis and ongoing risk management of borrowing repurchase transactions.
Pursuant to section 107(15)(B) of the Act, a RegFlex FCU had been permitted to purchase CMRS that are not otherwise permitted by section 107(7)(E) of the Act if: (i) the security is rated in one of the two highest rating categories by at least one nationally-recognized statistical rating organization (NRSRO); (ii) the security meets the definition of mortgage related security as defined in 15 U.S.C. 78c(a)(41) and the definition of CMRS in § 703.2; (iii) the pool of loans underlying the CMRS contains more than 50 loans with no one loan representing more than 10 percent of the pool; and (iv) the FCU does not purchase an aggregate amount of CMRS in excess of 50 percent of its net worth. 12 CFR 742.4(a)(6). In the NPRM, the Board proposed to permit FCUs meeting the well capitalized standard to purchase private label CMRS under these same conditions.
The Board also proposed to permit an FCU not meeting the well capitalized standard to purchase private label CMRS under the conditions applicable to well capitalized FCUs, but it limited the aggregate amount of CMRS to 25 percent of the FCU's net worth. The NPRM permitted such an FCU to seek authorization from its regional director to purchase a greater amount of CMRS, up to 50 percent of its net worth, if it could demonstrate three consecutive years of effective CMRS portfolio management and the ability to evaluate key risk factors. The proposed rule also added a grandfather provision for private label CMRS purchased by an FCU under its RegFlex authority before the effective date of the final rule. In the NPRM, the Board sought comment on whether the conditions for purchasing CMRS should be enhanced to encourage diversity and mitigate risk.
One league and one credit union supported the changes for CMRS as proposed.One credit union trade association advocated additional authority for FCUs in this area and supported removal of limitations on CMRS that are not required by the Act. One credit union stated its particular concern with the proposal because it believes the failure of the corporate credit union system was caused by significant concentrations of private label mortgage related securities. The commenter stated that the proposed rule lacks sufficient guidance related to credit risk management. It suggested that, at a minimum, the rule require: pre-purchase credit analysis, including analysis of underlying collateral, geographic diversification, cash flows, and credit structures, as well as identification and general avoidance of subordinated tranches that represent elevated levels of credit risk in favor of senior tranches; documentation and retention of credit analyses for as long as an FCU holds the CMRS; and ongoing credit monitoring to identify emerging negative trends and potential concerns. While the Board does not incorporate these conditions in the final rule, the Board strongly believes the commenter has identified best practices to which FCUs should adhere if they are to purchase CMRS. The Board adopts the provisions regarding CMRS in the final rule as proposed.
The eligible obligations rule permits an FCU to purchase loans from any source, provided that two conditions are satisfied. 12 CFR 701.23. First, the borrower is a member of that FCU. Second, the loan is either of a type the FCU is empowered to grant or the FCU refinances the loan within 60 days of its purchase so that it meets the empowered to grant requirement. 12 CFR 701.23(b)(1)(i). The rule also permits an FCU to purchase student loans and real estate-secured loans, from any source, if the purchasing FCU grants these loans on an ongoing basis and is purchasing either type of loan to facilitate the packaging of a pool of such loans for sale or pledge in the secondary market. 12 CFR 701.23(b)(1)(iii)-(iv). An FCU may also purchase the obligations of a liquidating credit union's individual members from the liquidating credit union. 12 CFR 701.23(b)(ii). The eligible obligations rule restricts the aggregate amount of loans that an FCU may purchase to five percent of the purchasing FCU's unimpaired capital and surplus. 12 CFR 701.23(b)(3). It excludes certain types of loans from this limit, including loans purchased to facilitate a sale or pledge in the secondary market. 12 CFR 701.23(b)(3).
RegFlex FCUs have been permitted to buy loans from other federally insured credit unions without regard to whether the loans are eligible obligations of the purchasing FCU's members or the members of a liquidating credit union. 12 CFR 742.4(b). Loans purchased from a liquidating credit union, however, are subject to the cap of five percent of unimpaired capital and surplus. 12 CFR 742.4(b)(4); 66 FR 15055, 15059 (Mar. 15, 2001). RegFlex FCUs also have been able to purchase student loans and real estate-secured loans without the requirement that loans be purchased to facilitate a secondary market pool package. 12 CFR 742.4(b).
The NPRM retained the flexibility currently provided to RegFlex FCUs for FCUs meeting the well capitalized standard. The proposed rule also grandfathered all eligible obligations purchased by RegFlex FCUs before the effective date of the final rule. The proposed rule similarly amended paragraph (e) in § 723.1 to address nonmember business loans purchased under RegFlex authority or obligations purchased under proposed § 701.23(b)(2). The Board requested specific comment on whether it should extend the flexibility from the eligible obligations rule to all FCUs or establish an approval process through regional directors for FCUs not meeting the well capitalized standard.
One league supported the expansion in the eligible obligations rule. One credit union trade association recommended, at a minimum, an expansion of this authority to allow FCUs that are somewhat less than well capitalized to take advantage of the flexibility afforded to FCUs meeting the well capitalized standard. Likewise, one league and one credit union commenter urged NCUA to extend the flexibility for eligible obligations to all FCUs or provide a waiver process similar to the process for other expanded authorities. One commenter stated that eligible obligation purchases that are made after an FCU applies proper due diligence do not pose a safety and soundness issue for that FCU or the National Credit Union Share Insurance Fund. The credit union commenter also urged NCUA to expand the purchasing authority to all FCUs so they can benefit from the stabilizing effects of purchasing well-performing obligations from diverse portfolios of other federally insured credit unions. The commenter further stated that an expansion would enhance safety and soundness in two ways. First, a purchasing FCU can increase earnings by deploying excess liquidity into higher yielding, high quality assets when loan demand from its members may be low. Second, a purchasing FCU can reduce concentration risk because selling institutions have different fields of membership. The commenter also made suggestions to clarify the proposed regulatory text in § 701.23.
The final rule substantively adopts the provisions in the proposed rule pertaining to eligible obligations with two changes. It includes a provision that allows FCUs not meeting the well capitalized standard to seek authority from their regional directors to purchase obligations from other federally insured credit unions under the same conditions applicable to FCUs that do meet the well capitalized standard. The final rule also uses plain language rather than paragraph citations within § 701.23 for ease of reading.
The final rule removes part 742 from title 12 to eliminate RegFlex as the Board proposed in the NPRM. The Board noted in the preamble to the proposed rule that it would address the appeals process before NCUA's Supervisory Review Committee for RegFlex designation revocations. In a separate, contemporaneous rulemaking, the Board is amending NCUA Interpretive Ruling and Policy Statement 11-1, 76 FR 23871 (Apr. 29, 2011), to remove RegFlex appeals from the purview of the committee because RegFlex no longer exists as of the effective date of this rule.
The final rule removes the entire charitable contributions rule, § 701.25, from part 701. With the deletion of this section, an FCU will no longer be restricted by regulation to make donations only to certain recipients and will not be required to obtain prior approval from its board of directors. An FCU's authority to make donations will continue to be governed by its incidental powers authority under the Act, the fiduciary duties of its board, and its bylaws. NCUA has long recognized an FCU's authority to make charitable contributions and donations because an FCU may “exercise such incidental powers as shall be necessary or requisite to enable it to carry on effectively the business for which it is incorporated.” 44 FR 56691 (Oct. 2, 1979); 64 FR 19441 (Apr. 21, 1999); 12 U.S.C. 1757(17). Contributions, therefore, must be necessary or requisite to enable the FCU to effectively carry on its business. 12 CFR 721.2. Furthermore, FCU directors have a fiduciary duty to direct management to operate within sound business practices and the best interests of the membership under § 701.4. In addition, article XVI, section 4 of the FCU Bylaws prohibits FCU directors, committee members, officers, agents, and employees from conflicts of interest that could arise in the context of making charitable donations.
As noted, the making of charitable contributions has long been recognized by NCUA as an approved incidental power. The final rule, therefore, amends § 721.3 by adding a new paragraph (b) to identify this authority and renumbers the remaining activities in the section.
The final rule raises the dollar threshold on the nonmember deposit limit in § 701.32(b) from $1.5 million to $3 million. The maximum amount of all public unit and nonmember shares that any FCU may hold cannot exceed the greater of 20 percent of the FCU's total shares or $3 million. Unlike the former RegFlex rule, the final rule does not provide a standardized exemption from the nonmember deposit cap. Section 701.32, however, continues to permit an FCU to request from its regional director an exemption to exceed the limit on the maximum amount of nonmember deposits. 12 CFR 701.32(b)(3)-(5). If the regional director denies the request for
The final rule amends § 701.36(b)(2) to permit any FCU a six-year time frame to partially occupy the premises if the FCU acquired unimproved land for its future expansion. As in the current rule, premises are partially occupied when the FCU is using some part of the space on a full-time basis. An FCU may request a waiver from the partial occupation requirement. The amendment applies only to unimproved real property and does not apply to any other kind of premises.
In order to balance the risk management concerns discussed in the NPRM, the final rule restricts FCUs meeting the well capitalized standard from purchasing any zero-coupon investment with a maturity date greater than 30 years. It also provides that an FCU not meeting the well capitalized standard may not purchase a zero-coupon investment with a maturity date that is more than 10 years from the related settlement date, unless it has received approval from its regional director to purchase such an investment with a greater maturity. In addition, the final rule grandfathers zero-coupon investments purchased under RegFlex authority before the effective date of this rule.
FCUs considering the purchase of zero-coupon investments should be familiar with the dramatic rise in percentage loss on these investments with maturity. Only FCUs with the appropriate level of expertise positioned to measure the safety and soundness of purchasing zero-coupon investments with extended maturities should consider such investments.
Section 703.13(d)(3)(iii) of the final rule permits FCUs meeting the well capitalized standard to purchase investments with maturities exceeding the maturity of the borrowing repurchase transaction. Section 703.13(d)(3)(ii) permits FCUs not meeting the well capitalized standard to enter into borrowing repurchase transactions and use the proceeds to purchase investments with maturities no more than 30 days later than the transaction's term. Under § 703.20, these FCUs may request additional authority from their regional directors to enter transactions whereby the maturity mismatch would be greater than 30 days. The final rule also clarifies that the total value of investments that any FCU purchases through transactions with mismatched maturities cannot exceed its net worth. In addition, the final rule contains a grandfather provision for borrowing repurchase transactions into which an FCU entered under its RegFlex authority before the effective date of this rule.
The final rule, therefore, sets out three possible scenarios for borrowing repurchase transactions under § 703.13(d)(3). In the first instance, the borrowing and corresponding investment transactions must have matched maturities. In the second instance, the matched maturity requirement would not apply if an FCU buys investments that mature no more than 30 days after the maturity of the borrowing repurchase transaction and the aggregate or total value of those investments does not exceed 100 percent of the FCU's net worth. In the third instance, an FCU that meets the well capitalized standard may enter borrowing repurchase transactions with mismatched maturities greater than 30 days if the total value of investments purchased through transactions with mismatched maturities does not exceed 100 percent of the FCU's net worth.
The final rule removes the prohibition in § 703.16 on the purchase of private label CMRS. The final rule permits an FCU that meets the well capitalized standard to purchase CMRS that are not otherwise permitted by section 107(7)(E) of the Act if: (i) the security is rated in one of the two highest rating categories by at least one NRSRO;
Finally, the final rule adds a grandfather provision to § 703.18 for private label CMRS purchased by an FCU under its RegFlex authority before the effective date of this rule. As such, an FCU that does not meet the well capitalized standard, but which holds private label CMRS in excess of 25% of its net worth on the effective date of this rule, is not required to divest those holdings on its books. The FCU, however, cannot make additional purchases of CMRS while its aggregate CMRS holdings exceed 25% of its net worth, without the approval from the appropriate regional director under § 703.20.
The Board notes again that the authority to purchase private label CMRS, as with all of the flexibilities in the final rule, is not appropriate for every FCU. Selection of CMRS consistent with safety and soundness requires careful analysis of the underlying commercial mortgages and corresponding collateral, as well as analysis of the cash flow, credit structure, and market performance of the security.
As with all investments, FCUs must understand and be capable of managing the risks associated with CMRS before purchasing them. The investment rule's § 703.3 requires an FCU's board of directors to develop investment policies that address credit, liquidity, interest rate, and concentration risks. 12 CFR 703.3. The policy must also identify the characteristics of any investments that are suitable for the FCU. FCUs that purchase CMRS must develop sound risk management policies and construct limits that represent the FCU board's risk tolerance. If necessary, NCUA may require an FCU to divest its investments or assets for substantive safety and soundness reasons, on a case-by-case basis.
The final rule renumbers § 701.23 and, under paragraph (b)(2), permits FCUs that meet the well capitalized standard to buy loans from other federally insured credit unions without regard to whether the loans are eligible obligations of the purchasing FCU's members or the members of a liquidating credit union. The final rule
In addition, the final rule permits FCUs that do not meet the well capitalized standard to request authority from their regional directors to engage in this activity through a written request similar to the process created in paragraph (b) of § 703.20.
In issuing the proposed rule, NCUA inadvertently omitted changes to RegFlex references in its rule setting the permissible deductible for fidelity bond coverage. 12 CFR 713.6. That rule establishes a formula for calculating the maximum allowable deductible based on asset size with a cap of $200,000, but permits RegFlex FCUs a higher maximum deductible of up to $1 million. 12 CFR 713.6(a)(1), (c). With the elimination of RegFlex, the Board is issuing an interim final rule to amend the fidelity bond rule so that it is consistent with the other subject-specific rules discussed in this preamble. The interim final rule changes the applicable benchmark for increased deductible limits in § 713.6 from RegFlex FCUs to FCUs meeting the same well capitalized standard used in the other rules impacted by the elimination of RegFlex.
The amendments track those that the Board makes in the final rule, as well as the § 713.6 provisions the Board adopted in 2005 for FCUs that automatically qualified for a RegFlex designation. 70 FR 61713 (Oct. 26, 2005)
The interim final rule permits a maximum deductible for fidelity bond coverage of $1 million if the FCU has: (1) Received a composite CAMEL rating of “1” or “2” during its last two full examinations and (2) maintained a “well capitalized” net worth classification for the immediately preceding six quarters or has remained “well capitalized” for the immediately preceding six quarters after applying the applicable RBNW requirement.
Once a year, an FCU meeting the interim final rule's well capitalized standard must review its continued eligibility for a higher deductible under the rule, which is the same approach applied by the Board when it adopted the fidelity bond RegFlex provisions in 2005.
The Board is adopting this rulemaking as an interim final rule because it meets the good cause exception to the procedures under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3). Notice and public procedures are impracticable and contrary to the public interest in this matter because the final rule eliminates RegFlex. To maintain cross-references to RegFlex in the fidelity bond coverage rule would cause confusion in implementation by FCUs, as well as undue and untimely execution of NCUA's functions in monitoring compliance with § 713.6. The interim final rule complements the final rule, and it is appropriate for the Board to synchronize its adoption of all of the rule changes made in this document. The Board finds these reasons are good cause to dispense with the APA's notice and comment period and the procedures in NCUA's Interpretive Ruling and Policy Statement 87-2. 5 U.S.C. 553(b)(3)(B); 52 FR 35213 (Sept. 18, 1987), as amended by 68 FR 31949 (May 29, 2003). The interim final rule has an effective date 30 days after publication in the
In a further effort to comply with the Plain Writing Act of 2010 (Pub. L. 111-274), the Board includes the following table to assist readers by distinguishing the authorities for FCUs that meet the well capitalized standard and FCUs that do not. We are providing this table for your reference only. Please refer to regulatory text, as well as the preambles for the NPRM and the final rule, for specific information.
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small entities (primarily those under ten million dollars in assets). This rule reduces compliance burden and extends regulatory relief while maintaining existing safety and soundness standards. NCUA has determined and certifies that this rule will not have a significant economic impact on a substantial number of small credit unions.
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden. 44 U.S.C. 3507(d); 5 CFR part 1320. For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. As required, NCUA has applied to the Office of Management and Budget (OMB) for approval of the information collection requirement described below.
The final rule contains an information collection in the form of a voluntary written request for additional authorities from a regional director under proposed § 703.20 and § 701.23(h). An FCU that does not meet the well capitalized standard may submit a written request to its regional director to request expanded authority above any or all of the following provisions in the rule: (1) The borrowing repurchase transaction maximum maturity mismatch of 30 days under proposed § 703.13(d)(3)(ii), (2) the zero-coupon investment 10-year maximum maturity under proposed § 703.14(i), up to a maturity of no more than 30 years, (3) the aggregate commercial mortgage related security limit of 25% of net worth under proposed § 703.14(j), up to no more than 50% of net worth, and (4) the membership and pooling limitations in § 701.23(b)(1) when purchasing loans under § 701.23(b)(2). An FCU meets the well capitalized standard if the FCU has received a composite CAMEL rating of “1” or “2” during its last two full examinations and (1) has maintained a “well capitalized” net worth classification for the immediately preceding six quarters, or (2) has remained “well capitalized” for the immediately preceding six quarters after applying the applicable RBNW requirement. In the proposed rule, the Board estimated 1,770 FCUs may apply for an additional authority. The cumulative total annual paperwork burden is estimated to be approximately 1,770 hours.
OMB is currently reviewing NCUA's submission and NCUA will publish the OMB number assigned to this rulemaking once issued.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. This final rule 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. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedure Act. 5 U.S.C. 551. The Office of Management and Budget has determined that this rule is not a major rule for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.
NCUA has determined that this final IRPS will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).
Credit unions.
Credit unions, Investments.
Credit unions, Insurance, Reporting and recordkeeping requirements.
Credit unions.
Credit, Credit unions, Reporting and recordkeeping requirements.
Credit unions, reporting and recordkeeping requirements.
By the National Credit Union Administration Board on May 24, 2012.
For the reasons discussed above, NCUA amends 12 CFR parts 701, 703, 713, 721, 723, and 742 as follows:
12 U.S.C. 1752(5), 1755, 1756, 1757, 1759, 1761a, 1761b, 1766, 1767, 1782, 1784, 1787, and 1789. Section 701.6 is also authorized by 31 U.S.C. 3717. Section 701.31 is also authorized by 15 U.S.C. 1601
The additions read as follows:
(b) * * *
(2)
(i)
(A) Loans the purchasing credit union is empowered to grant; or
(B) Loans refinanced with the consent of the borrowers, within 60 days after they are purchased, so that they are loans the purchasing credit union is empowered to grant;
(ii)
(iii)
(iv)
(5)
(h)
(i) A copy of the credit union's purchase policy;
(ii) The types of eligible obligations under paragraph (b)(2) of this section that the credit union seeks to purchase;
(iii) An explanation of the need for additional authority; and
(iv) An analysis of the credit union's prior experience with the purchase of eligible obligations.
(2)
(3)
The revision reads as follows:
(b) * * *
(2) When a federal credit union acquires premises for future expansion, it must partially occupy the premises within a reasonable period, not to exceed three years, unless the credit union has acquired unimproved real property for future expansion. If a federal credit union has acquired unimproved real property to develop for future expansion, it must partially occupy the premises within a reasonable period, not to exceed six years. Premises are partially occupied when the credit union is using some part of the space on a full-time basis. The NCUA may waive this partial occupation requirement in writing upon written request. The request must be made within 30 months after the property is acquired.
12 U.S.C. 1757(7), 1757(8), 1757(15).
(d) * * *
(3) The investments referenced in paragraph (d)(2) of this section must mature under the following conditions:
(i) No later than the maturity of the borrowing repurchase transaction;
(ii) No later than thirty days after the borrowing repurchase transaction, unless authorized under § 703.20, provided the value of all investments purchased with maturities later than borrowing repurchase transactions does not exceed 100 percent of the federal credit union's net worth; or
(iii) At any time later than the maturity of the borrowing repurchase transaction, provided the value of all investments purchased with maturities later than borrowing repurchase transactions does not exceed 100 percent of the federal credit union's net worth and the credit union received a composite CAMEL rating of “1” or “2” for the last two (2) full examinations and maintained a net worth classification of “well capitalized” under part 702 of this chapter for the six (6) immediately preceding quarters or, if subject to a risk-based net worth (RBNW) requirement under part 702 of this chapter, has remained “well capitalized” for the six (6) immediately preceding quarters after applying the applicable RBNW requirement.
(i)
(j)
(1) The CMRS is rated in one of the two highest rating categories by at least one nationally-recognized statistical rating organization;
(2) The CMRS meets the definition of mortgage related security as defined in 15 U.S.C. 78c(a)(41) and the definition of commercial mortgage related security as defined in § 703.2 of this part;
(3) The CMRS's underlying pool of loans contains more than 50 loans with no one loan representing more than 10 percent of the pool; and
(4) The aggregate amount of private label CMRS purchased by the federal credit union does not exceed 25 percent of its net worth, unless authorized under § 703.20 or as otherwise provided in this subparagraph. A federal credit union that has received a composite CAMEL rating of “1” or “2” for the last two (2) full examinations and maintained a net worth classification of “well capitalized” under part 702 of this chapter for the six (6) immediately preceding quarters or, if subject to a risk-based net worth (RBNW) requirement under part 702 of this chapter, has remained “well capitalized” for the six (6) immediately preceding quarters after applying the applicable RBNW requirement, may hold private label CMRS in an aggregate amount not to exceed 50% of its net worth.
(b) A federal credit union may hold a zero-coupon investment with a maturity greater than 10 years, a borrowing repurchase transaction in which the investment matures at any time later than the maturity of the borrowing, or CMRS that cause the credit union's aggregate amount of CMRS from issuers other than government-sponsored enterprises to exceed 25% of its net worth, in each case if it purchased the investment or entered the transaction under the Regulatory Flexibility Program before July 2, 2012.
(a)
(1) Borrowing repurchase transaction maximum maturity mismatch of 30 days under § 703.13(d)(3)(ii).
(2) Zero-coupon investment 10-year maximum maturity under § 703.14(i), up to a maturity of no more than 30 years.
(3) CMRS aggregate limit of 25% of net worth under § 703.14(j), up to no more than 50% of net worth. To obtain approval for additional authority, the federal credit union must demonstrate three consecutive years of effective CMRS portfolio management and the ability to evaluate key risk factors.
(b)
(1) A copy of the credit union's investment policy;
(2) The higher limit sought;
(3) An explanation of the need for additional authority;
(4) Documentation supporting the credit union's ability to manage the investment or activity; and
(5) An analysis of the credit union's prior experience with the investment or activity.
(c)
(d)
12 U.S.C. 1761a, 1761b, 1766(a), 1766(h), 1789(a)(11).
(a)(1) The maximum amount of allowable deductible is computed based on a federal credit union's asset size and capital level, as follows:
(c) A federal credit union that has received a composite CAMEL rating of “1” or “2” for the last two (2) full examinations and maintained a net worth classification of “well capitalized” under part 702 of this chapter for the six (6) immediately preceding quarters or, if subject to a risk-based net worth (RBNW) requirement under part 702 of this chapter, has remained “well capitalized” for the six (6) immediately preceding quarters after applying the applicable RBNW requirement is eligible to qualify for a deductible in excess of $200,000. The credit union's eligibility is determined based on it having assets in excess of $1 million as reflected in its most recent year-end 5300 call report. A federal credit union that previously qualified for a deductible in excess of $200,000, but that subsequently fails to qualify based on its most recent year-end 5300 call report because either its assets have decreased or it no longer meets the net worth requirements of this paragraph or fails to meet the CAMEL rating requirements of this paragraph as determined by its most recent examination report, must obtain the coverage otherwise required by paragraph (b) of this section within 30 days of filing its year-end call report and must notify the appropriate NCUA regional office in writing of its changed status and confirm that it has obtained the required coverage.
12 U.S.C. 1757(17), 1766, 1789.
(b)
12 U.S.C. 1756, 1757, 1757A, 1766, 1785, 1789.
(e)
National Credit Union Administration (NCUA).
Final rule; limited extension of compliance date for certain requirements.
NCUA is amending its regulations to require federally insured credit unions (FICUs) to maintain written policies that address the management of loan workout arrangements and nonaccrual policies for loans, consistent with industry practice or Federal Financial Institutions Examination Council (FFIEC) requirements. The final rule includes guidelines, set forth as an interpretive ruling and policy statement (IRPS) and incorporated as an appendix to the rule, that will assist FICUs in complying with the rule, including the regulatory reporting of troubled debt restructured loans (TDR loans or TDRs) in FICU Call Reports.
The effective date for this rule is July 2, 2012. The compliance date is extended to October 1, 2012 for the rule's requirements to adopt written policies addressing loan workouts and nonaccrual practices and to December 31, 2012 to collect nonaccrual status data.
Director of Supervision Matthew J. Biliouris and Chief Accountant Karen Kelbly, Office of Examination and Insurance at the above address or telephone: (703) 518-6360.
In order to better serve members experiencing financial difficulties over the last several years and improve collectability, FICUs worked with members and offered sensible workout loans, including programs offered through the Obama Administration's “Making Home Affordable Program”.
In the NPRM, the Board acknowledged the need to effectively balance appropriate loan workout programs with safety and soundness considerations. Such considerations can include the inability to identify deterioration in the quality of the loan portfolio and delayed loss recognition, in light of the high degree of relapse into past due status. The Board issued the NPRM with the goal of granting certain regulatory relief, instituting some countervailing controls, and clarifying regulatory expectations.
In the NPRM, the Board proposed four regulatory changes through an amendment to § 741.3 and the addition of proposed Appendix C to part 741. First, the NPRM proposed a requirement that FICUs have written policies addressing loan workouts and nonaccrual practices under § 741.3. Second, the NPRM proposed to standardize an industry-wide practice by requiring that FICUs cease to accrue interest on all loans at 90 days or more past due, subject to a few exceptions. Third, the NPRM proposed that FICUs maintain member business workout loans in a nonaccrual status until the FICU receives 6 consecutive payments under the modified terms. Finally, the NPRM proposed that FICUs calculate and report TDR loan delinquency based on restructured contract terms rather than the original loan terms. To that end, the Board noted that NCUA would modify the Call Report to reduce data collection to TDRs as defined by GAAP.
The Board proposed that the final rule would go into effect 120 days after it was published in the
In response to the NPRM, the Board received many varied comments on how it should approach implementation of the rule, appendix and NCUA's modification of the Call Report. One trade group urged NCUA to move forward with Call Report changes as soon as it adopted the rule, while a FICU supported the Call Report reporting requirements to become effective no later than December 31, 2012. One FICU commenter stated that the quick adoption of the proposed changes would have a profound effect on FICU personnel hours needed to perform the TDR reporting requirement and, therefore, requested implementation of the final rule by the end of the 2nd quarter of 2012. Likewise, another FICU stated that the December 31, 2012 report date would not give FICUs enough time to purchase software and perform a six-month due diligence review. The FICU noted that, while a new system can effectively capture new loan history, it will have serious challenges with systematically capturing existing loan history retrospectively for data previously tracked manually. The commenter
One FICU and one league expressed concern that the proposed 120 days compliance timeframe would not be enough time if a FICU has to modify systems. The FICU stated there may be disparities in how various computer systems handle the 90-day nonaccrual policy, as well as the handling of accrued interest, reprogramming, and testing. The commenter suggested that NCUA set a firm, but reasonable, date for compliance. Several commenters raised concerns about the ability of small credit unions to revise or implement changes to their lending policies and systems. Four leagues requested that small credit unions be given extra time or transition period beyond the proposed 120 days. One league suggested that NCUA permit compliance within 120 days, but not require compliance for at least 180 days to accommodate small credit unions. Similarly, one trade group, on behalf of FICUs that are able to comply with the changes, urged NCUA to adopt the rule and make it effective as soon as possible. Yet the trade group also asked for additional time for smaller institutions to comply with the final rule. One FICU asked NCUA to adopt the rule as soon as possible with a 180-day transition period for implementation. One league requested a twelve-month implementation period.
After reviewing the various approaches suggested by the commenters, the Board has decided to make one provision of the final rule effective within 30 days of publication in the
The NPRM's comment period ended on March 2, 2012. NCUA received forty-five comment letters on the NPRM: thirty from FICUs, two from trade associations representing credit unions, ten from state credit union leagues, one from an accounting firm, one from an organization representing state credit union regulators, and one from a non-profit policy organization. Of the forty-five comments received, thirteen commenters supported the rulemaking generally, while thirty-one commenters offered some support for the rulemaking but objected to certain provisions or requested substantive revisions. One commenter questioned the purpose of the proposed rule. For the reasons discussed below, the Board adopts the amendments almost exactly as it proposed but, as requested by many commenters, provides some clarifications and excludes the proposed requirement that FICUs adopt aggregate limits in their loan workout and nonaccrual policies tied to net worth.
Thirteen FICUs, three leagues and the accounting firm supported the proposed rule's requirement that FICUs have a written loan workout policy combined with associated monitoring and controls. Most of these commenters stressed, however, that regulators must not review these policies from a standardized approach under the supervisory process. They urged regulators to afford a FICU an appropriate degree of flexibility based on the individuality of that FICU and the composition of its field of membership.
They argued that each loan modification should stand on its own merits, and that a FICU should be able to modify a loan if it is in the long term best interests of the member and the FICU without a “one size fits all” approach in the guidelines. One trade group and one league stated that, while FICUs should maintain loan workout policies, examiners should not expect a separate policy on TDRs. These commenters also stated that examiners should recognize that loan workout policies and practices must be commensurate with a FICU's size and complexity. One league requested that NCUA provide, at a minimum, an outline with suggestions of specific areas that examiners will expect to see addressed in policies. It also suggested that any requirements for a policy allow room for an individual's particular circumstance. In contrast, one industry trade group opposed a requirement that FICUs adopt loan workout or nonaccrual policies and advocated that NCUA issue guidance rather than a rule. It noted that many FICUs already engage in such a practice and already have invested in implementing software.
The Board continues to believe it is necessary to require a written loan workout policy. Because NCUA is relaxing its previous directives on past due calculations for TDRs and modifying the related Call Report data collections to reduce regulatory burden, the Board believes countervailing controls are necessary. It finds the final rule's requirement that FICUs adopt written loan workout and nonaccrual policies adequately addresses NCUA's supervisory interests. Furthermore, the Board notes the proposed IRPS clearly stated that a FICU's loan workout policy and practices should be “commensurate with each credit union's size and complexity,” in line with its broader risk mitigation strategies. 77 FR at 4934. By taking the approach in the NPRM that FICU management must design policies appropriate for their institutions, rather than setting forth “bright line” regulatory requirements or otherwise placing defined parameters on FICU policies, the Board acknowledges it is not appropriate to take a one-size fits all approach. As such, the final rule and IRPS continue to give a FICU's management the ability to establish institution-appropriate policies. In addition, the Board commits to providing NCUA's examiners with appropriate guidance for evaluating whether loan modifications made under a FICU's policy improves collectability.
Most commenters objected to the requirement that loan workout policies establish particular limits or benchmarks. Four commenters stated that the imposition of aggregate limits is unnecessary and could result in greater risk to FICUs by preventing them from making sound decisions that could result in future collectability. One commenter stated that setting aggregate limits could create the unintended consequence of a FICU treating members differently if the FICU approaches any such regulatory limit. Other commenters echoed similar concerns, stating that loan modifications should always be considered when they are in the best interests of the lender and the borrower, but that FICUs need flexibility in the current economic
The Board carefully considered the substantial comments on the NPRM's requirement that a FICU's loan workout policy include aggregate program limits set to a percentage of its net worth and agrees with the commenters that the proposed requirement could prevent a FICU from appropriately mitigating risk and assisting its members. 77 FR at 4930, 4934. The final IRPS does not include a requirement to place aggregate limits on a loan workout program as the Board proposed in the NPRM. As discussed in greater detail in Section III, NCUA will focus on a FICU's restructuring practices and whether its efforts have demonstrated an improvement in collectability of TDRs.
Two commenters suggested that, instead of a specified aggregate limit, the rule require FICU management to provide enhanced reporting on TDR activity to the FICU's board of directors. Another commenter suggested mandatory reporting to the FICU board on a regular basis. The Board agrees with these suggestions and has incorporated enhanced reporting requirements in the final rule. One commenter suggested continued reporting in Call Reports, including the number of times a loan has been modified in a 12-month period. The Board will consider this suggestion as it moves forward with its modifications to the Call Report. One commenter stated that ensuring proper documentation supporting a TDR and the borrower's ability to comply with the new terms best addresses concerns that a FICU is masking true performance and the past due status of its portfolio. The Board agrees with the commenter. As discussed in Section III, the final IRPS addresses the need for proper documentation and effective restructuring practices, preventing delayed loss recognition.
One FICU specifically commented on the proposal's requirement to limit the number of times a loan workout may be provided to a member over a period of time. The FICU stated that, while such a limit may eliminate the issue of masking problem loans, it also creates obstacles when there are legitimate reasons for multiple workouts. For example, as state and local governments and school districts have restricted spending, members endured layoffs and rounds of wage and hours cuts. As they have had to adjust their own budgets, many have asked their lender FICUs to revise terms of their workout loans. If a FICU's policy limits the number of times a workout loan can be modified or changed, these members will be adversely affected for no reason other than policy. Therefore, the commenter recommended that the rule be changed to allow workout loans to be modified any time a FICU can legitimately identify a reasonable change in the member's economic circumstances (i.e., income and other documentation should be required prior to making a change to a workout loan). The proposed IRPS in the NPRM includes a requirement that FICUs define eligibility requirements, including limits on the number of times an individual loan may be restructured, but these decisions as to limits are left to the discretion of the FICU when establishing its written policy. “Loan workout arrangements should consider and balance the best interests of both the borrower and the credit union.” 77 FR at 4934. The Board expects a FICU to evaluate the changed circumstances of an individual borrower with the need to improve collectability for the profitable operation of the institution. It is the FICU's responsibility to craft loan workout policies that strike that balance. NCUA will then measure the success of the policy based on the FICU's ability to collect TDRs. The final IRPS, therefore, retains the requirement to establish eligibility requirements as proposed in the NPRM.
Four FICUs and two leagues supported the proposed requirement that FICUs maintain nonaccrual policies that address the discontinuance of interest accrual for loans past due by 90 days or more and the requirements for returning such loans, including MBLs, to accrual status. The commenters noted that the proposed nonaccrual policy has long been the practice of FICUs and is supported by current institution interest management systems, so it would not present additional unwarranted work for FICUs. In addition, an accounting firm and two FICUs found the proposal consistent with industry practice and FFIEC requirements. They supported the proposed rule's effort to formalize the practice of placing loans on nonaccrual status when they are 90 days past due. One league argued that compliance with the proposal would require FICUs to change loan tracking systems, thereby incurring significant programming costs. The final rule and IRPS retain the requirement for a written policy addressing nonaccrual practices as proposed in the NPRM, with a few clarifications as discussed below.
One FICU objected to a blanket requirement that interest may not accrue on loans that are 90 days or more past due. The commenter stated that if a loan is performing at a level agreed to by the FICU and debtor, and it can be reasonably demonstrated that full recovery of the balance owed is likely, continuing to accrue interest due is appropriate and should be allowed. The commenter incorrectly characterized the requirement as a blanket prohibition. The proposed IRPS states that a FICU may not accrue interest on a loan in default for a period of 90 days or more “unless the loan is both
One FICU expressed concern that the proposal places an undue burden on individual small accounts and requested that the final rule exclude accounts under $25,000 from the nonaccrual policy. The commenter also suggested that NCUA consider using a more individualized index to determine a nonaccrual amount based on the total TDR classified loan balance. The commenter contended this approach would take far less time to calculate, and be more accurate, than under the current process. The Board does not agree with the commenter's rationale. The Board believes that a standard policy applicable to all loans in nonaccrual status, other than typically riskier and higher-dollar business loans, ensures consistency as the policy is employed by FICUs and reviewed by examiners.
One industry trade group did not support a requirement that FICUs must adopt nonaccrual procedures because they are not required by GAAP or the Federal Credit Union Act. This commenter agreed, however, that the proposed IRPS' restoration to accrual
One FICU and one league stated there is great disparity in FICUs' computer systems in dealing with the 90-day policy, specifically that some FICUs time the policy to 90 days while others time the policy to 91 or more days. The FICU commenter noted a difference in practice as to whether accrued interest is reversed when it goes into nonaccrual status or if there actually is no additional interest accrued to the general ledger prospectively. The final IRPS clarifies that the nonaccrual policy applies when the loan is 90 days or more past due. In response to the FICU commenter, the final IRPS also clarifies that when accrued interest is reversed, the reversed interest cannot be subsequently restored but can only be recognized as income if it is collected in cash or cash equivalents, and that there is no additional accrual until restoral to accrual conditions are met. This approach is consistent both with GAAP principles governing interest recognition on loans and longstanding banking industry practice.
One league requested that the final rule clarify that placing a loan on nonaccrual status does not change the loan agreement or the obligations between the borrower and the FICU, unless and until the parties reach express agreement on modifying the original loan terms. The commenter expressed concern that the final rule will be perceived as forgiveness of interest or principal or any type of right to a modification conferred to the borrower. To address this concern, the final IRPS includes a footnote to make clear that the accounting procedure to place a loan on nonaccrual status has no impact on the borrower's contractual obligation to the FICU.
Thirteen FICUs and eight leagues stated they saw no justification for treating MBLs differently than consumer/residential loans. They objected to the proposal's continuation of the current requirement that MBLs remain in nonaccrual status until a FICU receives six consecutive payments under modified loan terms. One commenter questioned the application of the proposal to all MBLs given that not all MBLs are commercial real estate loans. Two FICUs stated that this provision contradicts GAAP. Two commenters misunderstood the Board's remedy to past due reporting of all loans, including MBLs, and argued that the proposal's treatment of MBLs will artificially inflate delinquency. The differentiation the rule makes between MBLs and other loans regards provisions for restoration to accrual status, not delinquency reporting. Past due reporting will now be consistent with loan contract terms for all loans including MBLs. One commenter stated that, in general, MBL portfolios are comprised of a pool of individually unique loans with different collateral terms and repayment capabilities based on the financial situation and creditworthiness of the borrower/guarantor. As such, the commenter felt it was inappropriate to establish a six-month standard that would uniformly apply to a pool of individually unique loans. The commenter argued that the determination to place an MBL back into accrual status should be based on the individual financial circumstances of the borrower rather than an arbitrary period of time. One industry trade group also strongly urged NCUA to provide consistent relief for consumer loan and MBL workouts. It stated that the proposal perpetuates an unnecessary obstacle for FICUs to accommodate business members. Another trade group opposed the proposed treatment of MBLs because it is not required by the Federal Credit Union Act or GAAP. One FICU, six leagues, and one trade group stated that the tracking of MBLs as proposed would continue the burden of manually tracking these loans, thus imposing an additional barrier to making MBLs.
The Board considered the commenters' concerns but retained the proposed provisions for the restoration of MBL workout loans to accrual status in the final rule. In drafting the NPRM, NCUA weighed requiring identical treatment of both consumer and MBL workouts, i.e., the FICU would need to demonstrate a period of member repayment performance of six consecutive payments before the return to accrual status. In the interest of providing FICUs reduced burden without undue increased supervisory risk, the Board limited the more stringent requirement to only MBL workout loans. The Board's decision to retain the NPRM's proposed requirements for restoring MBL workout loans to accrual status is threefold: (1) The principle forming the basis for the provision is found in GAAP; (2) NCUA has previously joined the other federal regulators in advancing this provision in multiple interagency policy issuances, and (3) the requirement is a longstanding accepted banking practice.
One commenter encouraged NCUA to specifically define “consecutive payment” or give FICUs the authority to define the term in loan workout policies. Similarly, another FICU suggested that a payment made within a 30-day window of the due date (i.e., no late payments) be considered consecutive. This commenter also asked for clarification on what constitutes a payment for this purpose (e.g., principal and interest, principal only, or interest only) to ensure consistent reporting among FICUs. To clarify, a FICU is required to use the Cash Basis method of income recognition in GAAP until the borrower makes six consecutive timely payments of
One FICU, while agreeing with the proposal's requirement for maintaining certain MBLs in nonaccrual status for safety and soundness reasons, objected to extending the policy to multi-family residential mortgages. The commenter suggested that loans secured by 1-4 family residential properties, which fall into NCUA's MBL definition for other purposes, follow the proposal's non-MBL requirements for restoration to accrual status.
One FICU offered a slight modification to the proposed rule by expanding it to “greater than 90 days and/or 3 months past due.” It argued that many FICUs currently label internal reports as “90 day,” but upon a closer analysis of the actual technical format of FICUs' core processors, some FICUs would change the label to “3 months.” The final rule and IRPS maintain the uniform standard of 90 days or more.
One FICU requested clarification that MBL workout loans on nonaccrual
One FICU requested that NCUA clarify its “broad” statement in the guidance that “in no event should the credit union authorize additional advances to finance unpaid interest and fees,” or eliminate the language altogether. The commenter stated that a FICU could interpret this language to suggest that the payment of a third-party fee could not be added to the collectible loan balance when attempting to recover losses. The commenter stated that its ability to capitalize interest at the point of restructure is an important tool in providing solutions to troubled borrowers. By mandating the acceptance of greater losses, NCUA would be inadvertently increasing risk in the area of safety and soundness, and possibly eliminating a viable member solution by ultimately creating too great a loss. The Board agrees such third-party fees should not hinder sound restructure decisions. Accordingly, the final IRPS includes new language to clarify that, while a FICU cannot make additional advances to the borrower to finance unpaid interest and credit union fees, it may make advances to cover third-party fees exclusive of credit union commissions, such as forced place insurance or property taxes.
Thirteen FICUs, an accounting firm, a non-profit consumer advocate, the state supervisory organization, eight leagues, and two industry trade groups supported the elimination of the current requirement to track and report TDRs as delinquent until six consecutive payments. Several commenters noted the change is a needed improvement, as the current reporting requirement has been problematic for many FICUs and an obstacle to helping members. The consumer advocate stated that by moving to more commonsense reporting, the proposal eliminates a disincentive for a FICU to consider TDRs, which in turn will result in fewer foreclosures. One FICU commenter also stated that the current requirements have been quite cumbersome and contrary in purpose to the FICU's efforts to keep members in their homes and avoid unnecessary foreclosure actions.
Several commenters believed that NCUA should enable FICUs to perform appropriate loan restructurings without a reporting treatment that has a chilling effect on this essential business decision during a period of economic downturn, particularly in hard hit states. Two commenters stated that FICUs overstate their true delinquencies under the current reporting process. One commenter stated that if institutions follow sound workout loan policies in which the borrower has a better capability and willingness to repay, then the TDR should be treated as performing under the new terms of the loan agreement. To pretend a loan is delinquent for six months based on the original past due date distorts the true delinquency of loans in the portfolio. One commenter noted that the overstatement of delinquencies causes unnecessary concern with counterparties and creates an “apples to oranges” comparison with other financial institutions because banks do not report TDRs as delinquent.
In support of the proposal, one FICU and one league noted that FICUs have developed elaborate tracking systems. They stated, however, that dual reporting systems have resulted in different financial reporting for internal and audited financial statements from that used in Call Reports. These differences have resulted in confusion. One of these commenters suggested that the new guidance caution FICUs that, when modifying loans and removing them from delinquency status, documentation of the borrower's ability to pay under the modified terms should include a thorough analysis of recent past payment performance with strong consideration of the immediately preceding three months. This commenter suggested that the guidance should limit to two the number of times during a 12-month period that a loan may be formally modified with a reset of the delinquency counters. This limitation would allow for tracking (without dual reporting) and prevent FICUs from masking true delinquency through continuous modifications. The commenter stated that data tracking should focus on: (1) Current levels of delinquency under restructured loan terms; (2) number and dollar amount of new TDRs modified during the quarter/year; (3) number and amount of current TDRs in the portfolio and reserves in the ALLL for TDRs; and (4) number and dollar amount of TDRs currently in the portfolio that have been formally restructured where the delinquency counters have re-set more than once during the last 12-month period to identify loans that have been rolled. The Board will consider these suggestions when it modifies the Call Report.
One FICU recommended that the final rule impose stricter monitoring and reporting of TDRs. It offered one example, which is a requirement for FICUs to track and report TDRs that are 30 days delinquent under the restructured terms.
Many commenters noted confusion in the industry and among examination staff about what makes a modified loan a TDR. Commenters suggested that NCUA refrain from using “workout loan” and “TDR” interchangeably, stating that all workout loans are not TDRs. They recommended that the proposal be restricted to TDRs to avoid confusion. Another commenter requested that, if the term “workouts” has any applicability in the final rule, a definition should clarify the materiality or significance of the loan term changes before the loan is deemed a “workout.” Two commenters stated that NCUA's definition of “TDR” is not consistent with FASB and suggested that NCUA review FASB Accounting Standards Update No. 2011-02, “A Creditor's Determination of Whether a Restructuring Is a Troubled Debt Restructuring” for clarification. One FICU and a league asked NCUA to consider detailed standards for FICUs and examiners to determine which loan modifications qualify as TDRs. Similarly, one FICU noted that the proposal shifts documentation requirements from TDRs to workout loans. It further noted that GAAP allows for some workout loans to be immaterial and non-reportable as TDRs if they satisfy “insignificant” criteria. The commenter, therefore, suggested that the rule apply only to TDRs and not to workout loans that do not meet the materiality component of GAAP. The Board plans to direct staff to develop supervisory guidance to examiners that will incorporate current agency regulatory and examination approaches and address many of these areas that have caused confusion in implementation. Staff will consider commenters concerns in drafting the supervisory guidance. The supervisory guidance will be provided to the credit union industry as well. However, the Board has determined the final rule language will continue to incorporate both the term “TDR” and the broader term “workout” in the final rule, both of which are defined in the IRPS glossary.
Three leagues, one trade group, and two FICUs objected to the proposal's statement “that in an economic
Two leagues and one trade group requested that the final rule include additional guidance, consistent with GAAP, on impairment testing and recognition requirements. Impairment testing is beyond the scope of this rulemaking, the Board refers to IRPS 02-1, “Allowance for Loan and Lease Losses Methodologies and Documentation for Federally Insured Credit Unions,” and NCUA's Accounting Bulletin No. 06-01 (December 2006) that transmits the 2006 Interagency ALLL Policy Statement for further information.
The final rule amends § 741.3(b)(2) to require FICUs to adopt policies that govern loan workout arrangements and nonaccrual practices. The rule specifically requires that a FICU's written nonaccrual standards include the discontinuance of interest accrual on loans that are past due by 90 days or more and requirements for returning such loans, including MBLs workouts, to accrual status.
To set NCUA's supervisory expectations and assist FICUs in complying with the amendments to § 741.3(b)(2), the final rule includes an appendix to Part 741. The appendix thoroughly addresses the loan workout account management and reporting standards FICUs must implement in order to comply with the rule. It also explains how FICUs report their data collections related to TDRs on Call Reports. The contents of the appendix are described in detail below.
The Board recognizes loan workouts can be used to help borrowers overcome temporary financial difficulties, such as loss of job, medical emergency, or change in family circumstances like loss of a family member. The Board further acknowledges that the lack of a sound workout policy can mask the true performance and past due status of the loan portfolio. Accordingly, the final rule requires the FICU board and management to adopt and adhere to an explicit written policy and standards that control the use of loan workouts, and establish controls to ensure the policy is consistently applied. The loan workout policy and practices should be commensurate with each credit union's size and complexity, and must be in line with the credit union's broader risk mitigation strategies.
The policy must define eligibility requirements (i.e., under what conditions the FICU will consider a loan workout), including establishing limits on the number of times an individual loan may be modified.
Furthermore, the Board believes loan workouts should be adequately controlled and monitored by the board of directors and management, and therefore requires the decision to re-age, extend, defer, renew, or rewrite a loan, like any other revision to contractual terms, be supported by the FICU's management information systems. Sound management information systems are able to identify and document any loan that is re-aged, extended, deferred, renewed, or rewritten, including the frequency and extent such action has been taken. Appropriate documentation typically shows that the FICU's personnel communicated with the borrower, the borrower agreed to pay the loan in full, and the borrower has the ability to repay the loan under the new terms.
NCUA is concerned, however, about restructuring activity that pushes existing losses into future reporting periods without improving the loan's collectability. The final IRPS includes a provision notifying FICUs that if they engage in restructuring activity on a loan that results in restructuring a loan more often than once a year or twice in five years, examiners will have higher expectations for the documentation of the borrower's renewed willingness and ability to repay the loan. Examiners will ask FICUs to provide evidence that their policy of permitting multiple restructurings improve collectability.
In developing a written policy, the FICU board and management may wish to consider similar parameters as those established in the FFIEC's “Uniform Retail Credit Classification and Account Management Policy” (FFIEC Policy). 65 FR 36903 (June 12, 2000). The FFIEC
The Board does not intend for these minimum requirements to be an all inclusive list, rather they provide a basic framework within which to establish a sound loan workout program.
The Board recognizes that loan workouts that qualify under GAAP as TDRs require special financial reporting considerations. The final IRPS mandates that the past due status of all loans should be calculated consistent with loan contract terms, including amendments made to loan terms through a formal restructure. The IRPS eliminates the current, dual, and often manual delinquency tracking burden on FICUs managing and reporting TDR loans, while instituting a nonaccrual policy on TDR loans apart from past due status. The Board will modify the Call Report instructions accordingly.
Additionally, the final IRPS institutes revised Call Report data collections related to loan workouts eliminating much of the current data collections on the broad category “loan modifications,” focusing data collection on TDR loans. The Board will add additional data elements as necessary to effectively monitor and measure TDR activity and corresponding risk to the NCUSIF. This will assist national and field examination and supervision staff both to detect the level of activity and possible overuse of reworking a nonperforming loan multiple times without improving overall collectability, and will ensure income recognition is appropriate.
Generally, NCUA has required,
The final IRPS specifies when FICUs must place loans in nonaccrual status, including the reversal of previously accrued but uncollected interest, sets the conditions for restoration of a nonaccrual loan to accrual status, and discusses the criteria under GAAP for Cash or Cost Recovery basis of income recognition. FICUs may not accrue interest on any loan upon which principal or interest has been in default for a period of 90 days or more, unless the loan is both “well secured” and “in the process of collection.” Additionally, FICUs must place loans in nonaccrual status if maintained on a Cash (or Cost Recovery) basis because of deterioration in the financial condition of the borrower, or for which payment in full of principal or interest is not expected. The IRPS also addresses the treatment of cash interest payments received during periods of loan nonaccrual and prohibits the restoration of previously reversed or charged-off accrued, but uncollected, interest applicable to any loan placed in nonaccrual status.
The final IRPS sets forth specific parameters for returning a nonaccrual loan to accrual.
A nonaccrual loan may be returned to accrual status when:
• Its past due status is less than 90 days, GAAP does not require it to be maintained on the Cash or Cost Recovery basis, and the credit union is plausibly assured of repayment of the remaining contractual principal and interest within a reasonable period;
• When it otherwise becomes well secured and in the process of collection; or
• The asset is a purchased impaired loan and it meets the criteria under GAAP for accrual of income under the interest method specified therein.
In restoring all loans to accrual status, if any interest payments received while the loan was in nonaccrual status were applied to reduce the recorded investment in the loan the application of these payments to the loan's recorded investment must not be reversed (and interest income must not be credited). Likewise, accrued but uncollected interest reversed or charged off at the point the loan was placed on nonaccrual status cannot be restored to accrual; it can only be recognized as income if collected in cash or cash equivalents from the member.
The Board recognizes there are unique circumstances governing the restoration of accrual for member business loan workouts and has set forth a separate policy in the proposal. This policy is largely derived from the “Interagency Policy Statement on Prudent Commercial Real Estate Loan Workouts” that NCUA and the other financial regulators issued on October 30, 2009.
A sustained period of repayment performance would be a minimum of six consecutive timely payments under the restructured loan's terms of principal and interest in cash or cash equivalents. In returning the member business workout loan to accrual status, sustained historical repayment performance for a reasonable time prior to the restructuring may be taken into account. Such a restructuring must improve the collectability of the loan in accordance with a reasonable repayment schedule and does not relieve the FICU from the responsibility to promptly charge off all identified losses.
The final section of the IRPS is a glossary of terms used throughout.
To assist commenters in understanding existing agency guidance, the following illustration is provided:
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact agency rulemaking may have on a substantial number of small credit unions, defined as those under ten million dollars in assets. This rule tightens loan account management processes that should already be in place in FICUs. While FICUs are required to have policies that address loan management protocols, the final rule and IRPS set additional parameters that are consistent with existing best practices and federal banking regulators' policies. NCUA has determined this final rule will not have a significant impact on a substantial number of small credit unions so NCUA is not required to conduct a Regulatory Flexibility Analysis.
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden. 44 U.S.C. 3507(d); 5 CFR part 1320. For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. As required, NCUA has applied to the Office of Management and Budget (OMB) for approval of the information collection requirement described below.
The final rule contains an information collection in the form of a written policy requirement. Any FICU making loan workout arrangements that assist borrowers must have a written policy to govern this activity. FICUs will only need to modify current policies to include any additional parameters established in the rule. It is therefore NCUA's view that implementing this type of policy will create minimum burden to credit unions. The parameters established within the rule and IRPS are usual and customary operating practices of a prudent financial institution. In the proposed rule, NCUA estimated it should take a FICU an average of 8 hours to modify current policies to comply with the parameters set forth in the proposed IRPS. Therefore, the total initial burden imposed to 7,250 FICUs for modifying the policies is approximately 58,000 hours. NCUA further estimated a FICU spends on average 15 minutes per month manually calculating and reporting past due status on each TDR loan. This policy eliminates this requirement. Per the September 30, 2011, Call Report, FICUs have 150,453 TDR loans outstanding. Eliminating this reporting requirement therefore results in an annual savings of 451,359 hours. Thus, on net, this policy results in a substantial hours (393,359 annually) reduction of regulatory burden.
OMB assigned No. 3133-XXXX to this rulemaking.
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedure Act. 5 U.S.C. 551. The Office of Management and Budget has determined that this rule is not a major rule for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. This final rule applies to all FICUs but 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
NCUA has determined that this final rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).
Credit unions, Reporting and recordkeeping requirements.
For the reasons discussed above, NCUA amends 12 CFR part 741 as follows:
12 U.S.C. 1757, 1766(a), 1781-1790 and 1790d; 31 U.S.C. 3717.
(b) * * *
(2) The existence of written lending policies, including adequate documentation of secured loans and the protection of security interests by recording, bond, insurance or other adequate means, adequate determination of the financial capacity of borrowers and co-makers for repayment of the loan, adequate determination of value of security on loans to ascertain that said security is adequate to repay the loan in the event of default, loan workout arrangements, and nonaccrual standards that include the discontinuance of interest accrual on loans past due by 90 days or more and requirements for returning such loans, including member business loans, to accrual status.
This Interpretive Ruling and Policy Statement (IRPS) establishes requirements for the management of loan
This IRPS applies to all federally insured credit unions.
Under this IRPS, TDR loans are as defined in
For purposes of this policy statement, types of workout loans to borrowers in financial difficulties include
Loan workouts can be used to help borrowers overcome temporary financial difficulties, such as loss of job, medical emergency, or change in family circumstances like loss of a family member. Loan workout arrangements should consider and balance the best interests of both the borrower and the credit union.
The lack of a sound written policy on workouts can mask the true performance and
In addition, the policy must establish sound controls to ensure loan workout actions are appropriately structured.
Management must ensure that comprehensive and effective risk management and internal controls are established and maintained so that loan workouts can be adequately controlled and monitored by the credit union's board of directors and management, to provide for timely recognition of losses,
To be effective, management information systems need to track the principal reductions and
The past due status of all loans will be calculated consistent with loan contract terms, including amendments made to loan terms through a formal restructure. Credit unions will report delinquency on the Call Report consistent with this policy.
Credit unions must ensure appropriate income recognition by placing loans in nonaccrual status when conditions as specified below exist, reversing or charging-off previously accrued but uncollected interest, complying with the criteria under GAAP for Cash or Cost Recovery basis of income recognition, and following the specifications below regarding restoration of a nonaccrual loan to accrual status.
Credit unions may not accrue interest
While a loan is in nonaccrual status, some or all of the cash interest payments received may be treated as interest income on a cash basis as long as the remaining
A nonaccrual loan may be restored to accrual status when:
• Its past due status is less than 90 days, GAAP does not require it to be maintained on the Cash or Cost Recovery basis, and the credit union is plausibly assured of repayment of the remaining contractual principal and interest within a reasonable period;
• When it otherwise becomes both
• The asset is a purchased impaired loan and it meets the criteria under GAAP for accrual of income under the interest method specified therein.
In restoring all loans to accrual status, if any interest payments received while the loan was in nonaccrual status were applied to reduce the recorded investment in the loan the application of these payments to the loan's recorded investment must not be reversed (and interest income must not be credited). Likewise, accrued but uncollected interest reversed or charged-off at the point the loan was placed on nonaccrual status cannot be restored to accrual; it can only be recognized as income if collected in cash or cash equivalents from the member.
A formally restructured member business loan workout need not be maintained in nonaccrual status, provided the restructuring and any charge-off taken on the loan are supported by a current, well documented credit evaluation of the borrower's financial condition and prospects for repayment under the revised terms. Otherwise, the restructured loan must remain in nonaccrual status. The evaluation must include consideration of the borrower's sustained historical repayment performance for a reasonable period prior to the date on which the loan is returned to accrual status. A sustained period of repayment performance would be a minimum of six consecutive payments and would involve timely payments under the restructured loan's terms of principal and interest in cash or cash equivalents. In returning the member business workout loan to accrual status, sustained historical repayment performance for a reasonable time prior to the restructuring may be taken into account. Such a restructuring must improve the collectability of the loan in accordance with a reasonable repayment schedule and does not relieve the credit union from the responsibility to promptly charge off all identified losses.
The graph below provides an example of a schedule of repayment performance to demonstrate a determination of six consecutive payments. If the original loan terms required a monthly payment of $1,500, and the credit union lowered the borrower's payment to $1,000 through formal member business loan restructure, then based on the first row of the graph, the “
After a formal restructure of a member business loan, if the restructured loan has been returned to accrual status, the loan otherwise remains subject to the nonaccrual standards of this policy. If any interest payments received while the member business loan was in nonaccrual status were applied to reduce the recorded investment in the loan the application of these payments to the loan's recorded investment must not be reversed (and interest income must not be credited). Likewise, accrued but uncollected interest reversed or charged-off at the point the member business workout loan was placed on nonaccrual status cannot be restored to accrual; it can only be recognized as income if collected in cash or cash equivalents from the member.
The following tables summarize nonaccrual and restoration to accrual requirements previously discussed:
“
“
“
“
“
National Credit Union Administration (NCUA).
Direct final Interpretive Ruling and Policy Statement (IRPS) 12-1, with request for comments.
This direct final policy statement amends IRPS 11-1, which addresses appeals to NCUA's Supervisory Review Committee. NCUA adopts IRPS 12-1 to remove Regulatory Flexibility designation determinations from the list of material supervisory determinations credit unions may appeal to the Committee because NCUA is eliminating the RegFlex program contemporaneously with the issuance of this IRPS.
This IRPS is effective August 29, 2012 unless NCUA withdraws the IRPS by July 30, 2012. Comments must be received by July 2, 2012.
You may submit comments by any of the following methods (Please send comments by one method only):
•
•
•
•
•
•
Chrisanthy Loizos, Staff Attorney, Office of General Counsel, at the above address or telephone (703) 518-6540.
In 1995, the NCUA Board (Board) adopted guidelines that established an independent appellate process to review material supervisory determinations, entitled “Supervisory Review Committee” (IRPS 95-1). Public Law 103-325, § 309(a), 108 Stat. 2160 (1994); 60 FR 14795 (Mar. 20, 1995). Through IRPS 95-1, NCUA established a Supervisory Review Committee (Committee) consisting of three senior staff members to hear appeals of material supervisory determinations. IRPS 95-1 defined material supervisory determinations to include determinations on composite CAMEL ratings of 3, 4 and 5, all component ratings of those composite ratings, significant loan classifications and adequacy of loan loss reserves. In 2002, the Board amended IRPS 95-1 by issuing IRPS 02-1, which added Regulatory Flexibility (RegFlex) designation determinations to the list of material supervisory determinations credit unions may appeal to the Committee. 78 FR 19778 (Apr. 23, 2002). In order to centralize all applicable guidance on the Committee and ensure ease of understanding by credit unions, the Board combined IRPS 95-1 and 02-1 into IRPS 11-1. 83 FR 23871 (Apr. 29, 2011).
In December 2011, the Board issued a Notice of Proposed Rulemaking (NPRM) to eliminate its RegFlex program and remove corresponding part 742 of NCUA's regulations. 76 FR 81421 (Dec. 28, 2011). In the NPRM, the Board notified the public that, upon issuance of a final RegFlex rule, it would amend IRPS 11-1 to remove the RegFlex appeals process. 76 FR at 81422. Contemporaneous with this adoption of IRPS 12-1, the Board is adopting the NPRM as a final rule in a separate rulemaking. The final rule provides regulatory relief by expanding RegFlex authorities to all federal credit unions, rather than only those that qualified for a RegFlex designation. The final rule also removes or amends related rules to ease compliance burden while retaining certain safety and soundness standards.
IRPS 12-1 amends IRPS 11-1 by removing all references to the RegFlex program. The amendments remove RegFlex designations as the fourth type of material supervisory determination a federal credit union could appeal in subpart A's third paragraph. It also removes subpart A's seventh paragraph, which set the time frame for filing RegFlex appeals. Finally, it removes the second sentence in the last paragraph in subpart A, which permitted further appeals to the Board.
The Board is issuing this IRPS as a direct final IRPS under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(A) and § 553(b)(3)(B), because these provisions allow an agency to issue rules without notice and comment in the case of interpretative rules and when it finds for good cause that these procedures are unnecessary. IRPS 11-1, as amended by IRPS 12-1, is an interpretation of agency procedure. Notice and public procedures are unnecessary because the Board finds that IRPS 12-1 is noncontroversial and believes it will not elicit significant adverse comments. The Board's rulemaking action to remove part 742 renders the RegFlex appeals process in IRPS 11-1 moot. IRPS 12-1, therefore, is merely a housekeeping measure to remove references to a nonexistent program. The Board finds these reasons are good cause to dispense with the APA's notice and comment period and the procedures in NCUA's IRPS 87-2. 5 U.S.C. 553(b)(3)(B); 52 FR 35213 (Sept. 18, 1987), as amended by IRPS 03-2, 68 FR 31949 (May 29, 2003).
Although the IRPS is being issued as a direct final IRPS, interested parties have a 30-day comment period. If NCUA receives a significant adverse comment that explains why the IRPS is inappropriate, challenges its underlying premise, or states why it would be ineffective or unacceptable without a change, the agency will withdraw the IRPS by July 30, 2012. Unless NCUA publishes a
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small entities (primarily those under ten million dollars in assets). This final IRPS removes the appeal of RegFlex designations from the Committee's purview because the RegFlex program no longer exists. NCUA has determined and certifies that this IRPS will not have a significant economic impact on a substantial number of small credit unions.
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden. 44 U.S.C. 3507(d); 5 CFR part 1320. For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. NCUA has determined that this final IRPS does not increase paperwork requirements under the PRA and regulations of the Office of Management and Budget.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. This final IRPS applies to credit unions that appeal NCUA's material supervisory determinations before the Committee. It does 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. NCUA has determined that this final IRPS does not constitute a policy that has federalism implications for purposes of the executive order.
NCUA has determined that this final IRPS will not affect family well-being within the meaning of Section 654 of
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the APA. 5 U.S.C. 551. The Office of Management and Budget has determined that this rule is not a major rule for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.
Accordingly, for the reasons set forth in the preamble, IRPS 12-1 amends IRPS 11-1 as follows:
The following ruling will not appear in the Code of Federal Regulations.
Material supervisory determinations are limited to: (1) Composite CAMEL ratings of 3, 4, and 5 and all component ratings of those composite ratings; (2) adequacy of loan loss reserve provisions; and (3) loan classifications on loans that are significant as determined by the appealing credit union. Subject to the requirements discussed below, credit unions may also appeal to the Committee a decision of the Director of the Office of Small Credit Union Initiatives (OSCUI) to deny Technical Assistance Grant (TAG) reimbursements.
Committee decisions on the denial of a TAG reimbursement are the final decisions of NCUA and are not appealable to the NCUA Board. All other appealable decisions must be appealed to the NCUA Board within 30 days of the appellant's receipt by the party of the Committee's decision.
Federal Aviation Administration (FAA), DOT.
Final special conditions; correction.
This document corrects an error that appeared in Docket No. NM438, Special Conditions No. 25-423-SC, which were published in the
Effective May 31, 2012.
Joe Jacobsen, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Standards Staff, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-2011; facsimile (425) 227-1320.
The document designated as “Docket No. NM438, Special Conditions No. 25-423-SC” was published in the
As published, the document contained an error because paragraphs 3(e)(6) and 3(e)(7) were omitted. Due to its complexity the entire text of paragraph 3(e) is included below, including paragraphs 3(e)(6) and 3(e)(7).
3.
(e) V
(1) Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed.
(2) The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which V
(3) The weight used when V
(4) The center of gravity position that results in the highest value of reference stall speed.
(5) The airplane trimmed for straight flight at a speed selected by the applicant, but not less than 1.13 V
(6) The high incidence protection function disabled, or adjusted to a high enough incidence to allow full development of the maneuver to the angle of attack corresponding to V
(7) From the stabilized trim condition, apply the longitudinal control to decelerate the airplane so that the speed reduction does not exceed one knot per second.
Since no other part of the regulatory information has been changed, the special conditions are not being republished.
In Final special conditions document [FR Doc. 2011-7144 Filed 3-25-11; 8:45 a.m.] published on March 28, 2011 (76 FR 17022), make the following correction:
On page 17024, in the first column, which begins with (e), include the following paragraphs after (5) and before (f):
(6) The high incidence protection function disabled, or adjusted to a high enough incidence to allow full development of the maneuver to the angle of attack corresponding to V
(7) From the stabilized trim condition, apply the longitudinal control to decelerate the airplane so that the speed reduction does not exceed one knot per second.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all Rolls-Royce plc (RR) RB211-Trent 800 series turbofan engines. This AD requires removal from service of certain critical engine parts based on reduced life limits. This AD was prompted by RR adding a new flight profile and an associated set of life limits. We are issuing this AD to prevent the failure of critical rotating parts, which could result in uncontained failure of the engine and damage to the airplane.
This AD becomes effective June 15, 2012.
We must receive comments on this AD by July 16, 2012.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7143; fax: 781-238-7199; email:
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2012-0051, dated March 26, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Flight Profiles (FP) define the limits of engine operation within which the engine will qualify for use of an associated set of Critical Parts life limits. The Rolls-Royce RB211-Trent 800 engine previously had seven such FPs and associated sets of life limits published in the RR Time Limits Manual.
However, the results of a recent review of operational flight data determined that the existing FPs do not encompass the full range of Trent 800 operations. To account for the consequent increased rate of fatigue life usage on the life limited Critical Parts, a new FP and associated set of reduced life limits for Critical Parts has been developed, defined as FP “MAX”, that defines a new level of operation which is outside the “HEAVY” FP, previously the most arduous.
We are issuing this AD to prevent the failure of critical rotating parts, which could result in uncontained failure of the engine and damage to the airplane. You may obtain further information by examining the MCAI in the AD docket.
This product has been approved by the United Kingdom and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
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 some parts may require immediate removal upon recalculation of the part lives in accordance with the AD. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant 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
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
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); and
3. 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.
4. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective June 15, 2012.
None.
This AD applies to Rolls-Royce plc (RR) RB211-Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17, and 895-17 turbofan engines.
This AD was prompted by RR adding a new flight profile and an associated set of life limits. We are issuing this AD to prevent the failure of critical rotating parts, which could result in uncontained failure of the engine and damage to the airplane.
Compliance is required within 30 days after the effective date of this AD, unless already done.
(f) After the effective date of this AD, remove from service the parts listed by part number (P/N) in Table 1 of this AD before exceeding the new life limit indicated.
After the effective date of this AD, do not install any IP turbine rotor discs, P/N FK33083, into any engine.
The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) You may find additional information on calculating MAX Profile Cycles, in RB211 Trent 800 Propulsion Systems Alert Service Bulletin (ASB) No. RB.211-72-AG801 and RR Time Limits Manual 05-00-01-800-801, Recording and Control of the Lives of Parts.
(2) For more information about this AD, contact Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7143; fax: 781-238-7199; email:
(3) Refer to European Aviation Safety Agency Airworthiness Directive 2012-0051, dated March 26, 2012, and RB211 Trent 800 Propulsion Systems ASB No. RB.211-72-AG801, dated December 8, 2011, for related information.
(4) For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England DE248BJ; phone: 011-44-1332-242424; fax: 011-44-1332-245418 or email from
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all Honeywell International, Inc. ALF502L-2C; ALF502R-3; ALF502R-3A; ALF502R-5; LF507-1F; and LF507-1H turbofan engines. This AD was prompted by two reports of engines experiencing uncontained release of low-pressure (LP) turbine blades. This AD requires operational checks of the engine overspeed trip system. We are issuing this AD to prevent LP turbine overspeed leading to uncontained release of the LP turbine blades and damage to the airplane.
This AD is effective July 5, 2012.
You may examine the AD docket on the Internet at
Robert Baitoo, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, 3960 Paramount Blvd., Lakewood, CA 90712; phone: 562-627-5245; fax: 562-627-5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the
We gave the public the opportunity to participate in developing this AD. We have considered the one comment received. The National Transportation Safety Board supports the NPRM.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD as proposed, except that we determined to not incorporate by reference the engine manuals for the procedures for operational checks of the engine overspeed trip system. Instead, we have included those procedures in the AD. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 14312, March 9, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 14312, March 9, 2012).
We estimate that this AD will affect 188 Honeywell International, Inc. ALF502L-2C; ALF502R-3; ALF502R-3A; ALF502R-5; LF507-1F; and LF507-1H turbofan engines, installed on airplanes of U.S. registry. We also estimate that it will take about one work-hour to perform an operational check of the overspeed trip system on each engine. The average labor rate is $85 per work-hour. Based on these figures, we estimate the total cost of this AD for one operational check of the overspeed trip system to U.S. operators, to be $15,980.
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 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 5, 2012.
None.
This AD applies to Honeywell International, Inc. ALF502L-2C; ALF502R-3; ALF502R-3A; ALF502R-5; LF507-1F; and LF507-1H turbofan engines.
This AD was prompted by two reports of engines experiencing uncontained release of low-pressure (LP) turbine blades. We are issuing this AD to prevent LP turbine overspeed leading to uncontained release of the LP turbine blades and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 30 operating hours after the effective date of this AD, perform an initial check of the overspeed trip system, in accordance with the applicable paragraphs for your engine as follows:
(i) With engine operating at 65 percent NL (N1) speed (28 to 30 percent if overspeed controller 2-303-052-04 or later is installed), pull toggle lever of cockpit OVERSPEED TEST/RESET switch and hold in the OVERSPEED TEST position.
(ii) Activation of the engine overspeed system shall be verified by:
(A) Engine OVERSPEED TRIP light illuminated in cockpit.
(B) Reduction of engine NH (N2) speed.
(C) When engine NH (N2) speed begins to decrease, retract engine power lever to fuel cutoff position and turn off fuel boost pumps.
(D) Release lever of engine cockpit OVERSPEED TEST/RESET Switch.
(E) When engine is completely shut down, reset the engine Overspeed System by momentarily holding the engine cockpit OVERSPEED TEST/RESET switch on the RESET position.
(F) If engine does not shut down, manually shut down engine and perform a detailed functional test of the overspeed system. Guidance on performing a detailed functional test of the overspeed system can be found in the applicable engine maintenance manual instructions.
(i) With engine operating at ground idle, set engine NL (N1) speed to 30 to 35 percent.
(ii) Press cockpit OVERSPEED TEST switch and hold.
(iii) Activation of the engine overspeed system shall be verified by:
(A) Engine OVERSPEED TRIP light illuminated in cockpit.
(B) Shutdown of the engine [zero NH (N2) speed].
(iv) Release cockpit OVERSPEED TEST switch and retract power lever to fuel cutoff position.
(v) When the engine is completely shut down, reset the engine overspeed system.
(vi) If engine does not shut down, manually shut down engine and perform a detailed functional test of the overspeed system. Guidance on performing a detailed functional test of the overspeed system can be found in the applicable engine manual instructions.
(i) With engine operating at ground idle, set engine NL (N1) speed to 30 to 35 percent.
(ii) Activate cockpit overspeed test circuit (GRND TEST ENG OVSPD).
(iii) After NL (N1) speed begins to decay, retard the throttle to the fuel cutoff position.
(iv) Verify the following conditions:
(A) Engine shutdown.
(B) Overspeed system light (ENG OVSPD) is illuminated in cockpit.
(v) Reset overspeed system circuit power.
(vi) If engine does not shut down, manually shut down engine and perform a detailed functional test of the overspeed system. Guidance on performing a detailed functional test of the overspeed system can be found in the applicable engine manual instructions.
(1) For ALF502L-2C engines, perform repetitive checks of the overspeed trip system at 100-hour intervals of operation, as specified in paragraph (f)(1) of this AD.
(2) For ALF502R-3; ALF502R-3A; ALF502R-5; and LF507-1H engines, perform repetitive checks of the overspeed trip system once every flight day, as specified in paragraph (f)(2) of this AD.
(3) For LF507-1F engines, perform repetitive checks of the overspeed trip system once every flight day, as specified in paragraph (f)(3) of this AD.
For the purpose of this AD, a flight day is a 24-hour period during which at least one flight is indicated.
Upon starting the daily repetitive checks, only one sign-off is required attesting to the daily check implementation.
The Manager, Los Angeles Aircraft Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
For more information about this AD, contact Robert Baitoo, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, 3960 Paramount Blvd., Lakewood, CA 90712; phone: 562-627-5245; fax: 562-627-5210; email:
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during April 2012. FDA is also informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable.
This rule is effective May 31, 2012.
George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-276-9019,
FDA's Center for Veterinary Medicine (CVM) is adopting use of a monthly
In this document, FDA is amending the animal drug regulations to reflect the original and supplemental approval actions during April 2012, as listed in table 1 of this document. FDA is also informing the public of the availability, where applicable, of environmental review documents required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the Internet may obtain these documents at the CVM FOIA Electronic Reading Room:
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Administrative practice and procedure, Animal drugs, Confidential business information, Reporting and recordkeeping requirements.
Animal drugs.
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510, 516, 520, 522, and 558 are amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360ccc-1, 360ccc-2, 371.
21 U.S.C. 360b.
(b)
(1) No. 000061 for use as in paragraph (d) of this section.
(2) No. 013744 for use as in paragraph (d)(1) of this section.
21 U.S.C. 360b.
(a) * * *
(2) * * *
(ii)
(3) * * *
(iii) Do not use in horses intended for human food. Federal law restricts this drug to use by or on the order of a licensed veterinarian.
21 U.S.C. 360b, 371.
(a) * * *
(2) 500 grams per kilogram for use as in paragraph (e)(2) of this section.
(c) * * *
(2) * * *
(i) For freshwater-reared finfish, must not exceed 15 days from the date of issuance.
(e) * * *
(2) * * *
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Final rule; technical correction.
This rule makes a technical correction to the regulations that govern Longer Combination Vehicles (LCV) for the States of Oregon and Nebraska. The amendments contained herein make no substantive changes to FHWA regulations, policies, or procedures.
This rule is effective July 2, 2012.
John Nicholas, Truck Size and Weight Program Manager, Office of Freight Management and Operations, (202) 366-2317; or Bill Winne, Office of the Chief Counsel, (202) 366-1397. Both are located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours for FHWA are from 8 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.
An electronic copy of this document may be downloaded by accessing the Office of the Federal Register's home page at:
This rulemaking makes technical corrections to the regulations in appendix C of 23 CFR part 658 that govern length of trailers in Oregon and the length of permit duration in Nebraska. The regulations on LCV's were frozen as of July 1, 1991, in accordance with Section 1023 of the Intermodal Surface Transportation Efficiency Act (ISTEA)
Oregon Department of Transportation petitioned the FHWA Administrator that the section of Appendix C that describes operational conditions for triple trailers on Oregon's Interstate highways is not accurate. Oregon's law that was in effect at the time Appendix C was adopted, June 1, 1991, required only that the trailers be “* * * reasonably uniform in length,” rather than of “equal length” as stated in Appendix C. The substitution of language, “reasonably uniform in length,” for the current “of equal length,” will correct the language and bring it into conformance with Oregon statutes of that time.
Nebraska Department of Roads petitioned the FHWA Administrator to change 120 days for the maximum duration of a permit, as currently written in Appendix C, to allow 150 days for the maximum permit time as included in Nebraska Statutes in July 1991. The substitution of 150 days for the current 120 days will correct the language and bring it into conformance with Nebraska statutes of that time.
Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. The FHWA finds that notice and comment for this rule is unnecessary and contrary to the public interest because it will have no substantive impact, is technical in nature, and relates only to management, organization, procedure, and practice. The amendments to the rule are based upon the explicit language of statutes that were enacted subsequent to the promulgation of the rule. The FHWA does not anticipate receiving meaningful comments. States, local governments, motor carriers, and other transportation stakeholders rely upon the regulations corrected by this action. These corrections will reduce confusion
The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of DOT regulatory policies and procedures. This action complies with Executive Orders 12866 and 13563 to improve regulation. It is anticipated that the economic impact of this rulemaking will be minimal. This rule only makes minor corrections that will not in any way alter the regulatory effect of 23 CFR part 658. Thus, this final rule will not adversely affect, in a material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 60l-612) FHWA has evaluated the effects of this action on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities. This final rule will not make any substantive changes to our regulations or in the way that our regulations affect small entities; it merely corrects technical errors. For this reason, the FHWA certifies that this action will not have a significant economic impact on a substantial number of small entities.
This rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule does not impose any requirements on State, local, or tribal governments, or the private sector and, thus, will not require those entities to expend any funds.
This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to these programs.
This action does not create any new information collection requirements for which a Paperwork Reduction Act submission to the Office of Management and Budget would be needed under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.
The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that this action will not have any effect on the quality of the environment.
The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and concluded that this rule will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal government; and will not preempt tribal law. There are no requirements set forth in this rule that directly affect one or more Indian tribes. Therefore, a tribal summary impact statement is not required.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
Under Executive Order 13045, Protection of Children from Environmental Health and Safety Risks, this final rule is not economically significant and does not involve an environmental risk to health and safety that may disproportionally affect children.
This final rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This final rule has been analyzed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that it is not a significant energy action under that order because it is not a significant regulatory action under Executive Order 12866 and this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
A regulation identification 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 RINs contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Grant programs—transportation, Highways and roads, Motor carriers.
In consideration of the foregoing, 23 CFR part 658 is amended as set forth below.
23 U.S.C. 127 and 315; 49 U.S.C. 31111, 31112, and 31114; sec. 347, Pub. L. 108-7, 117 Stat. 419; sec. 756, Pub L. 109-59, 119 Stat. 1219; sec. 115, Pub. L. 109-115, 119 Stat. 2408; 49 CFR 1.48(b)(19) and (c)(19).
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Final rule.
This final rule amends HUD's regulations for the Section 8 Management Assessment program (SEMAP), by revising the process by which HUD measures and verifies performance under the SEMAP lease-up indicator. Specifically, HUD amends the existing regulation to reflect that assessment of a public housing agency's (PHA) leasing indicator will be based on a calendar year cycle, rather than a fiscal year cycle, which would increase administrative efficiencies for PHAs. This rule also clarifies that units assisted under the voucher homeownership option or occupied under a project-based housing assistance payments (HAP) contract are included in the assessment of PHA units leased.
Laure Rawson, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4216, Washington, DC 20410, telephone number 202-402-2425.
On September 23, 2011, HUD published in the
As provided in the preamble to the proposed rule, the Consolidated Appropriations Act, 2005 (Pub. L. 108-447, 118 Stat. 2809, approved December 8, 2004) addressed the subject of voucher management system leasing and cost data. The 2005 Consolidated Appropriations Act stated, in relevant part, that “the Secretary for the calendar year 2005 funding cycle shall renew such contracts for each public housing agency based on verified Voucher Management System (VMS) leasing and cost data.” (See 118 Stat. 3295.) Following enactment of the 2005 Consolidated Appropriations Act, the Office of Public and Indian Housing (PIH) issued PIH Notice 2005-1, which provides that “PHAs will receive monthly disbursements from HUD on the basis of the PHA's calculated calendar year budget.” Since 2005, consistent with the 2005 appropriations act and the implementing notice, and consistent with subsequent appropriations acts, HUD has provided PHAs with renewal funding for their Housing Choice Voucher (HCV) program on a calendar year basis. At the beginning of each calendar year, PHAs are notified of their funding amounts for the calendar year, and they plan their voucher issuance and leasing according to that funding cycle.
As the preamble to the proposed rule further noted, in contrast to the process for measuring VMS leasing and cost data, the SEMAP lease-up indicator continues to measure a PHA's lease-up rate on a fiscal year basis. The use of a calendar year for renewal funding, while using a fiscal year system for SEMAP measurements, has resulted in increased complexity for PHAs administering the HCV program and programmatic inefficiency. To eliminate such complexity, and reduce inefficiency in the HCV program resulting from two processes based on different periods of measurement, HUD, through the September 23, 2011, rule, proposed to amend the SEMAP regulations to provide for the SEMAP lease-up indicator to be measured based on a calendar year funding cycle, rather than the existing fiscal year cycle. The September 23, 2011, rule also proposed to clarify that units assisted under the voucher homeownership option or occupied under a project-based voucher (PBV) housing assistance payments (HAP) contract are included in the assessment of PHA units leased. These homeownership units and project-based voucher units have always been included in the assessment, but this is not explicit in current regulations.
At the close of public comment period on October 24, 2011, HUD received five public comments. The commenters consisted of two individuals, two PHAs and an independent nonprofit institute. With the exception of one of the PHAs, the commenters supported the changes proposed by the September 23, 2011, rule. The two individual commenters expressed their support for the rule without proposing any additional changes, with one of the commenters stating that the change was long overdue. The other two commenters supporting the rule proposed additional changes, and the PHA that did not favor the change appears to have misunderstood some of the program requirements.
In response to public comment, HUD revised the proposed rule at this final rule stage, to clarify what allocated budget authority includes. With the exception of this change, no further changes were made. The following addresses the comments raised by the latter three commenters.
This commenter also stated that HUD should also continue to make allowance for HCVs reserved for AHAP and HAP contacts when calculating renewal funding. The commenter stated that it recognizes that not all HCVs under an AHAP or HAP should be counted as leased for purposes of determining overutilization. HCVs are over-leased when a PHA has more “unit-months leased” over the course of a calendar year than the authorized number of “unit-months available.” The commenter stated that for that calculation, HUD should continue to count only those PBV units that are actually leased up, and then allow the PHA to exclude units with “zero-HAP” or fully abated rent. The commenter concluded by stating that SEMAP does not penalize a PHA for HCV overutilization, and the commenter supports continuing that approach.
The commenter, in further support of this suggested change, stated that the proposed rule strikes a better balance than current policy in that it acknowledges both that the leasing-up of new increments may be delayed for reasons beyond the PHA's control and that the great majority of new HCVs require far less than 12 months to lease
The commenter further states that for some types of new HCV awards made near the end of the calendar year, it may be desirable to allow a longer period for initial leasing than allowed under the proposed rule, and that this may be particularly true when PHAs are required to coordinate with service providers before issuing the new HCVs to special populations, such as in the case of VASH or FUP HCVs. The commenter offered that rushing the leasing of such HCVs may be short-sighted, and undermine the goal of promoting ongoing partnerships between PHAs and service-providing agencies.
The commenter concluded with the recommendation that the final rule allow HUD to exempt, on a case-by-case basis, particular HCV increments from the baseline for an additional calendar year when a longer period for initial leasing would advance the goals of the award.
The commenter recommended that HUD provide temporary exclusions from PHAs' HCV baseline, on a case-by-case basis, for litigation HCVs.
The commenter recommended that the final rule either should define “allocated budget authority” to include funds offset in determining the calendar year renewal allocation, or should add language regarding the inclusion of offset funds in the denominator of the measure.
The commenter recommended that the measure of performance for the SEMAP lease-up indicator also should recognize this limited exception, to balance the vital policy of encouraging PHAs to serve the maximum number of families possible with the policy goals of encouraging mixed-income and supportive housing developments.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate real property acquisition, disposition, leasing, rehabilitation, alteration, demolition or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. This rule is limited to the means by which PHAs lease-up rates are measured. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any federal mandates on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.
Grant programs—housing and community development, Housing, Rent subsidies, Reporting and recordkeeping requirements.
Accordingly, for the reasons stated in the preamble, HUD amends 24 CFR part 985 as follows:
42 U.S.C. 1437a, 1437c, 1437f, and 3535(d).
(n)
(1)
(2)
(3)
(ii) The percent of units leased or occupied by homeowners under the voucher homeownership option, or the percent of allocated budget authority expended during the calendar year that ends on or before the assessed PHA fiscal year was 95 to 97 percent. (15 points.)
(iii) The percent of units leased or occupied by homeowners under the voucher homeownership option, or the percent of allocated budget authority expended during the calendar year that ends on or before the assessed PHA fiscal year was less than 95 percent. (0 points.)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the specified waters in Galveston Bay in the vicinity of Kemah, Texas within a 1000' radius around a fireworks barge. The safety zone is necessary to aid in the safety of mariners viewing the Kemah Boardwalk Summer Season Fireworks. During periods of enforcement, entry into the zone will not be permitted except as specifically authorized by the Captain of the Port Houston-Galveston or a designated representative.
This rule is effective from 8:30 p.m. on June 1, 2012 until 1 a.m. on January 1, 2013.
Documents mentioned in this preamble are part of docket [USCG-2012-0240]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Margaret Brown, Sector Houston-Galveston Waterways Management Branch, U.S. Coast Guard; telephone (713) 678-9001, email
The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. Delaying the effective date by first publishing an NPRM would be contrary to the safety zone's intended objective since immediate action is needed to protect person's and vessels against the hazards associated with fireworks displays on navigable waters. Such hazards include premature detonations, dangerous detonations, dangerous projectiles and falling or burning debris.
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis and authorities for this rule are found in 33 U.S.C. 1266, 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.
The Kemah Boardwalk Summer Season Fireworks will feature fireworks being launched from a barge. It has been determined that a safety zone is necessary to keep recreational vessels clear of any potential hazards associated with the launching of fireworks.
This temporary safety zone provides protection for persons and property, including spectators, persons working the displays, and others that may be in the area during enforcement periods of this temporary safety zone, from the hazards associated with fireworks displays on or over the waterway.
The Coast Guard is establishing a temporary safety zone in Galveston Bay in the vicinity of Kemah, Texas within a 1000' radius around a fireworks barge located at approximate Latitude 29°32′57″ N, Longitude 095°00′31″ W. Entry into the zone will not be permitted except as specifically authorized by the Captain of the Port Houston-Galveston or a designated representative. They may be contacted at “Sector Houston-Galveston” on VHF-FM Channels 16, or by phone at (713) 671-5113. Requests to enter into and/or pass through the safety zone will be reviewed on a case-by-case basis.
The temporary safety zone will be enforced during the following dates and times: from 8:30 p.m. until 11:30 p.m. on June 1, 8, 15, 22, and 29, 2012; July 4, 6, 13, 20, and 27, 2012; November 3, 2012; and from 9 p.m. on December 31, 2012 until 1 a.m. on January 1, 2013. Notifications of changes in enforcement periods will be made through broadcast notice to mariners.
We developed this 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 rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This regulation is not a significant regulatory action because enforcements of the safety zone will only be in effect for a brief period of time. Notifications to the marine community will be made through broadcast notice to mariners and electronic mail. The safety zone will only affect recreational vessels and deviation from the restrictions may be requested from the COTP or designated representative and will be considered on a case-by-case basis. The impacts on routine navigation are expected to be minimal.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule would affect the following entities, some of which might be small entities: the owners or operators of recreational vessels intending to transit or anchor in a portion of the Clear Creek/Kemah Channel from 8:30 p.m. until 11:30 p.m. on June 1, 8, 15, 22, and 29, 2012; July 4, 6, 13, 20, and 27, 2012; November 3, 2012; and from 9 p.m. on December 31, 2012 until 1 a.m. on January 1, 2013.
The impact would not be significant to small entities as each safety zone will only affect recreational vessels transiting the Clear Creek/Kemah Channel for a short period of time. Before activation of the zone, broadcast notices to mariners will be issued to users of the channel.
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 rule. If the rule would affect your small business,
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule 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 rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone for the protection of human life. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons or vessels requiring entry into or passage through the zone must request permission from the Captain of the Port Houston-Galveston, or a designated representative. They may be contacted at “Sector Houston-Galveston” on VHF-FM Channels 16, or by phone at (713) 671-5113. Requests to enter into and/or pass through the safety zone will be reviewed on a case-by-case basis. All persons and vessels shall comply with the instructions of the Captain of the Port Houston-Galveston
(d)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zones for fireworks displays in the Sector Columbia River Captain of the Port Zone from May 2012 through September 2012. This action is necessary to ensure the safety of the crews onboard the vessels displaying the fireworks, the maritime public, and all other observers. During the enforcement period for each specific safety zone, no person or vessel may enter or remain in the safety zone without permission of the Captain of the Port Columbia River or his designated representative.
The regulations in 33 CFR Part 165.1315 will be enforced as listed in the
If you have questions on this notice, call or email ENS Ian McPhillips, Waterways Management Division, MSU Portland, Coast Guard; telephone 503-240-9319, email
The Coast Guard will enforce the safety zone regulation in 33 CFR 165.1315 for fireworks displays in the Columbia River Captain of the Port Zone during the dates and times listed as follows:
(1) Portland Rose Festival Fireworks Display, Portland, OR: May 25, 2012 from 8:30 p.m. until 11:30 p.m.
(2) Tri-City Chamber of Commerce Fireworks Display, Columbia Park, Kennewick, WA: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(3) Cedco Inc. Fireworks Display, North Bend, OR: July 3, 2012 from 8:30 p.m. until 11:30 p.m.
(4) Astoria 4th of July Fireworks, Astoria, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(5) Oregon Food Bank Blues Festival Fireworks, Portland, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(6) Oregon Symphony Concert Fireworks Display, Portland, OR: August 30, 2012 from 8:30 p.m. until 11:30 p.m.
(7) Florence Chamber 4th of July Fireworks Display, Florence, OR: July 4, 2012 from 9 p.m. until 11 p.m.
(8) Oaks Park July 4th Celebration, Portland, OR: July 4, 2012 from 9 p.m. until 11 p.m.
(9) Rainier Days Fireworks Celebration, Rainier, OR: July 14, 2012 from 9 p.m. until 11 p.m.
(10) Independence Day at the Port, Ilwaco, WA: July 7, 2012 from 10 p.m. until 10:30 p.m.
(11) Milwaukie Centennial Fireworks Display, Milwaukie, OR: July 28, 2012 from 9 p.m. until 11 p.m.
(12) Splash Aberdeen Waterfront Festival, Aberdeen, WA: July 4, 2012 from 9 p.m. until 11 p.m.
(13) City of Coos Bay July 4th Celebration, Coos Bay, OR: July 4, 2012 from 9:00 p.m. until 11:00 p.m.
(14) Arlington Chamber of Commerce Fireworks Display, Arlington, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(15) East County 4th of July Fireworks, Gresham, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(16) Port of Cascade Locks July 4th Fireworks Display, Cascade Locks, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(17) Astoria Regatta Association Fireworks Display, Astoria, OR: August 11, 2012 from 8:30 p.m. until 11:30 p.m.
(18) City of Washougal July 4th Fireworks Display, Washougal, WA: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(19) City of St. Helens 4th of July Fireworks Display, St. Helens, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(20) Waverly Country Club 4th of July Fireworks Display, Milwaukie, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(21) Booming Bay Fireworks, Westport, WA: July 4, 2012 from 8:30 until 11:30 p.m.
(22) Hood River 4th of July, Hood River, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
(23) Rufus 4th of July Fireworks, Rufus, OR: July 4, 2012 from 8:30 p.m. until 11:30 p.m.
Under the provisions of 33 CFR part 165.1315 and 33 CFR part 165 subparts C, no person or vessel may enter or remain in the safety zones without permission of the Captain of the Port Columbia River or his designated representative. See 33 CFR 165.1315 and 33 CFR 165 Subparts C for additional information and prohibitions. Persons or vessels wishing to enter the safety zones may request permission to do so from the Captain of the Port Columbia River or his designated representative via VHF Channel 16 or 13. The Coast Guard may be assisted by other Federal, State, or local enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 165.1315 and 5 U.S.C. 552(a). In addition to this notice in the
Environmental Protection Agency (EPA).
Withdrawal of final rule.
EPA is withdrawing a significant new use rule (SNUR) promulgated under the Toxic Substances Control Act (TSCA) for a chemical substance identified generically as C15 olefins, which was the subject of premanufacture notice (PMN) P-11-511. EPA published this SNUR using direct final rulemaking procedures. EPA received a notice of intent to submit adverse comments on the rule. Therefore, the Agency is withdrawing this SNUR, as required under the expedited SNUR rulemaking process. EPA intends to publish a proposed SNUR for the chemical substance under separate notice and comment procedures.
This final rule is effective June 4, 2012.
A list of potentially affected entities is provided in the
In the
For further information regarding EPA's expedited process for issuing SNURs, interested parties are directed to 40 CFR part 721, subpart D, and the
To access the electronic docket, please go to
This final rule revokes or eliminates an existing regulatory requirement and does not contain any new or amended requirements. As such, the Agency has determined that this withdrawal will not have any adverse impacts, economic or otherwise. The statutory and executive order review requirements applicable to the direct final rule were discussed in the
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve Illinois' negative declaration and request for EPA withdrawal of its 111(d)/129 State Plan to control air pollutants from “Large Municipal Waste Combustors” (LMWC).
This direct final rule will be effective July 30, 2012, unless EPA receives adverse comments by July 2, 2012. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2012-0312, by one of the following methods:
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Margaret Sieffert, Environmental Engineer, Environmental Protection Agency, Region 5, 77 West Jackson Boulevard (AT-18J), Chicago, Illinois 60604, (312) 353-1151,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
Sections 111(d) and 129 of the Clean Air Act require submittal of State plans to control certain pollutants (designated pollutants) at existing solid waste combustion facilities (designated facilities) whenever standards of performance have been established under section 111(d) for new sources of the same type and EPA has established emission guidelines for such existing sources. Standards of performance for new LMWC units and emission guidelines for all existing LMWC units constructed on or before September 20, 1994, were originally established by EPA on December 15, 1995 (60 FR 65415).
EPA approved Illinois' LMWC State Plan to implement EPA's emission guidelines for existing LMWCs on December 29,1997 at 62 FR 67570 and codified at 40 CFR 62.3350. The only LMWC operating in the State was Robbins Resource Recovery Center (RRRC). On May 10, 2006, EPA promulgated revised LMWC emission guidelines under 40 CFR part 60 subpart Cb, that triggered the need for states to submit revised State Plans to implement the revised emission guidelines for existing sources in the state. However, 40 CFR 62.06 provides that if there are no existing sources of the designated pollutants within a state, the state may submit a letter of certification to that effect, or a negative declaration, in lieu of a plan. The negative declaration exempts the state from the requirements to submit a State Plan for designated pollutants at designated facilities. On February 1, 2012, the Illinois Environmental Protection Agency (IEPA) submitted a negative declaration letter to EPA certifying that the only designated facility in the State Plan, RRRC, ceased operation and is completely shut down, and requested that EPA withdraw the Illinois' State Plan implementing the emission guidelines for LMWCs.
IEPA has determined that there are now no existing facilities subject to subpart Cb requirements in the State. EPA accepts the State's negative declaration. EPA is approving the State of Illinois' negative declaration and request for withdrawal of its State Plan for LMWCs. Accordingly, EPA is amending part 62 to reflect approval of the IEPA February 1, 2012, negative declaration and request for EPA withdrawal of the LMWC State Plan. However, if an affected Illinois LMWC unit is discovered in the future, all the requirements of the Federal plan (including revisions or amendments), part 62, subpart FFF, will be applicable to the affected unit.
EPA is publishing this approval notice without prior proposal because the Agency views this as a non-controversial action and anticipates no adverse comments. However, in the proposed rules section of this
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional
In reviewing Section 111(d)/129 plan submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a Section 111(d)/129 plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a Section 111(d)/129 plan submission, to use VCS in place of a Section 111(d)/129 plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 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 30, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 approving Illinois' Section 111(d)/129 negative declaration and request for EPA withdrawal of the LMWC plan approval may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Administrative practice and procedure, Large municipal waste combustors, Intergovernmental relations, Reporting and recordkeeping requirements.
40 CFR part 62 is amended as follows:
42 U.S.C. 7401
(b) On February 1, 2012, the Illinois Environmental Protection Agency submitted a negative declaration that there are no large municipal waste combustors in the State of Illinois subject to part 60, subpart Cb emission guidelines and requested withdrawal of its State Plan for LMWC units approved under paragraph (a) of this section.
The Federal effective date of the negative declaration and withdrawal of Illinois' State Plan for LMWC units is July 30, 2012.
Environmental Protection Agency (EPA).
Final rule.
Pursuant to section 107(d)(3) of the Clean Air Act, the EPA is redesignating from “unclassifiable” to “nonattainment” an area in western Pinal County, Arizona, for the 1987 national ambient air quality standard for particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
This rule is effective on July 2, 2012.
EPA has established docket number EPA-R09-OAR-2010-0491 for this action. Generally, documents in the docket for this action are available electronically at
Ginger Vagenas, EPA Region IX, (415) 972-3964,
Throughout this document, “we,” “us,” and “our” refer to EPA.
On July 1, 1987, the EPA revised the national ambient air quality standards (NAAQS or “standards”) for particulate matter (52 FR 24634), replacing total suspended particulates as the indicator for particulate matter with a new indicator called PM
Most of Pinal County, Arizona, including the area that is the subject of today's action, was included in the “rest of state” area, which was designated “unclassifiable” for PM
On October 14, 2009, under CAA section 107(d)(3)(A), the EPA notified the Governor of Arizona and tribal leaders of the four Indian Tribes (whose Indian country is located entirely, or in part, within Pinal County) that the designation for Pinal County, and any nearby areas that may be contributing to the monitored violations in Pinal County, should be revised (“EPA's notification”). Our decision to initiate the redesignation process stemmed from review of 2006-2008 ambient PM
Pursuant to section 107(d)(3)(B) of the Act, in a letter dated March 23, 2010, the Governor of Arizona responded to the EPA's notification with a recommendation for a partial-county nonattainment area.
The boundaries of the prospective PM
In a letter dated February 11, 2010, the Tohono O'odham Nation (TON) responded to the EPA's December 30, 2009 letter concerning the PM
On October 1, 2010 (75 FR 60680), pursuant to section 107(d)(3) of the CAA, the EPA proposed to redesignate from “unclassifiable” to “nonattainment” an area generally covering the western half of Pinal County, Arizona, for the 1987 PM
As explained in our October 1, 2010 proposed rule (75 FR at 60686), and more fully in the TSD for the proposal, we believe that the State's recommended boundaries would not encompass the full geographic area from which emissions-generating activities contribute to the monitored PM
With respect to the affected Indian Tribes, for the reasons given in the proposed rule, we proposed to exclude the main TON reservation and the San Carlos Apache Reservation from the PM
Please see our October 1, 2010 proposed rule and our related TSD for more information about our proposed action and the rationale for our proposed boundaries.
Our October 1, 2010 proposed rule provided for a 30-day comment period, and the EPA received 11 comment letters in response to the proposal, including letters from the Arizona Department of Environmental Quality (ADEQ), the Arizona Game and Fish Department, the Pinal County Air Quality Department, the City of Casa Grande, the Central Arizona Irrigation and Drainage District, the Arizona Public Service Company, several agricultural groups, the Sierra Club, and a member of the general public.
None of the commenters disagreed with the need to redesignate a portion of Pinal County nonattainment for the 1987 24-hour PM
As discussed in more detail below and in our Response to Comments (RTC) document,
In the following paragraphs of this section, we summarize our responses to significant comments that we received on our October 1, 2010 proposed rule. Our full responses to all the comments received can be found in the previously-cited RTC document, which is included in the docket for this rulemaking.
Commenters pointed to differences in activity levels and the degree of urbanization in areas within and outside the Governor's recommended boundary and argued that the State's preliminary emissions inventory showed that sources in the eastern and/or southern regions of the county do not significantly contribute to violations in other regions of the county.
As stated above, CAA defines a nonattainment area to include a nearby area that contributes to air quality in the area where violations are measured. To identify nearby areas that contribute to the measured violations of PM
The EPA believes that the distribution of emissions from on-road traffic requires extending Arizona's recommended boundary; however, upon further review, we concluded that the comments submitted and further review of available data provide a persuasive case for modifying EPA's proposed boundary. For the final nonattainment area boundaries, we reduced emphasis on the growth and commuting patterns and increased the weight given to emissions- and land-use-related data and thus are not including the southern-most portion of Pinal County, the Table Top and Superstition Wilderness areas, and the largely undisturbed desert areas east of Township 8 East, except where the boundary extends farther to the east to include the Florence area and the Picacho Peak area.
Our conclusion that the area southeast of the State's boundary in and around Eloy contributes to the violations farther northwest is based on (1) emissions inventory data (see table 3 of the TSD for the proposed rule) that shows that PM
As discussed in EPA's proposal and in the Meteorology section of the TSD, we agree that it would be desirable to have additional meteorological data available. Nonetheless, EPA believes that there are sufficient meteorological data from the AZMET (Arizona Meteorological Network) stations within and around the proposed area to show that flow from the southeast toward the violating monitors occurs often. The EPA believes that this pattern exists even during the exceedance days discounted by ADEQ and PCAQ.
For the reasons provided in the proposed rule and TSD, insofar as not modified here, the Response to Comments document, and this final rule, the EPA is taking final action pursuant to section 107(d)(3) of the Clean Air Act to redesignate an area in western Pinal County, Arizona from “unclassifiable” to “nonattainment” for the 1987 24-hour PM
For this final action, we reduced the size of the nonattainment area relative to the area for which we proposed redesignation and believe that the final boundaries more closely align the nonattainment area boundaries with the areas in which PM
We are continuing to defer our decision regarding redesignation of the Ak-Chin and Gila River Indian Community lands, as well as TON's Florence Village and San Lucy Farms, pending consideration of issues unique
Areas redesignated as nonattainment are subject to the applicable requirements of part D, title I of the Act and will be classified as moderate by operation of law (see section 188(a) of the Act). Within 18 months of the effective date of this redesignation action, the State of Arizona must submit to the EPA an implementation plan for the area containing, among other things, the following requirements: (1) Provisions to assure that reasonably available control measures (including reasonably available control technology) are implemented within 4 years of the redesignation; (2) a permit program meeting the requirements of section 173 governing the construction and operation of new and modified major stationary sources of PM
The State will also be required to submit contingency measures (for the new PM
Specifically, this section of the CAA provides areas, that for the first time are designated nonattainment for a given air quality standard, with a one-year grace period before conformity applies with respect to that standard. Because this is the first time that this portion of Pinal County is being designated nonattainment for the PM
The new West Pinal PM
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA has determined that redesignation to nonattainment, as well as the establishment of SIP submittal schedules, would result in none of the effects identified in Executive Order 12866, section 3(f). Under section 107(d)(3) of the Act, redesignations to nonattainment are based upon air quality considerations. The redesignation, based upon air quality data showing that West Pinal is not attaining the PM
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601
Under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, the EPA has concluded that this rule is not likely to result in the promulgation of any Federal mandate that may result in expenditures of $100 million or more for State, local or tribal governments in the aggregate, or for the private sector, in any one year. It is questionable whether a redesignation would constitute a federal mandate in any case. The obligation for the state to revise its State Implementation Plan that arises out of a redesignation is not legally enforceable and at most is a condition for continued receipt of federal highway funds. Therefore, it does not appear that such an action creates any enforceable duty within the meaning of section 421(5)(a)(i) of UMRA (2 U.S.C. 658(5)(a)(i)), and if it does the duty would appear to fall within the exception for a condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I).
Even if a redesignation were considered a Federal mandate, the anticipated costs resulting from the mandate would not exceed $100 million to either the private sector or state, local and tribal governments. Redesignation of an area to nonattainment does not, in itself, impose any mandates or costs on the private sector, and thus, there is no private sector mandate within the meaning of section 421(7) of UMRA (2 U.S.C. 658(7)). The only cost resulting from the redesignation itself is the cost to the State of Arizona of developing, adopting, and submitting any necessary SIP revision. Because that cost will not exceed $100 million, this action (if it is a federal mandate at all) is not subject to the requirements of sections 202 and 205 of UMRA (2 U.S.C. 1532 and 1535). The EPA has also determined that this action would not result in regulatory requirements that might significantly or uniquely affect small governments because only the State would take any action as result of today's rule, and thus the requirements of section 203 (2 U.S.C. 1533) do not apply.
Executive Order 13132 requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely redesignates an area for Clean Air Act planning purposes and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The area redesignated in today's action does not include Indian country, and the EPA is deferring action on the Indian country that lies within or adjacent to the newly redesignated area, including the Ak-Chin Indian Reservation, the Pinal County portion of the Gila River Indian Reservation, and TON's Florence Village and San Lucy Farms. In formulating its further action on these areas, the EPA has been communicating with and plans to continue to consult with representatives of the Tribes, as provided in Executive Order 13175. Accordingly, the EPA has addressed Executive Order 13175 to the extent that it applies to this action.
This rule is not subject to Executive Order 13045 (“Protection of Children from Environmental Health Risks”) (62 FR 19885, April 23, 1997), because it is not an economically significant regulatory action based on health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. The EPA believes that the requirements of NTTAA are inapplicable to this action because they would be inconsistent with the Clean Air Act.
Today's action redesignates an area to nonattainment for an ambient air quality standard. It will not have disproportionately high and adverse effects on any communities in the area, including minority and low-income communities.
The Congressional Review Act, 5 U.S.C. section 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 30, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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, Intergovernmental relations, National parks, Particulate Matter, Wilderness areas.
42 U.S.C. 7401
Part 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
Federal Communications Commission.
Final rule; limited suspension of specific applications.
In this document, the Federal Communications Commission (Commission) announce a limited suspension of the acceptance and processing of certain applications for certain services operating in the 470-512 MHz (T-Band) spectrum band in order to maintain a stable spectral landscape while the Commission determines how to implement recent spectrum legislation contained in the Middle Class Tax Relief and Job Creation Act of 2012. The suspension applies only to applications for new or expanded use of T-Band frequencies.
This suspension is effective May 31, 2012. It has been enforced with actual notice since April 26, 2012.
Federal Communications Commission, 445 12th St. SW., Washington, DC 20554.
For additional information or questions, please contact Mr. Keith Harper of the Wireless Telecommunications Bureau, (202) 418-2759,
This is a summary of the Commission's
On April 26, 2012, the Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau released a
The filing and processing suspension applies only to applications for new or expanded use of T-Band frequencies for the following radio services in the 470-512 MHz band:
As such, effective immediately and until further notice, the Bureaus will not accept or process (1) applications for new licenses; (2) applications that seek to modify existing licenses by adding or changing frequencies or locations; (3) applications that seek to modify existing licenses by changing technical parameters in a manner that expands the station's spectral or geographic footprint, such as, but not limited to, increases in bandwidth, power level, antenna height, or area of operation; and (4) any other application that could increase the degree to which the 470-512 MHz band currently is licensed. We clarify that affected applications that are now pending will not be further processed until the Commission decides how to implement the Act, except that defective applications and applications in return status that are not timely resubmitted will be dismissed.
The decision to impose this suspension is procedural in nature, and therefore is not subject to the notice, comment, and effective date requirements of the Administrative Procedure Act.
This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork relief Act of 2002, Public Law 107-198,
The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection requirements and form revisions associated with the Commission's rules contained in the Third Report and Order, FCC 11-190, pertaining to the policies to promote rural radio service and to streamline allotment and assignment procedures. This notice is consistent with the Third Report and Order, which stated that the Commission would publish a document
47 CFR 73.3573 and FCC Form 301, published at 77 FR 2916, January 20, 2012, are effective July 2, 2012.
Cathy Williams on (202) 418-2918 or via email to:
This document announces that, on April 27, 2012, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Third Report and Order, FCC 11-190, published at 77 FR 2916, January 20, 2012. The OMB Control Number is 3060-0027. The Commission publishes this notice as an announcement of the effective date of the rule section and form revisions.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on April 27, 2012, for the information collection requirements contained in the Commission's rule at 47 CFR 73.3573 and form revisions to FCC Form 301.
Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0027.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Pub. L. 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
In the commercial FM context, the Tribal Priority is applied at the allotment stage of the licensing process. A Tribe or Tribal entity initiates the process by petitioning that a new Tribal Allotment be added to the FM Table of Allotments using the Tribal Priority. A petitioner seeking to add a Tribal Allotment to the FM Table of Allotments, like all other FM allotment proponents, must file FCC Form 301 when submitting its Petition for Rule Making. Under the new “threshold qualification” procedures adopted in the Third R&O, once a Tribal Allotment has been successfully added to the FM Table of Allotments using the Tribal Priority through an FM allocations rulemaking, the Commission will announce by Public Notice a Threshold Qualifications Window (“TQ Window”). During the TQ Window, any Tribe or Tribal entity that could qualify to add that particular Tribal Allotment may file an FCC Form 301 application for that Tribal Allotment. Such an applicant must demonstrate that it meets all of the eligibility criteria for the Tribal Priority, just as the original Tribal Allotment proponent did at the allotment stage. If it wishes its previously filed Form 301 application to be considered at this stage, then during the TQ Window the original Tribal Allotment proponent must submit notice to process its pending Form 301 application immediately.
If only one acceptable application is filed during the TQ Window, whether by the original Tribal allotment proponent submitting notification to process its previously filed Form 301, or by another qualified applicant, that application will be promptly processed and the Tribal Allotment will not be auctioned. In the event that two or more acceptable applications are filed during the TQ Window, the Commission will announce a limited period in which the parties may negotiate a settlement or bona fide merger, as a way of resolving the mutual exclusivity between their applications. If a settlement or merger is reached, the parties must notify the Commission and the staff will process the surviving application pursuant to the settlement or merger. If a settlement cannot be reached among the mutually exclusive applicants, the Tribal Allotment will be auctioned during the next scheduled FM auction. At that time, only the applicants whose applications were accepted for filing during the TQ Window, as well as the original Tribal Allotment proponent, will be permitted to bid on that particular Tribal Allotment. This closed group of mutually exclusive TQ Window applicants must comply with applicable established auction procedures.
In the event that no qualifying party applies during the TQ Window, and the original Tribal allotment proponent requests that its pending Form 301 application not be immediately processed, the Tribal Allotment will be placed in a queue to be auctioned in the normal course for vacant FM allotments. When the Tribal Allotment is offered at auction for the first time, only applicants meeting the “threshold qualifications” may specify that particular Tribal Allotment on FCC Form 175, Application to Participate in an FCC Auction (OMB Control No. 3060-0600). Should no qualifying party apply to bid or qualify to bid on a Tribal Allotment in the first auction in which it is offered, then the Tribal allotment will be offered in a subsequent auction and any applicant, whether or not a Tribal entity, may apply for the Tribal Allotment.
Consistent with actions taken by the Commission in the Third R&O, Form 301 has been revised to accommodate applicants applying in a TQ Window for
In addition, Form 301 contains a new option under Section I—General Information—Application Purpose, titled “New Station with Petition for Rulemaking to Amend FM Table of Allotments using Tribal Priority.” A petitioner seeking to add a Tribal Allotment to the FM Table of Allotments must file Form 301 when submitting its Petition for Rule Making. This new Application Purpose field will assist the staff in quickly identifying Form 301 applications filed in connection with a petition to add a Tribal Allotment and initiating the “threshold qualification” procedures.
This information collection is being revised to accommodate applicants applying in a Threshold Qualifications Window for a Tribal Allotment that had been added to the FM Table of Allotments using the Tribal Priority under the new “threshold qualifications” procedures adopted in the Third R&O.
OMB approved the information collection requirements and form revisions for this collection on April 27, 2012.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; fishery closure.
NMFS is closing the commercial fishery for porbeagle sharks. This action is necessary because landings for the 2012 fishing season have reached at least 80 percent of the available quota.
The commercial porbeagle shark fishery is closed effective 11:30 p.m. local time May 30, 2012, until, and if, NMFS announces in the
Karyl Brewster-Geisz or Peter Cooper, 301-427-8503; fax 301-713-1917.
The Atlantic shark fisheries are managed under the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and its implementing regulations found at 50 CFR part 635 issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Under § 635.5(b)(1), shark dealers are required to report to NMFS all sharks landed every two weeks. Dealer reports for fish received between the 1st and 15th of any month must be received by NMFS by the 25th of that month. Dealer reports for fish received between the 16th and the end of any month must be received by NMFS by the 10th of the following month. Under § 635.28(b)(2), when NMFS projects that fishing season landings for a species group have reached or are about to reach 80 percent of the available quota, NMFS will file for publication with the Office of the Federal Register a closure action for that shark species group that will be effective no fewer than 5 days from the date of filing. From the effective date and time of the closure until NMFS announces in the
On January 24, 2012 (77 FR 3393), NMFS announced that the porbeagle shark fishery for the 2012 fishing year was open and the available porbeagle shark quota was 0.7 metric tons (mt) dressed weight (dw) (1,585 lb dw). Dealer reports through May 17, 2012, indicate that 0.67 mt dw or 93.3 percent of the available quota for porbeagle sharks has been landed. Dealer reports received to date indicate that 4.3 percent of the quota was landed from the opening of the fishery on January 24, 2012, through March 6, 2012; 12.2 percent of the quota was landed from March 7, 2012, through March 28, 2012; 5.7 percent was landed from March 29, 2012, through April 17, 2012; and 71.1 percent of the quota was landed from April 18, 2012, through May 17, 2012. The fishery has reached 93.3 percent of the quota, which exceeds the 80 percent limit specified in the regulations. Accordingly, NMFS is closing the commercial porbeagle shark fishery as of 11:30 p.m. local time May 30, 2012. This closure does not affect any other shark fishery.
During the closure, retention of porbeagle sharks is prohibited for persons fishing aboard vessels issued a commercial shark limited access permit under 50 CFR 635.4, unless the vessel is properly permitted to operate as a charter vessel or headboat for HMS and is engaged in a for-hire trip, in which case the recreational retention limits for sharks and “no sale” provisions apply (50 CFR 635.22(a) and (c)). A shark dealer issued a permit pursuant to § 635.4 may not purchase or receive porbeagle sharks from a vessel issued an Atlantic shark limited access permit (LAP), except that a permitted shark dealer or processor may possess porbeagle sharks that were harvested, off-loaded, and sold, traded, or bartered, prior to the effective date of the closure and were held in storage. Under this closure, a shark dealer issued a permit pursuant to § 635.4 may, in accordance with state regulations, purchase or receive a porbeagle sharks if the sharks were harvested, off-loaded, and sold, traded, or bartered from a vessel that fishes only in state waters and that has not been issued an Atlantic Shark LAP, HMS Angling permit, or HMS Charter/Headboat permit pursuant to § 635.4.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds that providing for prior notice and public comment for this action is impracticable and contrary to the public interest because the fishery is currently underway, and any delay in this action would cause overharvest of the quota and be inconsistent with management requirements and objectives. If the quota is exceeded, the affected public is likely to experience reductions in the available quota and a lack of fishing opportunities in future seasons. For these reasons, the AA also finds good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553 (d)(3). This action is required under § 635.28(b)(2) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of closure.
NMFS is opening directed fishing for northern rockfish in the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2012 total allowable catch (TAC) of northern rockfish in the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), May 25, 2012, through 2400 hrs, A.l.t., December 31, 2012. Comments must be received at the following address no later than 4:30 p.m., A.l.t., June 11, 2012.
You may submit comments on this document, identified by RIN 0648-XC052, by any of the following methods:
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Steve Whitney, 907-586-7269.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
Pursuant to the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012), NMFS closed the directed fishery for northern rockfish under 679.2(d)(1)(iii).
As of May 23, 2012, NMFS has determined that approximately 4,308 metric tons of northern rockfish remain unharvested in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C) and (a)(2)(iii)(D), and to fully utilize the 2012 TAC of northern rockfish in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for northern rockfish in the BSAI. This will enhance the socioeconomic well-being of harvesters in this area. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of northern rockfish in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of northern rockfish in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of May 23, 2012.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for northern rockfish in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until June 11, 2012.
This action is required by§ 679.20 and § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking.
The U.S. Department of Energy (DOE) is proposing to revise and expand its existing regulations governing the use of particular methods as alternatives to testing for the purposes of certifying compliance with the applicable energy conservation standards and the reporting of related ratings for certain consumer products and commercial and industrial equipment covered by energy conservation standards.
DOE will accept comments, data, and information regarding this notice of proposed rulemaking (NOPR) no later than July 2, 2012. See section V, “Public Participation,” of this NOPR for details.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
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Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: 202-586-6590. Email:
Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or, in context, “the Act”) sets forth a variety of provisions designed to improve energy efficiency. Part A of Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation Program for Consumer Products Other Than Automobiles. The National Energy Conservation Policy Act (NECPA), Pub. L. 95-619, amended EPCA to add Part A-1 of Title III, which established an energy conservation program for certain industrial equipment. (42 U.S.C. 6311-6317)
Under EPCA, this program consists essentially of four parts: (1) Testing; (2) labeling; (3) Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for labeling consumer products, and DOE implements the remainder of the program. The testing requirements consist of test procedures that manufacturers of covered products and equipment must use (1) as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) for making representations about the efficiency of those products and equipment. Similarly, DOE must use these test requirements to determine whether the products comply with any relevant standards promulgated under EPCA. For certain consumer products and commercial equipment, DOE's existing testing regulations include allowing the use of an alternative efficiency determination method (AEDM) or an alternative rating method (ARM), in lieu of actual testing, to simulate the energy consumption or efficiency of certain basic models of covered products under DOE's test procedure conditions.
AEDMs and ARMs are computer modeling or mathematical tools that predict the performance of non-tested basic models. They are derived from mathematical models and engineering principles that govern the energy efficiency and energy consumption characteristics of a type of covered product. (In the context of this discussion, the term “covered product” applies both to consumer products and commercial equipment that are covered under EPCA.) These computer modeling and mathematical tools, when properly developed, can provide a relatively straight-forward and reasonably accurate means to predict the energy usage or efficiency characteristics of a basic model of a given covered product.
Where authorized by regulation, AEDMs and ARMs enable manufacturers to rate and certify their basic models by using the projected energy use or energy efficiency results derived from these simulation models. DOE has authorized the use of AEDMs or ARMs for certain covered products that are difficult or expensive to test in an effort to reduce the testing burden faced by the manufacturers of expensive
DOE believes other similar products that must currently be rated and certified through testing, such as commercial refrigeration equipment, automatic commercial ice makers, beverage vending machines, walk-in cooler and freezer refrigeration systems and small electric motors, could also be rated and certified through the use of computer or mathematical modeling. Permitting the use of these modeling techniques for certification and rating purposes would require DOE to explicitly permit manufacturers to use an AEDM or ARM through regulation. DOE sought comment on this topic and other issues in a Request for Information (RFI), which was published in the
The RFI requested suggestions, comments, and information relating to the Department's intent to expand and revise its existing AEDM and ARM requirements for consumer products and commercial and industrial equipment covered under EPCA. This rulemaking is intended to facilitate DOE's consideration of procedural changes to its requirements for AEDMs and ARMs in an effort to advance the effective implementation of DOE's conservation standards and regulations. The comment period for written submissions on the RFI closed on May 18, 2011. This notice proposes to modify those regulations pertaining to the AEDM and ARM requirements within Part 429 of Title 10 of the Code of Federal Regulations (CFR). The Department's goal is to establish a uniform, systematic, and fair approach to the use of these types of modeling techniques that will enable DOE to ensure that products in the marketplace are correctly rated—irrespective of whether they are subject to actual physical testing or are rated using modeling—without unnecessarily burdening regulated entities.
DOE received comments from 21 interested parties, including manufacturers, trade associations, and advocacy groups. Specifically, Table II.1 lists the entities that submitted comments and their affiliation. These comments are discussed in more detail below, and the full set of comments can be found at:
DOE is contemplating combining AEDMs and ARMs under a single term to avoid confusion, particularly with respect to air conditioning products that currently are subject to different regulations depending on whether the unit is consumer or commercial. The RFI sought comment on the need to have two alternatives to testing or if both alternative methods could be covered by one term with the inclusion of additional product specific requirements.
Both Carrier and AHRI believe the distinction is necessary because ARMs require the highest sales volume tested combination for the indoor coil, while AEDMs are better for low volume, high variety commercial products where testing multiple samples is not feasible. (Carrier, No. 7.1 at p. 2; AHRI, No. 17.1 at p. 3) Lennox and Mitsubishi agreed and pointed out that the two methods are designed for different purposes, applications and capacity ranges. (Lennox, No. 16.1 at p. 1; Mitsubishi, No. 19.1 at p. 1) PVI Industries provided a similar observation that an ARM allows for adjustments to address a shortcoming of the test method, while AEDMs are calculated substitutes for testing. (PVI Industries, No. 15.1 at p. 3)
However, not all stakeholders agreed with the need for separately named methods. Hussmann commented that only AEDMs are needed, and Goodman stated that in order to reduce confusion there should only be one method, which should be ARMs because they have been in place for years. (Hussmann, No. 10.1 at p. 1; Goodman, No 2.1 at p. 1)
DOE tentatively agrees with the commenters suggesting a single term to apply to those modeling techniques used to rate and certify any covered products that would be permitted to use these alternate methods. DOE intends to use AEDM, instead of ARM, to refer to these methods because the provisions DOE proposes to adopt are more similar to the current provisions for AEDMs. DOE also notes that the term ARM is used only for simulations used by manufacturers of residential air conditioners and heat pumps, whereas AEDMs are used by a wider range of industries. Given that these two methods are conceptually identical, DOE is applying the term “AEDM” to refer to any simulation method used to determine the efficiency or energy usage of a given product or equipment. DOE, however, agrees with Carrier, AHRI, Lennox, and Mitsubishi in that there are product-specific considerations that should guide the development and application of an AEDM. In response to these comments, DOE is proposing product-specific substantiation requirements in this notice which DOE believes will address the concerns about the current differences between the two methods.
In light of the approval process currently in place for ARMs, DOE's RFI sought comment regarding the feasibility of applying a similar requirement for AEDMs or, alternatively, eliminating the approval process for ARMs. EarthJustice supported the adoption of a prior approval-type process. (EarthJustice, No. 21.1 at p. 2) American Panel also supported this approach and noted that it would give both manufacturers and DOE a level of security regarding the development of testing simulations. (American Panel, No. 3.1 at p. 2) Zero Zone echoed this view, expressing support for a “pre-approved” option since it would reduce the likelihood of a given manufacturer using an “unapproved” AEDM. (Zero Zone, No. 18.1 at p. 7) Similarly, both Hussmann and Goodman asserted that pre-approval would provide manufacturers with confidence in their programs. (Hussmann, No. 10.1 at p. 2; Goodman, No. 2.1 at p. 1) Additionally, Bradford White viewed pre-approval as a way to prevent certain manufacturers from having an unfair advantage by incorrectly rating their products. (Bradford White, No. 5.1 at p. 1)
Despite these expressions of support for a pre-approval process, others identified potential problems with this approach. NEMA stated that there is no perceived benefit in DOE imposing an additional burden on both the manufacturer and itself. Requiring prior approval would, in its view, place an inordinate burden on manufacturers. (NEMA, No. 20.1 at pp. 3-4; NEMA, No. 22.1 at p. 2) Modine commented that there is no need for pre-approval because it is the manufacturer's responsibility to produce and certify products that comply. (Modine, No. 8.1 at p. 2) Heatcraft remarked that a pre-approval requirement is unnecessary and the imposition of one would likely overwhelm DOE by virtue of the number of submitted pre-approval requests. (Heatcraft, No. 11.1 at p. 3) Carrier expressed concern with the potential burden involved with a pre-approval process and indicated that requiring pre-approval can result in time-to-market delays (i.e., delays in getting new products to market for sale). (Carrier, No. 7.1 at p. 6) This view was supported by Lennox, Traulsen, PVI Industries, AHRI, Zero Zone, and Mitsubishi. (Lennox, No. 16.1 at p. 2; Traulsen, No. 9 at p. 4; PVI Industries, No. 15.1 at p. 4; AHRI, No. 17.1 at p. 4; Zero Zone, No. 18.1 at p. 7; Mitsubishi, No. 19.1 at pp. 2-3) Further, Structural Concepts expressed concern that pre-approval would limit innovation with respect to the introduction of new designs and technologies, while PVI Industries mentioned that pre-approval would discourage product innovation. (Structural Concepts, No. 26.1 at p. 2; PVI Industries, No. 15.1 at p. 4)
While a broad AEDM pre-approval process could help provide manufacturers with an added sense of security that their AEDMs comply with DOE's requirements, the available facts indicate that this added benefit would be unlikely to outweigh both the additional burden placed on manufacturers and DOE as well as the drawbacks inherent with increased market delays created by requiring a pre-approval process. DOE notes that the substantiation process, an integral part of the validation of the AEDM, should provide manufacturers and consumers with confidence in ratings derived from the AEDM. The substantiation process requires a manufacturer to test several basic models to validate the accuracy of the AEDM, making DOE pre-approval unnecessary. Furthermore, DOE uses a self-certification process for most covered products, whereby manufacturers are responsible for ensuring that the testing is done in accordance with DOE's regulations. The Department does not review all manufacturers' test data to confirm that the testing was performed correctly and that the basic model was rated correctly; therefore, an approval process for AEDMs could be construed as an advantage to those manufacturers who are permitted to use them. In light of these factors, as well as the potential risks that manufacturers face for using an inaccurate or otherwise faulty AEDM, which includes civil penalties and prohibitions on marketing noncompliant products, DOE is not proposing to add a pre-approval process for AEDMs and is proposing to drop the current pre-approval requirement for methods used to rate residential central air conditioners and heat pumps. While DOE does not plan to review AEDMs prior to their use, DOE may request the records underlying the use of an AEDM at any time. 10 CFR 429.71. Manufacturers must retain any records
DOE requests comment on its proposal to continue omitting a pre-approval process for AEDMs, and to no longer require pre-approval for rating methods applied to residential central air conditioners and heat pumps. (See Issue 1 under “Issues on Which DOE Seeks Comment” in section IV.B of this NOPR.)
Under the current DOE regulations, manufacturers of five types of commercial equipment are permitted to use AEDMs to generate the certified ratings of untested basic models, while manufacturers of residential central air conditioners and heat pumps are permitted to use ARMs to generate the certified ratings of untested basic models. As part of this rulemaking, DOE is proposing to expand the types of commercial equipment that would be addressed by these proposed AEDM provisions. However, in the consumer product context, DOE has tentatively decided not to expand the application of AEDMs beyond central air conditioners and heat pumps.
American Panel commented that walk-in coolers and freezers (collectively, “walk-ins” or “WICFs”) should be allowed to use AEDMs for determining the envelope heat transfer characteristics and in selecting the condensing unit and evaporator coil. (American Panel, No. 3.1 at p. 1) Similarly, Zero Zone, Hussmann, PVI Industries, and Structural Concepts remarked that commercial refrigeration equipment (CRE) would also benefit from the use of AEDMs. (Zero Zone, No. 18.1 at p. 2; Hussmann, No. 10.1 at p. 1; PVI Industries, No. 15.1 at p. 2; Structural Concepts, No. 26.1 at p. 2) PVI Industries also suggested extending AEDM coverage to automated commercial ice-makers (ACIMs) and residential water heaters. (PVI Industries, No. 15.1 at p. 2) AHRI concurred with the need to permit the use of AEDMs for walk-ins, CRE units, ACIMs, and commercial water heaters but also indicated that manufacturers of residential boilers and water heaters, furnaces, pool heaters and direct heating equipment should also be permitted to use AEDMs to certify and rate those products. (AHRI, No. 17.1 at p. 2) Zero Zone and Structural Concepts went further and favored permitting the use of AEDMs for all products. (Zero Zone, No. 18.1 at p. 2; Structural Concepts, No. 26.1 at p. 1) Scotsman asserted that AEDMs are not cost-effective for ACIMs because some ACIMs have non-steady operation, which makes them difficult to model with accuracy. It added that testing is not overly burdensome for ACIM manufacturers to conduct. (Scotsman, No. 6.1 at p. 1)
Numerous commenters also stressed that DOE should continue permitting manufacturers to use AEDMs or ARMs with respect to those products that the agency currently permits to be certified and rated with these alternative methods. (Carrier, No. 7.1 at p. 1; Mitsubishi, No 19.1 at p. 1; Heatcraft, No. 11.1 at p. 1; Lennox, No. 13.1 at p. 2; PVI Industries, No. 15.1 at p. 2; Lennox, No. 16.1 at p. 1; AHRI, No. 17.1 at pp. 2,4; NEMA, No. 20.1 at p. 2; NEMA, No. 22.1 at p. 2; Bradford White, No 5.1 at p. 1) Modine, NRDC, ACEEE, ASAP and Traulsen did not provide product-specific recommendations, but commented that large, low-volume, custom equipment manufacturers would benefit from AEDM use. (Modine, No. 8.1 at p. 1; Traulsen, No. 9.1 at p. 2; Joint Comment, No. 24.1 at p. 2)
DOE has conducted a number of rulemaking activities examining the manner in which manufacturers of a variety of products test and rate their products. These activities have addressed products such as CRE, ACIMs, small electric motors, beverage vending machines (BVMs), and walk-ins. Based on substantial amounts of information that DOE has collected through these rulemaking activities, DOE ascertained that many basic models of these product types have low sales volumes or are custom-built, meaning that manufacturers may have a large number of basic models that they would need to test in order to certify compliance under DOE's current requirements. Given the potential for a high testing burden, manufacturers of these products may benefit from the use of an AEDM since it could be used to simulate testing under DOE test conditions and the results could then be used to certify compliance in lieu of conducting the testing that is currently required. Adopting this approach will likely significantly reduce manufacturer testing burdens by minimizing the number of units that a manufacturer must physically test in order to certify all of the basic models offered for sale in the U.S. As a result, in addition to those products that are already permitted to be rated and certified using modeling methods (i.e., commercial HVAC and WH equipment, electric motors, and distribution transformers), DOE is proposing to allow the manufacturers of CRE, ACIMs, small electric motors, and BVMs to use AEDMs to rate and certify their products. Permitting this option should enable these manufacturers to reduce the overall testing burdens that they would otherwise face.
Additionally, DOE is proposing to allow the use of AEDMs for WICFs but is limiting this proposal to apply only to the WICF refrigeration system. As with other types of commercial equipment for which DOE is proposing to expand the voluntary use of AEDMs, WICF refrigeration systems are low-volume and custom-made for the specific installation and could be accurately rated using a computer simulation to predict their behavior under DOE test conditions. DOE is not proposing to permit a similar option for other WICF components. WICF panels are relatively simple pieces of equipment and results from a basic model of a given panel can be extrapolated to many other panel basic models under the provisions of the test procedure. As for WICF doors, the DOE test procedure already provides for the use of certain modeling techniques that are approved by the National Fenestration Rating Council (NFRC), which, in DOE's view, makes a parallel AEDM provision for these components unnecessary. Consequently, DOE's proposal is to expand the use of AEDMs to WICF refrigeration systems because manufacturers of WICF refrigeration systems would benefit from the reduced testing burden that the proposal would provide.
DOE requests comment on its proposal to expand the use of AEDMs to other types of commercial equipment. (See Issue 2 under “Issues on Which DOE Seeks Comment” in section IV.B of this NOPR.)
In addition, DOE is proposing to retain its existing regulations that allow for the use of simulation or mathematical models to predict the certified ratings of residential central air conditioners and heat pumps. The split-system air conditioner and heat pump market allows the pairings of a variety of different indoor and outdoor models for installation in a residence. This approach results in a proliferation of basic models for which a manufacturer must determine the correct rating to certify compliance to the Department. If all of these basic model combinations had to be tested, manufacturers of CACs and CHPs would likely face significant increased testing burden. DOE believes it is necessary to continue to allow the use of alternatives to testing to predict the performance of all the different combinations of CACs and CHPs that are offered for sale in the U.S. DOE is
As for those comments suggesting that DOE expand the use of AEDMs to other consumer products such as residential water heaters and furnaces, DOE does not agree with this approach. Basic models of consumer products such as water heaters and furnaces are typically high-volume, with little to no customization from model-to-model. Many of these products can be found off-the-shelf or are regularly stocked by distributors. As a result, manufacturers of these products do not face the same challenges of testing and rating potentially hundreds of different variations as faced by manufacturers of many commercial products. Unlike manufacturers of many types of commercial equipment that had apparently not performed the required testing of each basic model, manufacturers of consumer products have been regularly conducting the testing necessary to certify compliance to the Department without the use of simulation tools. The Department is unaware of any undue burden caused by testing a large number of basic models, or an issue with obtaining two samples for testing, due to the high-volume nature of the manufacturing for these consumer products.
Because AEDMs are models based on engineering principles, it may be possible to use a single AEDM to simulate testing of basic models from multiple product classes. Since many of the engineering principles underlying the performance characteristics of different pieces of equipment are the same, DOE believes it is reasonable for a manufacturer to develop an AEDM that could apply across multiple product classes and accurately simulate the energy efficiency or energy use of various basic models. An AEDM used to model energy consumption across multiple product classes, however, will be significantly more complex and will have to account for more variables than an AEDM used to model energy consumption within a single product class. While DOE does not want to restrict manufacturer development and use of AEDMs, the inherent complexity of an AEDM used to rate basic models across multiple product classes requires sufficient safeguards to ensure the accuracy of an AEDM with respect to predicting the energy consumption of a basic model from any product class for which the AEDM will be used. Consequently, DOE sought comment on the best approach to verify the accuracy and applicability of AEDMs and ARMs across multiple product classes without unduly burdening manufacturers.
All interested parties who commented on this issue agreed that AEDMs and ARMs can and should be used across multiple product classes. (Goodman, No. 2.1 at p. 1; American Panel, No. 3.1 at p. 2; Bradford White, No. 5.1 at p. 1; Carrier, No. 7.1 at p. 2; Modine, No. 8.1 at p.1; Traulsen, No. 9.1 at p. 2; Hussmann, No. 10.1 at pp. 1-2; Heatcraft, No. 11.1 at p. 2; Lennox, No. 13.1 at p. 2; PVI Industries, No. 15.1 at p. 3; Lennox, No. 16.1 at p. 2; AHRI, No. 17.1 at p. 3; Zero Zone, No. 18.1 at p. 7; Mitsubishi, No. 19.1 at p. 2; NEMA, No. 20.1 at p. 3; Structural Concepts, No. 26.1 at p. 1) However, stakeholders were divided about the need to substantiate the method for every product class. Carrier, Hussmann, AHRI, Mitsubishi and Structural Concepts all commented that the amount of required testing should not depend on the number of covered product classes, while Modine, Lennox, and NEMA noted that AEDMs and ARMs should be verified for each covered product class. (Carrier, No. 7.1 at p. 2; Hussmann, No. 10.1 at pp. 1-2; AHRI, No. 17.1 at p. 3; Mitsubishi, No. 19.1 at p. 2; Structural Concepts, No. 26.1 at p. 1; Modine, No. 8.1 at p. 1; Lennox, No. 13.1 at p. 2; NEMA, No. 20.1 at p. 3)
While DOE acknowledges that AEDMs and ARMs could be applied across product classes, differences in products and operating conditions may hinder the capability of AEDMs to rate products from multiple product classes within the necessary tolerances. DOE believes that manufacturers can build AEDMs that would apply across a variety of product classes and maintain the appropriate tolerances proposed in this NOPR, but DOE also believes that AEDMs should be substantiated in such a manner as to demonstrate that capability. DOE tentatively agrees with the comments, made by Modine, Lennox and NEMA, supporting verification of an AEDM for each product class to which the AEDM will be applied. Consequently, DOE is proposing to require, as part of the substantiation process, testing of at least one basic model from each DOE product class to which the AEDM is to be applied in addition to the other requirements, which are discussed in section II.C. DOE does not believe this added requirement will significantly increase testing burden because, as stated by Goodman, manufacturers should already be continuously validating their AEDMs. (Goodman, No. 2.1 at p. 1) DOE may, however, amend aspects of this proposal based on information and feedback presented by interested parties or that DOE discovers through further research of this issue in preparation of any final rule that may be issued. As a result, DOE urges all interested parties to provide specific and detailed information regarding the proposed substantiation process as well as specific requirements that the agency should consider when developing the final rule.
DOE requests comment on its proposal to require at least one basic model from each product class be tested to substantiate the AEDM. DOE is particularly interested in whether additional clarification is needed for manufacturers of certain covered products to determine all the applicable product classes that would need to be tested to substantiate the AEDM. As part of these comments, the Department is interested in receiving feedback on how manufacturers currently develop any simulation tools to ensure they are applicable across a wide range of product classes. (See Issue 3 under “Issues on Which DOE Seeks Comment” in section IV.B of this NOPR.) Based on these comments and data, DOE may consider and adopt other substantiation criteria from those contained in today's proposal that aid manufacturers in identifying the applicable number of product classes required for testing.
Currently, DOE requires that manufacturers test a specified number of basic models, apply the AEDM to those same basic models, and compare the results. In order to substantiate the AEDM—i.e., validate the accuracy of the model—the results obtained from the AEDM output must be within a specified tolerance of the results obtained from testing. The comparison is generally required between test results for each individual basic model and the AEDM output for the same basic model, as well as between the average of the test results for all tested basic models, and the average of the AEDM output for all tested basic models. For electric motors, a comparison is only required between individual test results and individual AEDM outputs for the basic models tested. For commercial HVAC and water heaters, the AEDM output for each basic model must be within five percent of the tested value,
Interested stakeholders provided numerous suggestions regarding the appropriate product-specific tolerances. Bradford White and PVI Industries commented that tolerances for commercial water heaters should be five percent because of instrumentation tolerances as well as lab to lab variation. (Bradford White, No. 5.1 at p. 2; PVI Industries, No. 15.1 at p. 5) AHRI commented that the one percent overall tolerance for commercial HVAC and water heaters that currently applies was not appropriate and should be relaxed, while Heatcraft indicated that a one percent overall tolerance is not realistic for walk-ins because of equipment tolerances and testing variation inherent in the test procedure. (AHRI, No. 17.1 at p. 5; Heatcraft, No. 11.1 at p. 4) Additionally, AHRI commented in a later proposal that the individual tolerance for residential and commercial HVAC and WH equipment, ACIMs, walk-ins and commercial refrigeration equipment should be 5 percent. (AHRI, No. 31.1 at p. 3) Regarding HVAC products, Mitsubishi remarked that the tolerance should be 5 percent, and both First Company and Carrier concurred with this suggested level. (Mitsubishi, No. 19.1 at p. 4; First Company, No. 14.1 at p. 3; Carrier, No. 7.1 at p. 5) However, Carrier went further and commented that the overall average of AEDM ratings should be within five percent of the overall average of tested ratings. (Carrier, No. 7.1 at p. 5) NEMA pointed out that electric motor tolerances may need to be tightened to test in accordance with Institute of Electrical and Electronics Engineer (IEEE) Standard 114 or Standard 112 (the two protocols used to measure the efficiency of electric and small electric motors) because these test methods are based on the measured output power divided by input power. (NEMA, No. 20. 1 at pp. 5-6) NEMA also suggested DOE should limit the tolerance for overall averages at three percent for distribution transformers and that the tolerance for individual ratings should allow the AEDM output to be up to 5 percent more efficient than the test results. It added, however, that the tolerance should not apply if the AEDM output was conservative. (NEMA, No. 22.1 at p. 3) Similarly, Modine commented that the output from AEDMs should be permitted for rating purposes only if the AEDM output is no more than five percent more efficient than the tested value. (Modine, No. 8.1 at p. 2) None of these commenters explained the basis for their recommendations.
With respect to CREs, commenter views were even more varied. Traulsen recommended a 15 percent tolerance, while Hussmann suggested that a ten percent tolerance was appropriate. Zero Zone remarked that the tolerance should be five percent. (Traulsen, No. 9.1 at p. 4; Hussmann, No. 10.1 at p. 3; Zero Zone, No. 18.1 at p. 11) None of the commenters specified why they believed their recommended tolerance was appropriate.
Regarding potential tolerance levels for CRE-related AEDMs, there are no technical reasons that would compel the application of larger or less stringent tolerances for these products compared to others. In view of this, and the complete absence at this time of any contradictory data or information that would justify a different approach, DOE is proposing to set individual tolerances between the test results of a basic model and AEDM output for that basic model for CREs at five percent. For the same reasons, DOE is proposing to set this same tolerance for refrigeration systems of walk-ins, BVMs, ACIMs, and residential central air conditioners and heat pumps. DOE is not currently planning to amend the tolerances for electric motors and proposes to apply the same ten percent tolerance to small electric motors.
With respect to distribution transformers, DOE agrees with NEMA's view in favor of an overall tolerance, but disagrees with NEMA's suggestion that the AEDM outputs for individual basic models should be limited only to being no more than five percent more efficient than the test results for that basic model. DOE is concerned with confirming the accuracy of an AEDM and having no tolerance for AEDM outputs that are more conservative than the test results could potentially allow for less accurate results from the AEDMs. Consequently, DOE intends to retain the current tolerance on how much the AEDM output can diverge from the test results.
With regard to commercial HVAC equipment, DOE agrees with stakeholders who claimed that the one percent overall average tolerance was unnecessarily stringent. However, DOE disagrees with Carrier's comment suggesting that the overall average tolerance should be five percent. Testing different types of commercial equipment has similar limitations with respect to instrumentation and testing variation in the DOE test procedures as found for other product types, and applying a consistent tolerance across all of these covered products (excluding electric and small electric motors) would help ensure that a consistent, predictable and accurate method is used by manufacturers. This is also seen in the consistency between the certification statistics of different types of commercial air conditioning and heating equipment. Consequently, DOE is proposing to expand this three percent average tolerance to all products that use AEDMs. The overall averages are calculated using the following equation:
Figure C.1, below, provides a visual representation of DOE's proposed substantiation tolerances for all products proposed for AEDM use, excluding motors and small electric motors.
DOE seeks product specific comments and supporting data on these proposed overall and individual tolerance levels by product type. Specifically, DOE seeks data showing that the variability seen in the manufacturing processes, test instrumentation, and testing procedures merits consideration and adoption of different tolerances. (See Issue 4 under “Issues on Which DOE Seeks Comment” in section IV.B of this NOPR.) Based on these data, DOE may consider and adopt different tolerance levels from those contained in today's proposal.
In addition to achieving certain tolerances with their AEDMs, manufacturers are required to test a specific number of basic models to demonstrate that the AEDM is sufficiently accurate for determining the ratings of their products. Currently, the required number of models and units that must be tested varies by product and are as follows: Six basic models for commercial HVAC and water heaters; 25 units for distribution transformers (five units of five different basic models); five basic models for electric motors; and four mixed systems for residential central air conditioners and heat pumps. DOE received considerable feedback from interested parties on the necessary sample sizes for these products as well as for other products that manufacturers may be permitted to certify and rate using an AEDM as part of today's proposal.
Bradford White suggested that the appropriate sample size for commercial water heaters is two units, with the smallest and largest input capacity models being tested, and that a manufacturer should not be required to substantiate an AEDM using a number of basic models that a manufacturer does not have in stock. (Bradford White, No. 5.1 at p. 2) PVI agreed that testing two water heaters was adequate for AEDM substantiation. (PVI Industries, No. 15.1 at p. 3) Similarly, Structural Concepts recommended two units as the necessary sample size for CRE, while Hussmann suggested one unit per DOE product class to which the AEDM is applied. (Structural Concepts, No. 26.1 at p. 3; Hussmann, No. 10.1 at p. 3) Regardless of sample size, American Panel cautioned DOE to be aware of the increased cost to manufacturers of testing more units. (American Panel, No. 3.1 at p. 3) NEMA observed that the current sample size and testing for both electric motors and transformers is appropriate. (NEMA, No. 20.1 at p. 4; NEMA, No. 22.1 at p. 3) Carrier mentioned that a sample of three basic models is sufficient and added that DOE should consider permitting manufacturers to decide how to substantiate their AEDMs and how to select models—other than the highest sales volume tested combination—in order to enable them to validate an AEDM across the manufacturer's entire product range. (Carrier, No. 7.1 at p. 4) AHRI submitted a proposal that the sample size for residential and commercial HVAC and WH equipment, ACIMs, walk-ins and CRE should be two units. (AHRI, No. 31.1 at p. 2) However, Lennox remarked that the current sample size for ARMs is reasonable, while Modine supported leaving the decision of how to substantiate an AEDM to the manufacturer. (Lennox, No. 13.1 at p. 4; Modine, No. 8.1 at p. 4) Zero Zone was alone in believing that AEDMs do not need to be substantiated at all. (Zero Zone, No. 18.1 at p. 10)
DOE is reluctant to omit a substantiation process or to leave this process entirely to manufacturer discretion without some form of reasonable confirmation regarding the accuracy and validity of the underlying AEDM. While DOE is sensitive to the costs associated with equipment testing and the fact that some manufacturers may have a high degree of familiarity with how to substantiate their AEDMs, DOE wants to ensure that the AEDM's accuracy is confirmed across the entire range of product classes to which it is applied. Additionally, DOE wants to ensure consistency with regard to the minimum testing requirements needed to substantiate the AEDM across manufacturers of a given equipment type to provide a fair and consistent approach in allowing the use of simulations and mathematical models. For these reasons, DOE is proposing changes to the selection of models used to substantiate an AEDM. Consequently, in DOE's view, to ensure this accuracy, a minimum amount of testing should be conducted to substantiate a given AEDM. Manufacturers may always elect to conduct additional testing to validate the accuracy of the AEDM.
To this end, DOE proposes that at least five basic models be tested to substantiate an AEDM with a minimum of one unit tested of each basic model for all products except distribution transformers. With regard to distribution transformers, DOE proposes to retain the
Because physical size or capacity is another characteristic that can have a significant effect on efficiency, DOE agrees with Bradford White's suggestion to test both the smallest and largest capacity units covered by the AEDM, where applicable. DOE recognizes, however, that the burden associated with a requirement to test the largest capacity basic model offered may be prohibitive. Therefore, DOE is proposing that the models tested for substantiation include the smallest and largest capacity basic models, or a basic model with a capacity within 25% of the largest capacity basic model, for all products where physical size (e.g., total display area, vendible capacity, rated storage volume, etc.) or capacity (e.g., heating, cooling, etc.) is an integral part of the test procedure and energy use or efficiency of the product. Further, DOE believes that the basic models that meet these capacity criteria should be from the product class that has the highest sales volume because DOE believes these products would be most representative, less likely to be highly customized or built-to-order, and less costly to test.
In addition to this requirement to test models from the highest sales volume product class, DOE proposes that the tested units include the basic model with the highest sales volume in the previous year or is expected to have the highest sales volume as one of the five tested basic models. Lastly, to ensure that the AEDM is substantiated for current, up-to-date models, DOE proposes to require that test data used for substantiation meet the applicable energy conservation standards in effect at the time that the AEDM is being used. Consequently, when the compliance date for amended standards comes into effect, DOE is proposing that manufacturers may need to re-substantiate the AEDM depending on the efficiencies of the basic models used to originally substantiate the AEDM. Table C.1 below summarizes the requirements proposed in this section.
DOE seeks comment on the proposed criteria for selecting basic models and the number of basic models that should be required for substantiation as well as whether the differences in testing requirements for distribution transformers are appropriate or necessary. (See Issue 5 under “Issues on Which DOE Seeks Comment” in section IV.B of this NOPR.)
To substantiate their AEDMs pursuant to DOE's current regulations, manufacturers of commercial HVAC and water heaters must first apply the AEDM to three or more basic models, which then must be tested. Following this initial round of testing, manufacturers must apply the AEDM to at least three additional models and test them as well. For each round of testing, the ratings predicted by the AEDM must be within a specified percentage of the tested ratings. 10 CFR 429.70. These products are the only products which have to undergo two rounds of testing to substantiate the AEDM. Consequently, DOE is considering altering the number of testing rounds to make AEDM substantiation requirements for these products align with those for other products and sought comment in the RFI on the benefits of a second round of testing because the available data indicate that a reduction in testing burden consistent with DOE's proposal would be unlikely to affect the accuracy of the predicted efficiency levels provided by the appropriate AEDM.
Both Carrier and PVI Industries mentioned that one round of testing is sufficient, while Mitsubishi remarked that two sets of testing do not add any significant benefit. (Carrier, No. 7.1 at p. 6; PVI Industries, No. 15.1 at p. 6; Mitsubishi, No. 19.1 at p. 4) Considering DOE's proposal to change the number of models necessary for substantiation of an AEDM for commercial HVAC and water heaters, DOE believes that the AEDM would be substantiated for every applicable product class following one round of substantiation testing. Given that the manufacturer may test more than the minimum number of basic models during substantiation, DOE believes that a single round of testing is sufficient. Additionally, a manufacturer is free to conduct further testing during the lifetime of an AEDM that is in addition to those substantiation tests being proposed. Requiring this added testing, however, is unnecessary since DOE believes manufacturers are best positioned to assess whether they need to run additional substantiation testing for newly designed or redesigned basic models on a case-by-case basis. DOE is proposing a framework that allows manufacturers to weigh the risk of noncompliance against the increased testing burden and is providing them with the discretion to choose the extent to which they want to conduct additional testing beyond the requirements of this proposal.
Additionally, DOE is proposing new provisions that will require manufacturers to perform additional testing and re-substantiation if changes occur that may impact the validity of the AEDM. These proposals are discussed further below. Because of these additional changes, as well as more stringent substantiation requirements, DOE agrees with commenters that the second round of testing is unnecessary to substantiate the AEDM and is proposing to eliminate the second round of testing for commercial HVAC and water heaters.
Establishing a standardized substantiation package would provide a number of benefits, including predictability and consistency with respect to the submission and review of AEDM-related records. Under today's proposal, manufacturers would know what materials to maintain regarding the AEDM-based certifications of their products and DOE would be able to more readily discern the validity and completeness of these submissions.
Adopting a standardized substantiation package approach would provide a number of benefits. First, this approach would clearly inform manufacturers regarding the underlying materials they need to maintain in support of their certified ratings for each basic model that has been certified and rated using an AEDM. With this clarification, manufacturer confusion regarding document retention issues would be eliminated. Second, information packages submitted in response to a request under 10 CFR 429.71 would be comparable in content and lend themselves more readily to DOE's review of those technical materials supporting a given manufacturer's AEDM. By creating an approach that involves the submission of a standardized set of materials, which would likely include a summary of the basic models used to substantiate the AEDM, DOE anticipates that the review time of this material will be substantially less than if a non-standardized approach were used. Other information that would likely be part of this package includes, but is not limited to the following: information demonstrating that the substantiation criteria are met; supporting test data from physical tests of those basic models; information related to the AEDM such as its version number and applicable product classes; and a list of all the basic models that have been rated with the AEDM. DOE intends to address this topic further in the upcoming Certification, Compliance and Enforcement rulemaking.
Under the current process, manufacturers must retain documentation containing a description of the AEDM, supporting test data, and the AEDM itself. To avail themselves of the less burdensome option of using an AEDM, manufacturers must be willing to run additional simulations, provide further analysis of previous AEDM output, and test selected basic models on request. See, e.g., 10 CFR 431.17 (specifying AEDM-related requirements for electric motors) and 10 CFR 429.70(c)(3) (specifying AEDM-related requirements for commercial HVAC-WH). However, DOE does not currently require a specific frequency for validating a given AEDM—e.g., annually or once every five years. To address this shortcoming, DOE sought comment in the RFI on how often it should, if at all, validate AEDMs without creating an undue burden on manufacturers or limiting the number of products in the marketplace.
AHRI stated that there was no need for DOE to validate AEDMs or ARMs, particularly if a manufacturer participates in a voluntary industry certification program (VICP). Carrier, Zero Zone, NEMA, Mitsubishi, and Goodman supported this view. (AHRI, No. 17.1 at p. 4; Carrier, No 7.1 at p. 6; Zero Zone, No. 18.1 at p. 12; Mitsubishi, No. 19.1 at p. 3-4; Goodman, No. 2.1 at p. 2) Structural Concepts asserted that the initial validation of AEDMs is all that is needed to ensure the accuracy of the AEDM, while Modine and Lennox argued that validation is unnecessary. (Structural Concepts, No. 26.1 at p. 3; Modine, No. 8.1 at p. 3; Lennox, No. 16.1 at p. 4) While NEMA also indicated that validation was unnecessary, it noted that if DOE still chooses to validate AEDMs, it should be done at most annually. (NEMA, No. 22.1 at p. 4) Traulsen suggested the same validation frequency (i.e., annually) as NEMA. (Traulsen, No. 9.1 at p. 4) Bradford White supported validation testing every three to five years and Hussmann favored testing at least 4 models annually—but at DOE's expense. (Bradford White, No. 5.1 at p. 2; Hussmann, No. 10.1 at p. 3)
In DOE's view, an AEDM validation measure is a necessary component of ensuring the accuracy of product ratings based on AEDMs. However, DOE recognizes that too frequent validation could be unnecessary. Accordingly, rather than specify a particular validation frequency requirement, DOE is reserving the right to request the documentation supporting the AEDM and to test a basic model at any point, pursuant to 10 CFR 429.104.
As part of today's notice, DOE also seeks to clarify how it would conduct assessment testing to evaluate whether basic models rated with the use of an AEDM comply with conservation standards. When conducting assessment testing, DOE will exercise its authority to select and test a single unit of a basic model, including those that have been certified using an AEDM, at any point, pursuant to 10 CFR 429.104. The unit will be tested to the applicable DOE test procedure at an independent, third-party laboratory accredited to the International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC), “General requirements for the competence of testing and calibration laboratories,” ISO/IEC 17025:2005(E). The test results obtained from the testing of one unit will be compared to both the applicable Federal conservation standard as well as the manufacturer's certified rating, which was developed using an AEDM. If the test result indicates that the product was rated incorrectly, DOE may require the manufacturer to re-substantiate their AEDM using the DOE test data, and re-rate and re-certify the basic model, as may be necessary. If the test result indicates that the product may not meet Federal conservation standards, DOE may pursue enforcement testing pursuant to 10 CFR 429.110.
The following sections describe potential DOE actions in response to certain verification testing results.
If testing results from DOE-initiated testing indicate that the model was rated incorrectly by an AEDM, DOE may require the manufacturer to re-substantiate their AEDM and re-rate and re-certify all products that were rated using the AEDM, as the new results from the AEDM prove necessary. DOE would make this determination by comparing the assessment test results to the certified rating to determine if the specified tolerances were maintained as prescribed in 10 CFR 429.70 (c). If a basic model is rated incorrectly, DOE proposes to require manufacturers to re-substantiate their AEDM within 30 days of being provided with test data by the Department. The manufacturer would be required to use the test data obtained through DOE testing in the re-substantiation of the AEDM. This would
DOE requests comment on the appropriate course of action and necessary time to complete such steps when a basic model tested by DOE fails to meet its certified rating generated using an AEDM. (See Issue 6 under “Issues on Which DOE Seeks Comment” in section IV.B of this NOPR.)
Based on the results of this initial assessment testing, DOE may initiate an investigation that a basic model may not comply with an applicable conservation standard pursuant to 10 CFR 429.106 and/or undertake enforcement testing pursuant to 10 CFR 429.110. If, following enforcement testing, a model is determined to be non-compliant, all other models within that basic model are deemed non-compliant. DOE will withhold a finding of noncompliance for all other basic models rated with the AEDM pending additional investigation.
If the basic model that is found non-compliant was used for substantiation of the AEDM, the manufacturer must re-substantiate that AEDM within 30 days of notification, pursuant to the substantiation requirements enumerated in 10 CFR 429.70(c). DOE is not proposing to require the manufacturer to re-test basic models that were tested previously for substantiation if DOE has not determined those models to be non-compliant.
Additionally, DOE is considering how to address those manufacturers whose AEDMs do not accurately rate their products on a recurring basis. One possible approach would be to restrict or disallow the use of AEDMs for these manufacturers. Under this approach, manufacturers would have an incentive to exercise greater care when developing and applying AEDMs to rate their products. Another option would be to impose civil penalties. DOE believes that manufacturers must be held accountable for the accuracy of their AEDMs and that a means of discouraging future attempts to circumvent the standards established either by Congress or DOE is necessary. However, DOE does not want to unduly burden manufacturers, adversely impact the ability of small businesses to compete, or otherwise impede the development and marketing of new and innovative compliant products for consumers to purchase.
Responding to DOE's RFI, numerous interested parties suggested a variety of steps DOE could take in dealing with an instance of non-compliance. AHRI observed that a finding of non-compliance does not necessarily indicate an error in the AEDM, and that all models should not be found non-compliant until the reason for failure has been determined. (AHRI, No. 17.1 at p. 3) Goodman, Lennox, Carrier, Modine, Hussmann, Heatcraft, First Company, PVI Industries, NEMA, and Structural Concepts all concurred with this comment. (Goodman, No. 2.1 at p. 1; Carrier, No. 7.1 at pp. 2-3; Modine, No. 8, at p. 1; Hussmann, No. 10.1 at p. 2; Heatcraft, No. 11.1 at p. 2; Lennox, No. 13.1 at p. 2; Lennox, No. 16.1 at p. 2; First Company; No. 14.1 at p. 2; PVI Industries, No. 15.1 at p. 3; NEMA, No. 22.1 at p. 2; Structural Concepts, No. 26.1 at p. 1). Zero Zone and NEMA noted that, rather than restrict AEDM usage, DOE should focus on finding the cause of the error and ensuring that a correction is made. (Zero Zone, No. 18.1 at p. 7; NEMA, No. 20.1 at p. 3)
However, some stakeholders recognized the need to more actively discourage manufacturers who are consistently non-compliant or intentionally non-compliant. Traulsen, Bradford White, First Company and EarthJustice all stated that DOE should disallow the use of AEDMs for manufacturers after multiple instances of non-compliance, while American Panel wrote that the use of AEDMs should be disallowed if there was willful intent by the manufacturer regarding the ratings from the AEDM. (American Panel, No. 3.1 at p. 2; Traulsen, No. 9.1 at p. 3; First Company, No. 14.1 at p. 2; EarthJustice, No. 21.1 at p. 1)
DOE concurs that finding the root cause of a non-compliance is important. As important as this factor is, DOE stresses that determining this cause is the manufacturer's responsibility, not DOE's. DOE remains concerned, however, that the prospect of disallowing the use of AEDMs following a single instance of non-compliance would place a significant burden on manufacturers, and the additional testing necessitated by this penalty potentially could lead to time-to-market delays. Therefore, DOE is proposing to disallow the use of an AEDM following multiple instances of non-compliance and/or if there is evidence that the mis-rating was willful.
DOE requests comment on the proposal that DOE disallow the use of an AEDM if there is evidence that the mis-rating is willful and/or there are multiple instances of non-compliance. (See Issue 7 under “Issues on Which DOE Seeks Comment” in section IV.B of this NOPR.)
In addition to re-substantiation required by DOE as the result of assessment testing, DOE is concerned about the need to update an AEDM to avoid having AEDMs based on outdated substantiation data, which could lead to inaccurate ratings for basic models certified using AEDMs, and requested comment in the RFI on the necessity and required frequency of re-substantiation.
Carrier and Goodman asserted that a given manufacturer's familiarity and understanding of both its products and AEDMs makes them better equipped than DOE to decide when re-substantiation is necessary. (Carrier, No. 7.1 at p. 5; Goodman, No. 2.1 at p. 1) Goodman also noted that there would be an additional burden placed on manufacturers by mandatory re-substantiation, and several other stakeholders, including American Panel, Heatcraft, First Company, and Lennox voiced similar concerns about the added burden. (Goodman, No. 2.1 at p. 1; American Panel, No. 3.1 at p. 3; Heatcraft, No. 11.1 at p. 3; First Company, No. 14.1 at p. 2; Lennox, No. 16.1 at p. 3)
In contrast, a variety of stakeholders—American Panel, First Company, Lennox, NEMA and AHRI—all remarked that significant changes in a test method would justify re-substantiation. (American Panel, No. 3.1 at p. 3; First Company, No. 14.1 at p. 2; Lennox, No. 16.1 at p. 3; AHRI, No. 17.1 at p. 5; NEMA, No. 20.1 at p. 5). Several commenters, including Modine, Hussmann, Howe, Mitsubishi and Structural Concepts, disagreed with this opinion and believed that there is no need for re-substantiation. (Modine, No.
DOE is concerned that, without some type of re-substantiation requirement, AEDMs could become outdated over time if they are based on old models, which have been discontinued and are not currently in production. However, DOE acknowledges manufacturer concerns over the additional test burden and is not proposing to require re-substantiation on a periodic basis. Instead, DOE is proposing that manufacturers must re-substantiate their AEDMs when there is a change either to the applicable standards or DOE test procedure. Additionally, DOE is proposing that the substantiation data used by the manufacturer must be obtained from physical tests of current models from that manufacturer. DOE is taking this approach because it agrees with commenters who claim that it is not necessary to re-substantiate an AEDM for products for which there has been no change that would cause the model to behave differently under testing. However, changes to the applicable standards or DOE test procedure are more likely to necessitate changes to a given AEDM that would result in a different output. When a model used for substantiation of the AEDM is discontinued or becomes obsolete, a manufacturer will need to replace that model with a new model and re-rate or re-certify as necessary.
DOE requests comment on the necessity of requiring re-substantiation when there is a change in standards or test procedure and requiring that AEDMs be substantiated with active models. (See Issue 8 under “Issues on Which DOE Seeks Comment” in section IV.B of this NOPR.)
The Office of Management and Budget has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires the preparation of an initial regulatory flexibility analysis (IRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site:
DOE reviewed the AEDM and ARM requirements being proposed under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. As discussed in more detail below, DOE found that because the provisions of this rule will not result in increased testing and/or reporting burden for manufacturers already eligible to use an AEDM and will extend AEDM use to a number of manufacturers, thus reducing their testing burden, manufacturers will not experience increased financial burden as a result of this rule.
Today's proposal, which presents voluntary methods for certifying compliance in lieu of conducting actual physical testing, would not increase the testing or reporting burden of manufacturers who currently use, or are eligible to use, an AEDM to certify their products. Manufacturers who produce products that may be certified using ARMs must obtain approval from the Department prior to the use of those ARMs for certification purposes. This rule, if promulgated, will eliminate the ARM nomenclature and treat these methods as AEDMs. As a result, the pre-approval requirement will be eliminated, resulting in a reduction in reporting burden for those manufacturers.
Furthermore, proposed requirements for substantiation of an AEDM do not require more testing than that required by the AEDM provisions included in the March 7, 2011 Certification, Compliance and Enforcement Final Rule (76 FR 12422) (“March 2011 Final Rule”), and would relax tolerances that tested products are required to meet in order to substantiate the AEDM. In this proposed rule, DOE has discussed re-substantiation requirements for manufacturers utilizing an AEDM. While these requirements were not directly stated in the March 2011 Final Rule, DOE believes that the March rule implicitly included requirements for re-substantiation within its AEDM requirements. DOE is explicitly including re-substantiation requirements in this proposed rule to provide clarity for those manufacturers using an AEDM. As such, DOE does not believe these requirements result in an increased burden for manufacturers who already use an AEDM.
Finally, DOE has clarified in today's proposal how it intends to exercise its authority to validate AEDM performance and verify the performance of products certified using an AEDM. This is a clarification of the process that DOE promulgated in the March 2011 Final Rule and would not increase burden for manufacturers currently allowed to use AEDMs to certify their products.
This notice also proposes to extend the applicability of AEDMs to products that are currently not permitted to be certified or rated by these alternate methods. Manufacturers not eligible to use AEDMs must currently test at least two units of every basic model that they produce in order to certify compliance to the Department pursuant to the March 2011 Final Rule. Today's proposal would reduce a manufacturer's testing burden by enabling these manufacturers to simulate testing based on testing data derived from a reduced number of units. While the Department believes that permitting greater use of AEDMs will reduce the affected manufacturer's test burden, their use is at the manufacturer's discretion. If, as a result of any of the proposals herein, a manufacturer believes that use of an AEDM would increase rather than decrease their financial burden, the manufacturer may choose not to employ the method. Should a manufacturer choose to abstain from using an AEDM, this proposed provision would not apply and the manufacturer would continue to remain subject to the requirements of any DOE test procedure that applies to that product, which would result in no change in burden from that which is required currently.
For the reasons enumerated above, DOE is certifying that the proposed rule,
Manufacturers of the covered products addressed in today's NOPR must certify to DOE that their equipment comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their equipment according to the applicable DOE test procedures for the given equipment type, including any amendments adopted for those test procedures, or use the AEDMs to develop the certified ratings of the basic models. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including the equipment at issue in this NOPR. (76 FR 12422 (March 7, 2011)). The collection-of-information requirement for these certification and recordkeeping provisions is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 20 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this proposed rule would adopt changes for certifying certain covered appliances, so it would not affect the amount, quality or distribution of energy usage, and, therefore, would not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A6 under 10 CFR part 1021, subpart D. Accordingly, neither an environmental assessment nor an environmental impact statement is required.
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of today's proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
Today's regulatory action to establish alternate certification requirements for certain covered appliances is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
DOE will accept comments, data, and information regarding the proposed rule no later than the date provided at the beginning of this notice. Comments, data, and information submitted to DOE's email address for this rulemaking should be provided in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format. Interested parties should avoid the use of special characters or any form of encryption, and wherever possible, comments should include the electronic signature of the author. Absent an electronic signature, comments submitted electronically must be followed and authenticated by submitting a signed original paper document to the address provided at the beginning of this notice. Comments, data, and information submitted to DOE via mail or hand delivery/courier should include one signed original paper copy. No telefacsimiles (faxes) will be accepted.
According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: one copy of the document including all the information believed to be confidential and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) a description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) a date upon which such information might lose its confidential nature due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1. DOE requests comment on its proposal not to add a pre-approval process for AEDMs and its proposal to no longer require pre-approval for use of an alternative rating method for residential central air conditioners and heat pumps.
2. DOE requests comment on its proposal to expand the use of AEDMs to other commercial products.
3. DOE requests comment on its proposal to require at least one basic model from each product class to be tested to substantiate the AEDM. Specifically, DOE requests comments from manufacturers as to whether additional clarification is needed for manufacturers of certain covered products to determine all the applicable product classes that would need to be tested to substantiate the AEDM. As part of these comments, the Department is interested in receiving feedback on how manufacturers currently develop any simulation tools to ensure they are applicable across a wide range of product classes.
4. DOE seeks product specific comments on proposed overall and individual tolerance levels by product type. Specifically, DOE seeks data which show that the variability seen in the manufacturing processes, test instrumentation, and testing procedures are such that a different tolerance should be considered.
5. DOE seeks comment on the criteria for selection of basic models and the number of basic models a manufacturer should be required to test for substantiation as well as whether the differences in testing requirements for distribution transformers are appropriate or necessary.
6. DOE seeks comment on the appropriate course of action and the time to complete such steps when a model tested by DOE fails to meet its certified rating.
7. DOE requests comment on the proposal to disallow the use of an AEDM if there is evidence that the mis-rating is willful and/or there are multiple instances of non-compliance.
8. DOE requests comment on the necessity of requiring re-substantiation when there is a change in standards or test procedure and requiring that AEDMs be re-substantiated with active models.
The Secretary of Energy has approved publication of today's NOPR.
Administrative practice and procedure, Confidential business information, Energy conservation, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, and Small businesses.
Administrative practice and procedure, Confidential business information, Energy conservation, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, DOE proposes to amend parts 429, 430 and 431 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 429 continues to read as follows:
42 U.S.C. 6291-6317.
2. Section 429.1 is revised to read as follows:
This part sets forth the procedures to be followed for certification, determination and enforcement of compliance of covered products and covered equipment with the applicable conservation standards set forth in parts 430 and 431 of this subchapter.
3. Section 429.2 is amended by adding the definition for “ Alternative Efficiency Determination Method or AEDM” in alphabetical order to paragraph (b) to read as follows:
4. Section 429.12 is amended by revising paragraph (b)(12) to read as follows:
(b) * * *
(12) Whether certification is based upon the use of an AEDM, where permitted, for determining measures of energy conservation and the name or version of any such AEDM; and
5. Section 429.16 is amended by revising paragraph (a) and removing paragraph (c) to read as follows:
(a)
(1)
(i) If represented values are determined through testing, the general requirements of § 429.11 are applicable to central air conditioners and heat pumps; and
(ii)(A) For central air conditioners and heat pumps, each single-package system and each condensing unit (outdoor unit) of a split-system, when combined with a selected evaporator coil (indoor unit) or a set of selected indoor units, must have a sample of sufficient size tested in accordance with the applicable provisions of this subpart. The represented values for any model of a single-package system, any model of a tested split-system combination, any model of a tested mini-split system combination, or any model of a tested multi-split system combination must be assigned such that—
(
(
(
And
(
(
(
And
(B) For heat pumps, all units of the sample population must be tested in both the cooling and heating modes and the results used for determining the heat pump's certified Seasonal Energy Efficiency Ratio (SEER) and Heating Seasonal Performance Factor (HSPF) ratings in accordance with paragraph (a)(1)(ii)(A)(
(C) For split-system air conditioners and heat pumps, the condenser-evaporator coil combination selected for tests pursuant to paragraph (a)(1)(ii)(A)
(
(
(
(
(
(2)
(i) Any represented value of estimated maximum daily energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM; and
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM.
6. Section 429.42 is amended by revising paragraph (a) to read as follows:
(a)
(1) Units to be tested.
(i) If represented values are determined through testing, the general requirements of § 429.11 are applicable to commercial refrigeration equipment; and
(ii)(A) For each basic model of commercial refrigerator, freezer, or refrigerator-freezer selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—to ensure that—
(
(
(
And
and
(
(
(
And
(2)
(i) Any represented value of estimated maximum daily energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM; and
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher
7. Section 429.43 is amended by revising paragraph (a) and removing paragraph (c) to read as follows:
(a)
(1)
(i) If represented values are determined through testing, the general requirements of § 429.11 are applicable to commercial HVAC equipment; and
(ii)(A) For each basic model of commercial HVAC equipment, a sample of sufficient size shall be selected and tested to ensure that—
(
(
(
And
and
(
(
(
And
(2)
(i) Any represented value of energy consumption or other measure of energy usage of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM; and
(ii) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM.
8. Section 429.44 is amended by revising paragraph (a) and removing paragraph (c) to read as follows:
(a)
(1)
(i) If represented values are determined through testing, the general requirements of § 429.11 are applicable to commercial WH equipment; and
(ii)(A) For each basic model of commercial WH equipment, a sample of sufficient size shall be selected and tested to ensure that—
(
(
(
And
(
(
(ii) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:
And
(2)
(i) Any represented value of maximum standby loss or other measure of energy usage of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM; and
(ii) Any represented value of minimum thermal efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM.
9. Section 429.45 is amended by revising paragraph (a) to read as follows:
(a)
(1)
(i) If represented values are determined through testing, the general requirements of § 429.11 are applicable to automatic commercial ice makers; and
(ii)(A) For each basic model of automatic commercial ice maker selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(
(
(
And
(
(
(
And
(2)
(i) Any represented value of maximum energy use or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM; and
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM.
10. Section 429.47 is amended by revising paragraph (a) and removing paragraph (c) to read as follows:
(a)
(1)
(i) If represented values are determined through testing, the general requirements of § 429.11 are applicable to distribution transformers; and
(ii)(A) For each basic model selected for testing:
(
(
(B) Any represented value of efficiency of a basic model must satisfy the condition:
(2)
11. Section 429.52 is amended by revising paragraph (a) to read as follows:
(a)
(1)
(i) If represented values are determined through testing, the general requirements of § 429.11 are applicable to refrigerated bottled or canned vending machines; and
(ii)(A) For each basic model of refrigerated bottled or canned beverage vending machine selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(
(
(
And
(
(
(
And
(2)
(i) Any represented value of energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM; and
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM.
12. Section 429.53 is amended by revising paragraph (a) to read as follows:
(a)
(1)
(i) If represented values are determined through testing, the general requirements of § 429.11 are applicable to walk-in cooler or freezer refrigeration systems; and
(ii)(A) For each basic model of walk-in cooler or freezer refrigeration system selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(
(
(
(
(
(
(2)
(i) Any represented value of energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM; and
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM.
13. Section 429.70 is amended by revising paragraphs (a), (c), (d) and (e) to read as follows:
(a)
(c)
(1) Apply the AEDM to at least five of the manufacturer's basic models that have been selected for testing in accordance with paragraph (c)(5) of this section, and calculate the efficiency for each of these basic models. In any instance where a manufacturer has produced fewer than five basic models in the previous 6 months, select one model from each basic model and additional individual models to meet the minimum of five;
(2) Test at least one unit of each basic model to which the AEDM was applied in accordance with the applicable provisions of Part 430 or 431 and determine the efficiency (or consumption) for each of these basic models, except that, for distribution transformer AEDMs, test five units of each basic model selected for testing.
(3)
(i) For electric motors and small electric motors, the efficiency predicted
(ii) For all other products where an AEDM is authorized for use in paragraph (a) of this section, the efficiency predicted by the AEDM for each basic model must be within plus or minus 5 percent of the efficiency determined from the corresponding test of the basic model.
(4)
(5)
(i) Each AEDM must be supported by test data obtained from physical tests of current models. The tested basic models underlying an AEDM must meet the following criteria:
(A) There must be at least one basic model selected from each DOE product class to which the AEDM will be applied;
(B) Two basic models must be from the product class with the highest sales volume. For residential AC/HP, Commercial HVAC, Commercial WH, ACIM, WICF refrigeration systems, CRE and BVMs; one of these two selected models must be the smallest capacity (
(C) One tested model must be the basic model which either has the highest sales volume of the models covered by the AEDM during the prior year or is expected to have the highest sales volume in the coming year;
(D) Each selected model must meet the current applicable energy or water conservation standards for that product; and
(E) Each test must have been performed in accordance with the test procedure for which compliance is required at the time the basic model is distributed in commerce.
(ii) In any instance where it is not possible for a manufacturer to select basic models for testing in accordance with all of these criteria, the criteria shall be given priority in the order in which they are listed. Within the limits imposed by the criteria, basic models shall be selected randomly.
(1) If a manufacturer has used an AEDM pursuant to this section;
(i) The manufacturer must have available for inspection by the Department records showing:
(A) The method or methods used;
(B) The mathematical model, the engineering or statistical analysis, computer simulation or modeling, and other analytic evaluation of performance data on which the AEDM is based;
(C) Complete test data, product information, and related information that the manufacturer generated or acquired through testing and AEDM calculations for each basic model; and
(D) The calculations used to determine the average efficiency, energy consumption, or power loss of each basic model to which an AEDM was applied.
(ii) If requested by the Department and at DOE's discretion, the manufacturer must perform at least one of the following:
(A) Conduct simulations before representatives of the Department to predict the performance of particular basic models of the product to which the AEDM was applied with DOE witnessing;
(B) Provide analyses of previous simulations conducted by the manufacturer; or
(C) Conduct certification testing of basic models selected by the Department.
(2)
(i)
(ii)
(A) Re-substantiate the AEDM based on a completely new set of test data from the product class affected by the determination of non-compliance subject to the applicable provisions of Part 430 and 431, § 429.116, and paragraph (c) of this section, and
(B) Re-rate and re-certify, as necessary, with the re-substantiated AEDM, all basic models that were certified using the AEDM.
(iii)
(A) Re-substantiate the AEDM used to certify the model;
(
(
(B) Re-rate and re-certify with the updated AEDM, as necessary, all basic models that used the original AEDM.
(e) R
(1)
(i) The basic models used to substantiate the AEDM must be models currently in production; and
(ii) All test data used to substantiate the AEDM must meet the new standard levels.
(2)
(3)
14. Section 429.116 is amended to read as follows:
(a) If DOE determines that independent, third-party testing is
(b) If DOE determines that a manufacturer has used an AEDM to certify compliance and either has willfully certified the product at an unsupported rating or has distributed multiple, non-compliant basic models in commerce as a result of a faulty AEDM, DOE may prohibit continued use of an AEDM and require the manufacturer to base its certifications of compliance on physical testing of each basic model.
15. The authority citation for part 430 continues to read as follows:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
16. Section 430.2 is amended by removing the definition of “ARM/simulation adjustment factor”.
17. The authority citation for part 431 continues to read as follows:
42 U.S.C. 6291-6317.
18. Section 431.2 is amended by revising the definition of “alternative efficiency determination method or AEDM” to read as follows:
19. Section 431.17 is amended by revising paragraph (a) to read as follows:
(a
(2)
(3)
(ii) For each basic model for which a certification program is not used as described in paragraph (a)(3)(i) of this section, any testing of the motor pursuant to paragraphs (a)(1) through (2) of this section to determine its energy efficiency must be carried out in accordance with paragraph (b) of this section, in an accredited laboratory that meets the requirements of § 431.18. (This includes testing of the basic model, pursuant to § 429.70, to substantiate an AEDM.)
20. Section 431.442 is revised by removing the definition of “Alternative efficiency determination method”.
21. Section 431.445 is amended by:
a. Revising paragraph (b); and
b. Removing paragraph (c).
(b)
(2)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes. The existing AD currently requires inspecting for scribe lines in the skin along lap joints, butt joints, certain external doublers, and the large cargo door hinges, and related investigative and corrective actions if necessary. Since we issued that AD, we have determined that scribe lines could occur where external decals are installed or removed across lap joints, large cargo door hinges, or external doublers. This proposed AD would add inspecting for scribe lines where external decals have been applied or removed across lap joints, large cargo door hinges, and external doublers, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct scribe lines which can develop into fatigue cracks in the skin. Undetected fatigue cracks can grow and cause sudden decompression of the airplane.
We must receive comments on this proposed AD by July 16, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; phone: 206-544-5000, extension 1; fax: 206-766-5680; email:
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6577; fax: 425-917-6590; 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 November 12, 2009, we issued AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009), for certain Model 777-200, -200LR, -300, and -300ER series airplanes. That AD requires inspections for scribe lines in the skin along lap joints, butt joints, certain external doublers, and the large cargo door hinges, and related investigative and corrective actions if necessary. That AD resulted from reports of scribe lines found at lap joints and butt joints, around external doublers, and at locations where external decals had been removed. We issued that AD to detect and correct scribe lines, which can develop into fatigue cracks in the skin. Undetected fatigue cracks can grow and cause sudden decompression of the airplane.
Since we issued AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009), we have determined that scribe lines could occur where external decals are installed or removed across lap joints, large cargo door hinges, and external doublers. AD 2009-24-08 had exempted those areas from the required inspections. Those areas need to be inspected in order to address the identified unsafe condition.
We reviewed Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010. We referred to Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008, as the appropriate source of service information for accomplishing the required actions of AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009). Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, describes an additional inspection to determine where external decals have been applied or removed across lap joints, large cargo door hinges, and external doublers on airplanes and areas that were previously determined to not require inspections as specified by the original issue of this service information (because the airplane had never been stripped or repainted). Where external decals have been applied or removed, Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, describes inspecting for scribe lines, and related investigative and corrective actions previously specified in the original issue of this service information.
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 requirements of AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009). This proposed AD would add an inspection to determine where external decals have been applied or removed across affected lap joints, large cargo door hinges, and external doublers. For locations where the inspections determine that external decals have been applied or removed, this proposed AD would require inspecting for scribe lines, and related investigative and corrective actions as described in AD 2009-24-08.
Where Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, specifies contacting the manufacturer for instructions on how to repair certain conditions, this proposed AD would require repairing those conditions in one of the following ways:
• Using a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for The Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, does not specify a compliance time for doing the Part 11 actions of the Accomplishment Instructions. This proposed AD would require doing the Part 11 actions within 24 months after the effective date of the AD.
We estimate that this proposed AD affects 163 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
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.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009), and adding the following new AD:
Docket No. FAA-2012-0497; Directorate Identifier 2011-NM-140-AD.
The FAA must receive comments on this AD action by July 16, 2012.
This AD supersedes AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009).
This AD applies to The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes; certificated in any category; as identified in Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of scribe lines found at lap joints and butt joints, around external doublers, at locations where external decals had been cut, and at locations where external decals have been installed or removed. We are issuing this AD to detect and correct scribe lines which can develop into fatigue cracks in the skin. Undetected fatigue cracks can grow and cause sudden decompression of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009), with new service information and additional reporting. At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008, except as provided in paragraphs (h) and (j) of this AD: Do detailed exploratory inspections for scribe lines in the skin along lap joints, butt joints, certain external doublers, and the large cargo door hinges. Do all applicable related investigative and corrective actions at the times specified in Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008, by accomplishing all actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008; or Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010; except as provided by paragraph (i) of this AD. As of the effective date of this AD, use only Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, to do the actions required by this paragraph.
The inspection exceptions described in NOTES 1.-5. in Paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008, apply to paragraph (g) of this AD.
This paragraph restates the requirements of paragraph (h) of AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009). Where Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008, specifies a compliance time after the date on that service bulletin, paragraph (g) of this AD requires compliance within the specified compliance time after January 4, 2010 (the effective date of AD 2009-24-08).
This paragraph restates the requirements of paragraph (i) of AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009), with new service information. Where Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008; and Boeing Service Bulletin
This paragraph restates the requirements of paragraph (j) of AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009). Where paragraph 1.E. “Compliance,” of Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008, specifies to “contact Boeing for inspection requirements for operation beyond 60,000 total flight-cycles after first repaint,” for those airplanes, this AD requires contacting the Manager, Seattle Aircraft Certification Office (ACO), for all inspection requirements of this AD and doing the requirements.
This paragraph restates the requirements of paragraph (k) of AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009). At the applicable time specified in paragraph (k)(1) or (k)(2) of this AD: Submit a report of positive findings of cracks found during the inspection required by paragraphs (g) and (m) of this AD to the Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. Alternatively, operators may submit reports to their Boeing field service representatives. The report must contain, at a minimum, the inspection results, a description of any discrepancies found, the airplane serial number, and the number of flight cycles and flight hours on the airplane. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
Within 24 months after the effective date of this AD: Inspect to determine the locations where external decals have been applied or removed across affected lap joints, large cargo door hinges, and external doublers, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010.
If, during the inspection required by paragraph (l) of this AD, any location is found where external decals have been applied or removed across lap joints, large cargo door hinges, or external doublers: Before further flight, do a detailed exploratory inspection for scribe lines at all affected locations, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010. Do all applicable related investigative and corrective actions at the times specified in Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, by accomplishing all actions specified in the Accomplishment Instructions of Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, except as provided by paragraph (i) of this AD.
(1) Where Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, specifies a compliance time after the date on that service bulletin, paragraphs (l) and (m) of this AD require compliance within the specified compliance time after the effective date of this AD.
(2) Where paragraph 1.E., “Compliance,” of Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, specifies to “contact Boeing for inspection requirements for operation beyond 60,000 total flight-cycles after first repaint,” for those airplanes, this AD requires contacting the Manager, Seattle ACO, for all inspection requirements of this AD and doing the requirements.
This paragraph provides credit for the actions required by paragraph (m) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 777-53A0054, dated August 7, 2008.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.
(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved for AD 2009-24-08, Amendment 39-16096 (74 FR 62217, November 27, 2009), are approved as AMOCs for the corresponding provisions of this AD, except that AMOCs approved for AD 2009-24-08 are not approved for fuselage areas where any decals may have been installed or removed on airplanes that have never been stripped or repainted since they left the factory.
(1) For more information about this AD, contact Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; phone: 206-544-5000, extension 1; fax: 206-766-5680; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) for all Airbus Model A318-111 and -112 airplanes; and all Model A319, A320, and A321 series airplanes. The existing AD currently requires revising the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. Since we issued that AD, Airbus has issued more restrictive maintenance requirements and/or airworthiness limitations. This proposed AD would revise the maintenance program to incorporate revised fuel maintenance and inspection tasks, and add airplanes to the applicability. We are proposing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
We must receive comments on this proposed AD by July 16, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1405; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On November 16, 2009, we issued AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009), Airbus has issued A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 4, dated August 26, 2010. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0155, dated August 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
The airworthiness limitations are currently published in the Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS).
The Fuel Airworthiness Limitations (FAL) are specified in Airbus A318/A319/A320/A321 FAL Document reference 95A.1931/05, which is approved by the European Aviation Safety Agency (EASA) and referenced in the Airbus A318/A319/A320/A321 ALS Part 5.
The issue 4 of Airbus A318/A319/A320/A321 FAL Document introduces more restrictive maintenance requirements and/or airworthiness limitations. Failure to comply with these more restrictive maintenance requirements and airworthiness limitations contained in this document constitutes an unsafe condition.
This [EASA] AD retains the requirement of EASA AD 2006-0203, which is superseded, and requires the implementation of the new or more restrictive maintenance requirements and/or airworthiness limitations as specified in Airbus A318/A319/A320/A321 FAL Document issue 4.
Airbus has issued A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 4, dated August 26, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
We have changed Note 1 and Note 2 of the restated requirements of AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009), to lettered paragraphs (i) and (j), respectively, in this NPRM. These changes do not add any additional burden upon the public than was required in the existing AD.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would
The actions that are required by AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009), and retained in this proposed AD take about 2 work-hours per product, at an average labor rate of $85 per work hour. Required parts cost about $0 per product. Based on these figures, the estimated cost of the currently required actions is $170 per product.
We estimate that it would take about 2 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $126,650, or $170 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009), and adding the following new AD:
We must receive comments by July 16, 2012.
This AD supersedes AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009).
(1) This AD applies to Airbus Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111, -211, -212, -214, -231, -232, and -233 airplanes; Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes; certificated in any category; all serial numbers.
(2) This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections and/or Critical Design Configuration Control Limitations (CDCCLs). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (l)(1) of this AD. The request should include a description of changes to the required actions that will ensure the continued operational safety of the airplane.
Air Transport Association (ATA) of America Code 05, Periodic Inspections.
This AD was prompted by Airbus issuing more restrictive maintenance requirements and/or airworthiness limitations. We are issuing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
This paragraph restates the requirements of paragraph (f) of AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009). For Model A318-111 and -112 airplanes, and Model A319, A320, and A321 airplanes: Within 3 months after August 28, 2007 (the effective date of AD 2007-15-06), revise the ALS of the Instructions for Continued Airworthiness to incorporate Airbus A318/A319/A320/A321 ALS Part 5—Fuel Airworthiness Limitations, dated February 28, 2006, as defined in Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 1, dated December 19, 2005 (approved by the European Aviation Safety Agency (EASA) on March 14, 2006), Section 1, “Maintenance/Inspection Tasks;” or Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 2, dated July 8, 2008 (approved by the EASA on December 19, 2008), Section 1, ”Maintenance/Inspection Tasks.” For all tasks identified in Section 1 of Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 1, dated December 19, 2005; or Issue 2, dated July 8, 2008; the initial compliance times start from August 28, 2007, and the repetitive inspections must be accomplished thereafter at the intervals specified in Section 1, ”Maintenance/Inspection Tasks,” of Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 1, dated December 19, 2005; or Issue 2, dated July 8, 2008.
Airbus Operator Information Telex (OIT) SE 999.0076/06, dated June 20, 2006, provides guidance on identifying the applicable sections of the Airbus A318/A319/A320/A321 Airplane Maintenance Manual necessary for accomplishing the tasks specified in Section 1 ”Maintenance/Inspection Tasks,” of Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 1, dated December 19, 2005; or Issue 2, dated July 8, 2008.
This paragraph restates the requirements of paragraph (g) of AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009). For Airbus Model A318-111 and -112 airplanes, and Model
(1) This paragraph restates the requirements of paragraph (h) of AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009). Except as provided by paragraph (l) of this AD: After accomplishing the actions specified in paragraphs (g) and (h) of this AD, no alternative inspections, inspection intervals, or CDCCLs may be used.
(2) Notwithstanding any other maintenance or operational requirements, components that have been identified as airworthy or installed on the affected airplanes before the revision of the ALS, as required by paragraphs (g) and (h) of this AD, do not need to be reworked in accordance with the CDCCLs. However, once the ALS has been revised, future maintenance actions on these components must be done in accordance with the CDCCLs.
Within 6 months after the effective date of this AD: Revise the maintenance program to incorporate the new or revised tasks, life limits, and CDCCLs specified in Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 4, dated August 26, 2010, except as required in paragraph (j)(4) of this AD. The initial compliance times and intervals are stated in these documents, except as required in paragraphs (j)(1) through (j)(4) of this AD, or within 6 months after the effective date of this AD, whichever occurs later. For certain tasks, the compliance times depend on the pre-modification and post-modification status of the airplane. Incorporating the requirements of this paragraph terminates the corresponding requirements of paragraphs (g) and (h) of this AD.
(1) For airplanes whose first flight occurred before August 28, 2007 (the effective date of AD 2007-15-06 R1, Amendment 39-16097 (74 FR 62219, November 27, 2009)), the first accomplishment of tasks 281800-01-1, Functional Check of Tank Vapour Seal and Vent Drain System; and 281800-02-1, Detailed Inspection of Vapour Seal; must be performed no later than 11 months after the effective date of this AD.
(2) The first accomplishment of Tasks 470000-01-1, Operational Check of DFSOV, Dual Flapper Check Valves and NEA Line for Leaks; 470000-02-1, Operational Check of both Dual Flapper Check Valves for Leaks; 470000-03-1, Operational Check of Dual Flapper Check Valves for Reverse Flow and NEA Line for Leaks; 470000-04-1, Operational Check of Dual Flapper Check Valves for Reverse Flow; and 470000-05-1, Remove Air Separation Module (ASM) and Return to Vendor for Workshop Check; must be calculated, in accordance with paragraphs (j)(2)(i) or (j)(2)(ii) of this AD.
(i) From the airplane first flight for airplanes on which Airbus modification 38062 or 38195 has been embodied in production, or
(ii) From the in-service installation of the fuel tank inerting system specified in Airbus Service Bulletin A320-47-1001, Airbus Service Bulletin A320-47-1002, Airbus Service Bulletin A320-47-1003, Airbus Service Bulletin A320-47-1004, Airbus Service Bulletin A320-47-1006, or Airbus Service Bulletin A320-47-1007.
(3) Although Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 4, dated August 26, 2010, does not refer to Airbus Service Bulletin A320-47-1006 and Airbus Service Bulletin A320-47-1007, the tasks apply as follows:
(i) Tasks 470000-01-1, Operational Check of DFSOV, Dual Flapper Check Valves and NEA Line for Leaks; and 470000-02-1, Operational Check of both Dual Flapper Check Valves for leaks; apply to airplanes that have previously accomplished the actions specified in Airbus Service Bulletin A320-47-1007.
(ii) Task 470000-03-1, Operational Check of Dual Flapper Check Valves for Reverse Flow and NEA Line for Leaks; applies to airplanes that have previously accomplished the actions specified in Airbus Service Bulletin A320-47-1006, and that have not accomplished the actions specified in Airbus Service Bulletin A320-47-1007.
(iii) Task 470000-04-1, Operational Check of Dual Flapper Check Valves for Reverse Flow; applies to airplanes in post-modification 38195 configuration and that have not accomplished the actions specified in Airbus Service Bulletin A320-47-1007.
(iv) Task 470000-05-1, Remove ASM and return to Vendor for workshop check; applies to airplanes that have previously accomplished the actions specified in Airbus Service Bulletin A320-47-1007, and are in pre-modification 151529 configuration.
(4) Replace each ASM identified in table 1 of this AD in accordance with a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent). The compliance time for the replacement is before the accumulation of 27,000 flight hours (component time)—i.e., the life limitation.
Airbus A318/A319/A320/A321 Maintenance Manual Task 47-10-43-920-001-A, Air Separation Module Replacement, is an additional source of guidance for accomplishment of the removal and replacement of the ASM.
After accomplishing the revisions required by paragraph (j) of this AD, no alternative actions (e.g., inspections), intervals, and/or CDCCLs may be used other than those specified in Airbus A318/A319/A320/A321 ALS Part 5—Fuel Airworthiness Limitations, dated February 28, 2006, as defined in Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 4, dated August 26, 2010, unless the actions, intervals, and/or CDCCLs are approved as an AMOC in accordance with the procedures specified in paragraph (l)(1) of this AD.
The following provisions also apply to this AD:
(1) Refer to MCAI EASA Airworthiness Directive 2011-0155, dated August 25, 2011, and the following service information, for related information.
(i) Airbus A318/A319/A320/A321 ALS Part 5—Fuel Airworthiness Limitations, dated February 28, 2006.
(ii) Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 1, dated December 19, 2005.
(iii) A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 2, dated July 8, 2008.
(iv) Airbus A318/A319/A320/A321 Fuel Airworthiness Limitations, Document 95A.1931/05, Issue 4, dated August 26, 2010.
(2) For service information identified in this AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain The Boeing Company Model 747 airplanes. The existing AD currently requires repetitive visual inspections around the bushings of the wing landing gear (WLG) beam outboard end fittings for corrosion, and rework if necessary; and ultrasonic inspections for cracks of the outboard end fittings of the WLG support beams, and rework if necessary. Since we issued that AD, there have been new reports of corrosion damage to the end fittings of the WLG support beams, and one report of subsequent cracking in the end fittings. This proposed AD would add airplanes and repetitive inspections of the outboard end fitting of the left and right WLG support beams for cracks and corrosion, and corrective actions if necessary. We are proposing this AD to detect and correct corrosion and subsequent cracking in the outboard end fittings, which could result in separation of the fitting and damage to adjacent flight control cables and hydraulic systems and consequent reduced controllability of the airplane.
We must receive comments on this proposed AD by July 16, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1, fax 206-766-5680; email
You may examine the AD docket on the Internet at
Bill Ashforth, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: (425) 917-6432; fax: (425) 917-6590; 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 July 7, 1989, we issued AD 89-15-07, amendment 39-6267 (54 FR 30009, July 18, 1989), for certain Model 747 airplanes. That AD requires visual inspections around the bushings of the wing landing gear for corrosion, and repair if necessary, and ultrasonic inspections for cracks of the outboard end fittings of the WLG support beams, and overhaul if necessary. That AD resulted from a report of a fracture of the outboard end fitting of a left WLG beam. We issued that AD to prevent failure of the outboard end fitting of a WLG beam with possible damage to control cables or hydraulic lines in the area of the landing gear beam.
Since we issued AD 89-15-07, amendment 39-6267 (54 FR 30009, July 18, 1989), we have received new reports of corrosion damage to the end fittings of the WLG support beams, and one report of subsequent cracking in the end fittings. The end fittings are installed on the outboard ends of the WLG support beams, and they attach to gate fittings installed on the rear wing spars. There are two types of end fittings used—one is a two-piece end fitting installed in a “back to back” configuration; the other is a one-piece end fitting.
Boeing Service Bulletin 747-57-2244, Revision 1, dated July 28, 1988, was referred to in the existing AD for accomplishing the required actions on Model 747 airplanes having line numbers 1 through 695. The terminating action specified in that service bulletin involves replacing each of the end fitting lug bore and bolt hole bushings with new standard or oversize bushings which are installed with sealant to provide better corrosion prevention. That terminating action was incorporated into the design of replacement fittings used on production airplanes having line numbers 696 and subsequent.
Although the terminating action seemed to work well on airplanes having line numbers 1 through 695, recent reports from operators of airplanes having line numbers 696 and subsequent revealed that the problem occurred again. Further investigation revealed that the corrosion started at the lug bore and bushing interface because moisture continued to develop in that area due to exposure of the end fittings to environmental conditions. Subsequently, cracks have occurred at the corroded areas of the end fittings; therefore, the terminating action in that service bulletin is no longer valid because the unsafe condition specified in the existing AD has not been corrected.
Since the issuance of AD 89-15-07, amendment 39-6267 (54 FR 30009, July 18, 1989), Boeing has issued Alert Service Bulletin 747-57A2331, dated November 12, 2009. This new service information is applicable to Model 747 airplanes having line numbers 1 through 1419 inclusive, which includes airplanes on which the terminating action in AD 89-15-07 was done.
We have reviewed Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. This service bulletin describes procedures for repetitive detailed and ultrasonic inspections, as applicable, for cracks and corrosion of the end fittings of the left and right WLG support beams; and repetitive detailed inspections of the fillet seal for damage, as applicable. The service information describes necessary actions and options after accomplishing the inspections, depending on the findings and configurations. Those actions and options (including Options 1A and 1B) include the following:
• Repairing or changing each end fitting (by installing higher interference fit bushings on the end fitting), which is identified as “Part 7” of this service bulletin, may be done in lieu of the inspections described previously, but is necessary for findings of cracks or corrosion.
• Repetitively inspecting, as described previously, along with an additional inspection of the fillet seal for damage; and applying corrosion inhibiting compound or doing “Part 7” of this service bulletin, if necessary.
• Doing “Post-Part 7 inspections,” which involves actions similar to the inspections for cracks, corrosion, and damage described previously.
The recommended compliance times follow:
• Detailed and ultrasonic inspections: The initial compliance time for these inspections depends on configuration, and is either (1) 8 years on the end fitting and 18 months after the date on this service bulletin (whichever is later); or (2) 10 years on the end fitting and 24 months after the date on this service bulletin (whichever is later). The repetitive interval also depends on configurations and findings, and ranges between 12 and 24 months.
• “Part 7” of this service bulletin: The initial compliance time is the later of 20,000 total flight cycles on an end fitting, and either 18 or 24 months (depending on configuration). The repetitive interval is either 13,000 or 16,000 flight cycles on an end fitting; depending on configuration.
• “Post-Part 7” inspections: The compliance time is 12 years after the repair or change. The subsequent repetitive intervals range between 12 months and 36 months, depending on findings and configurations.
For airplanes on which any crack, corrosion, or damage is found, the compliance time for “Part 7” or application of corrosion inhibitor is before further flight.
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 certain requirements of the existing AD. This proposed AD would also add airplanes and require accomplishing the actions specified in the service information described previously.
We have changed the applicability of AD 89-15-07, amendment 39-6267 (54 FR 30009, July 18, 1989), in this proposed AD to identify model designations as published in the most recent type certificate data sheet for the affected models. We have also changed the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.
This proposed AD would retain certain requirements of AD 89-15-07, amendment 39-6267 (54 FR 30009, July 18, 1989). Since AD 89-15-07 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
In addition, we have revised paragraph (g)(3) of this proposed AD (which was designated as paragraph D. in the existing AD) to require that if any corrosion is found after the effective date of this proposed AD, rework is required before further flight. We have reduced the compliance time to do the rework from “within 12 months” to “before further flight” because extensive service history has shown that the deferral of known airplane damage such as cracks and corrosion has not provided an acceptable level of safety. Service history has shown that the extent of damage from unrepaired corrosion can not reliably be determined by inspection techniques. The damaged corroded material must first be removed and only then can the remaining material dimensions be accurately compared to the allowable damage limits. The extent of unrepaired corrosion damage can not be accurately
Depending on airplane configuration, the new proposed inspections would take between 1 and 4 work hours per airplane, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the new inspections specified in this proposed AD for U.S. operators is between $14,705 and $58,820, or between $85 and $340 per airplane, per inspection cycle.
Operators should note that Conditions 6, 13, and 16 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, specify a detailed inspection. However, the corresponding conditions in the Accomplishment Instructions of this service bulletin specify both detailed and high frequency eddy current (HFEC) inspections. We have confirmed with Boeing that its intent is that this service bulletin specify only a detailed inspection for those conditions.
We estimate that this proposed AD affects 173 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary repairs/replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs/replacements:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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) 89-15-07, Amendment 39-6267 (54 FR 30009, July 18, 1989), and adding the following new AD:
The FAA must receive comments on this AD action by July 16, 2012.
This AD supersedes AD 89-15-07, Amendment 39-6267 (54 FR 30009, July 18, 1989).
This AD applies to The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes; certificated in any category; as identified in Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by new reports of corrosion damage to the end fittings of the wing landing gear (WLG) support beams, and one report of subsequent cracking in the end fittings. We are issuing this AD to detect and correct corrosion and subsequent cracking in the outboard end fittings, which could result in separation of the fitting and damage to adjacent flight control cables and hydraulic systems and consequent reduced controllability of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
This paragraph restates the requirements of paragraphs A., B., C., and D., of AD 89-15-07, Amendment 39-6267 (54 FR 30009, July 18, 1989): For airplanes identified in Boeing Service Bulletin 747-57-2244, Revision 1, dated July 28, 1988: Prior to the accumulation of 30,000 flight hours or 8 years in service, whichever occurs first; or within the next 14 months after August 22, 1989 (the effective date of AD 89-15-07); whichever occurs later; visually inspect around the fitting lug bushings at the wing landing gear (WLG) beam outboard end fittings for corrosion, and ultrasonically inspect the WLG beam outboard end fittings for cracks, in accordance with Boeing Service Bulletin 747-57-2244, Revision 1, dated July 28, 1988. Accomplishing the initial inspections required by paragraph (j) of this AD terminates the inspections required by this paragraph.
(1) If no cracking or corrosion is found, repeat the inspections at intervals not to exceed 18 months until paragraph (j) of this AD has been accomplished.
(2) If cracking is found, prior to further flight, remove the WLG beam outboard fitting, and rework, in accordance with Boeing Service Bulletin 747-57-2244, Revision 1, dated July 28, 1988.
(3) If only corrosion is found, within the next 12 months, rework in accordance with Boeing Service Bulletin 747-57-2244, Revision 1, dated July 28, 1988. The ultrasonic inspections for cracks required by paragraph (g) of this AD must be accomplished at intervals not to exceed 6 months until the rework is accomplished. For any corrosion that is found after the effective date of this AD, the rework must be done before further flight.
This paragraph restates the requirements of paragraph E., of AD 89-15-07, Amendment 39-6267 (54 FR 30009, July 18, 1989): Terminating action for the inspections required by paragraph (g) of this AD consists of rework of the WLG beam outboard fittings, in accordance with Boeing Service Bulletin 747-57-2244, Revision 1, dated July 28, 1988.
For all the actions identified in paragraphs (j) through (t) of this AD, do the actions at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. Where paragraph 1.E., “Compliance” of this service bulletin specifies a compliance time relative to the original issue date of the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD.
For Groups 1 through 3 airplanes, Configurations 1 and 2; and Groups 4 and 5 airplanes: Do detailed and ultrasonic inspections of the end fittings for cracks and corrosion, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
If no crack or corrosion is found during any inspection required by paragraph (j) of this AD, do either of the actions required by paragraph (k)(1) or (k)(2) of this AD.
(1) Repeat the detailed and ultrasonic inspections of the end fittings for cracks and corrosion, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(2) Do a detailed inspection of the end fittings for fillet seal damage and for cracks and corrosion, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(i) If no fillet seal damage, crack, or corrosion is found: Repeat the inspection required by paragraph (k)(2) of this AD.
(ii) If any fillet seal damage is found, but no crack or corrosion is found: Remove the fillet seal, and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(A) If any crack or corrosion is found: Repair or change the end fitting, in accordance with paragraph (l) of this AD.
(B) If no crack or corrosion is found: Apply corrosion inhibiting compound on each end fitting, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009; and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
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If any crack or corrosion is found during any inspection required by paragraph (j) or (k) of this AD: Repair or change the end fitting, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. After accomplishing the repair or change in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, do the applicable actions required by paragraph (j) of this AD.
For Group 6 airplanes: Do a detailed inspection of the end fittings for fillet seal damage and for cracks and corrosion, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(1) If no fillet seal damage, crack, or corrosion is found: Do the detailed inspection of the end fittings for fillet seal damage and for cracks and corrosion, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(i) If no fillet seal damage, crack, or corrosion is found: Repeat the detailed inspection required by paragraph (m)(1) of this AD.
(ii) If any fillet seal damage is found, but no crack or corrosion is found: Remove the fillet seal, and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(A) If any crack or corrosion is found: Repair or change the end fitting, in accordance with paragraph (n) of this AD.
(B) If no crack or corrosion is found: Apply corrosion inhibiting compound on each end fitting, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009; and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part
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(2) If any fillet seal damage is found, but no crack or corrosion is found: Remove the fillet seal, and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(i) If any crack or corrosion is found: Repair or change the end fitting, in accordance with paragraph (n) of this AD.
(ii) If no crack or corrosion is found: Apply corrosion inhibiting compound on each end fitting, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009; and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(A) If any crack or corrosion is found: Repair or change the end fitting, in accordance with paragraph (n) of this AD.
(B) If no crack or corrosion is found: Apply corrosion inhibiting compound, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, and thereafter repeat the inspections required by paragraph (m)(2)(ii) of this AD.
If any crack or corrosion is found during any inspection required by paragraph (m) of this AD: Repair or change the end fitting, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. After accomplishing the repair or change in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, do the applicable actions required by paragraph (m) of this AD.
In lieu of doing Part 1, Part 2, or Part 3 inspections required by this AD: Repair or change the end fitting, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. After accomplishing the repair or change in accordance with Part 7 of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, do the applicable actions required by paragraphs (p) and (r) of this AD. Doing the repair or change terminates the Part 1, 2, or 3 inspections for that part only of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
For Groups 1 through 5 airplanes on which the repair or change specified in Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, has been done: Do detailed and ultrasonic inspections of the end fittings for cracks and corrosion, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. If no crack or corrosion is found, do the actions required by either paragraph (p)(1) or (p)(2) of this AD.
(1) Repeat the detailed and ultrasonic inspections of the end fittings for cracks and corrosion required by paragraph (p) of this AD.
(2) Do a detailed inspection of each end fitting for fillet seal damage, cracks, and corrosion, in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(i) If no fillet seal damage, crack, or corrosion is found: Repeat the inspection required by paragraph (p)(2) of this AD.
(ii) If any fillet seal damage is found, but no crack or corrosion is found: Remove the fillet seal, and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(A) If any crack or corrosion is found: Repair or change the end fitting, as required by paragraph (q) of this AD.
(B) If no crack or corrosion is found: Apply corrosion inhibiting compound on each end fitting, in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009; and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 6 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
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If any crack or corrosion is found during any inspection required by paragraph (p) of this AD: Repair or change the end fitting, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. After accomplishing the repair or change in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, do the applicable actions required by paragraphs (p) of this AD.
For Group 6 airplanes on which the repair or change specified in Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, has been done: Do a detailed inspection of the end fittings for fillet seal damage, cracks, and corrosion, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(1) If no fillet seal damage, crack, or corrosion is found: Do a detailed inspection of each end fitting for fillet seal damage, cracks, and corrosion, in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(i) If no fillet seal damage, crack, or corrosion is found: Repeat the inspection required by paragraph (r)(1) of this AD.
(ii) If any fillet seal damage is found, but no crack or corrosion is found: Do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(A) If any crack or corrosion is found: Repair or change the end fitting as required by paragraph (s) of this AD.
(B) If no crack or corrosion is found: Apply corrosion inhibiting compound on each end fitting, in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009; and repeat the detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 6 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
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(2) If any fillet seal damage is found, but no crack or corrosion is found: Do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(i) If any crack or corrosion is found: Repair or change the end fitting, as required by paragraph (s) of this AD.
(ii) If no crack or corrosion is found: Apply corrosion inhibiting compound on each end fitting, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, and do detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 6 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
(A) If any crack or corrosion is found: Repair or change the end fitting, as required by paragraph (s) of this AD.
(B) If no crack or corrosion is found: Apply corrosion inhibiting compound, in accordance with Part 6 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009; and repeat the detailed and HFEC inspections of each end fitting for cracks and corrosion, in accordance with Part 6 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
If any crack or corrosion is found during any inspection required by paragraph (r) of this AD: Repair or change the end fitting, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009.
In lieu of doing Part 4, Part 5, or Part 6 inspections required by this AD: Repair or change the end fitting, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. After accomplishing the repair or change in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, do the applicable actions required by paragraphs (p) and (r) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved for AD 89-15-07, Amendment 39-6267 (54 FR 30009, July 18, 1989), are approved as AMOCs for the corresponding requirements of this AD.
(1) For more information about this AD, contact Bill Ashforth, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: (425) 917-6432; fax: (425) 917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1, fax 206-766-5680; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Gulfstream Aerospace LP (Type Certificate previously held by Israel Aircraft Industries, Ltd.) Model Galaxy and Gulfstream 200 airplanes. This proposed AD was prompted by reports of degraded brake performance during landing due to improperly-sized wear indicating pins. This proposed AD would require determining the lengths of the wear indicating pins of all brake assemblies, shortening the pin if the wear indicating pin is too long, inspecting for normal brake wear, and replacing brakes with new brakes if necessary. We are proposing this AD to detect and correct improperly-sized wear indicating pins, which, if not corrected, could result in worn-out brake pads and subsequent loss of braking power, which could result in runway overruns.
We must receive comments on this proposed AD by July 16, 2012.
You may send comments by any of the following methods:
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For service information identified in this proposed AD, contact Gulfstream Aerospace Corporation, P.O. Box 2206, Mail Station D-25, Savannah, Georgia 31402-2206; telephone 800-810-4853; fax 912-965-3520; email
You may examine the AD docket on the Internet at
Tom Groves, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA,
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Civil Aviation Authority of Israel (CAAI), which is the aviation authority for Israel, has issued Israeli Airworthiness Directive 32-11-10-13, dated October 31, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Two G200 operators experienced degraded brake performance during landing. Subsequent investigation revealed that in both cases the brake wear pins showed remaining life, but the brakes were worn to the minimum pad thickness specified in the Brake Assembly Component Maintenance Manual (CMM). It was found out that pins of incorrect length were installed during brake assembly overhaul. When the brake pads are fully worn without indication, loss of braking power is expected, possibly causing runway overruns. This constitutes an unsafe condition.
Gulfstream Aerospace LP has issued Service Bulletin 200-32-389, Revision 1, dated October 27, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 155 products of U.S. registry. We also estimate that it would take about 16 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $210,800, or $1,360 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by July 16, 2012.
None.
This AD applies to Gulfstream Aerospace LP (Type Certificate previously held by Israel Aircraft Industries, Ltd.) Model Galaxy and Gulfstream 200 airplanes, certificated in any category, serial numbers 004 through 250 inclusive.
Air Transport Association (ATA) of America Code 32: Landing Gear.
This AD was prompted by reports of degraded brake performance during landing due to improperly-sized wear indicating pins. We are issuing this AD to detect and correct improperly-sized wear indicating pins, which, if not corrected, could result in worn-out brake pads and subsequent loss of braking power, which could result in runway overruns.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 40 days after the effective date of this AD, determine the length of the wear indicating pins of all the brake assemblies, in accordance with the Accomplishment Instructions of Gulfstream Service Bulletin 200-32-389, Revision 1, dated October 27, 2011.
(1) If the length of the pins is within the limits specified in Gulfstream Service Bulletin 200-32-389, Revision 1, dated October 27, 2011, before further flight, perform a normal brake wear inspection in accordance with the Accomplishment Instructions of Gulfstream Service Bulletin 200-32-389, Revision 1, dated October 27, 2011.
(2) If any wear indicating pin is too long, as specified by the limits in Gulfstream Service Bulletin 200-32-389, Revision 1, dated October 27, 2011, before further flight, shorten the pin and perform a normal brake wear inspection, in accordance with the Accomplishment Instructions of Gulfstream Service Bulletin 200-32-389, Revision 1, dated October 27, 2011.
If any brake fails the wear inspection required by paragraphs (g)(1) and (g)(2) of this AD, before further flight, replace the affected brakes with new brakes, in accordance with the Accomplishment Instructions of Gulfstream Service Bulletin 200-32-389, Revision 1, dated October 27, 2011.
This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the Accomplishment Instructions of Gulfstream Service Bulletin 200-32-389, dated October 20, 2011.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Israeli Airworthiness Directive 32-11-10-13, dated October 31, 2011; and Gulfstream Service Bulletin 200-32-389, Revision 1, dated October 27, 2011; for related information.
(2) For service information identified in this AD, contact Gulfstream Aerospace Corporation, P.O. Box 2206, Mail Station D-25, Savannah, Georgia 31402-2206; telephone 800-810-4853; fax 912-965-3520; email pubs@gulfstream.com; Internet
Saint Lawrence Seaway Development Corporation, DOT.
Notice of proposed rulemaking.
The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. Under agreement with the SLSMC, the SLSDC is amending the joint regulations by updating the Seaway Regulations and Rules in various categories. The proposed changes will update the following sections of the Regulations and Rules: Condition of Vessels; Seaway Navigation; Dangerous Cargo; Information and Reports; General; and, Navigation Closing Procedures. These proposed amendments are necessary to take account of updated procedures and will enhance the safety of transits through the Seaway. Several of the proposed amendments are merely editorial or for clarification of existing requirements.
Any party wishing to present views on the proposed amendment may file comments with the Corporation on or before July 2, 2012.
You may submit comments identified by Docket Number SLSDC 2012-0001 by any of the following methods:
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Carrie Mann Lavigne, Chief Counsel, Saint Lawrence Seaway Development Corporation, 180 Andrews Street, Massena, New York 13662; 315/764-3200.
The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. Under agreement with the SLSMC, the SLSDC is proposing to amend the joint regulations by updating the Regulations and Rules in various categories. The proposed changes would update the following sections of the Regulations and Rules: Condition of Vessels; Seaway Navigation; Dangerous Cargo; Information and Reports; General; and, Navigation Closing Procedures. These updates are necessary to take account of updated procedures which will enhance the safety of transits through the Seaway. Many of these proposed changes are to clarify existing requirements in the regulations. Where new requirements or regulations are being proposed, an explanation for such a change is provided below.
The SLSDC is proposing to amend three sections of the Condition of Vessels portion of the joint Seaway regulations. Under section 401.11, “Fairleads”, due to damage from fairleads on new vessels, the SLSDC is proposing that all sharp edges be rounded. In section 401.12, “Minimum requirements—mooring lines and fairleads”, the SLSDC is addressing the use of wire lines on vessels 100 m or less. In section 401.15, “Stern anchors”, the Seaway entities are proposing vessels of more than 125 m in overall length as well as every integrated tug and barge or articulated tug and barge unit greater than 125 m in overall length be equipped with a stern anchor.
Several changes to the Seaway Navigation section are being proposed. The Seaway Corporations are amending its joint rules in section 401.29, “Maximum draft”, to permit vessels using a “Draft Information System” (DIS) to transit the Seaway up to 7 cm (3 inches) above the maximum permissible draft allowed at the time. The use of a DIS is an optional, not a mandatory requirement, to transit the Seaway. The DIS will allow the vessel to transit the Seaway at a draft up to 3 inches (7 cm) more than the published maximum draft with prior approval from the two Seaway entities.
The primary purpose of this proposed amendment is safety. The use of the DIS will ensure that vessels maintain a safe under keel clearance as they make maximum use of the available water column. DIS uses water level measurements, bathymetry of the channel bottom, and squat of the vessel as it moves at different speeds and in different channel types. The squat of a vessel varies depending on the vessel type, hull shape, and the type of channel in which it is operating, and the vessel's speed. By including all the factors, the under keel clearance value is determined in real time. The information on the projected under keel clearance is integrated electronically with chart data, high-resolution bathymetry and other readings on a single bridge display.
The technology features an algorithm, which allows the Master to estimate under keel clearance ahead, offering time for a course change or other required reaction in transit. By Masters having more precise information regarding the available water column, the risk of a vessel touching bottom or grounding is reduced.
In addition to the safety benefits, increasing the maximum allowable draft will increase the Seaway's productivity and competitiveness. Depending on the commodity carried, an additional three inches of draft might account for as much as 360 additional metric tons per voyage.
The use of a DIS tool began in 2003 in the St. Mary's River. In 2006, the Seaway entities conducted 4 trials of the tool used in the St. Mary's River as a proof of concept. Three tests were conducted in the Montreal to Lake Ontario (MLO) section of the Seaway during 2007 under low water conditions. During 2008 tests were conducted in the MLO and Welland Canal sections of the Seaway. In 2009, eight (8) trials were conducted in the Welland Canal section and ten (10) trials were conducted in the MLO section of the Seaway. In 2010 a DIS pilot program was instituted in the MLO and Welland Canal. After successful completion of the test trials and pilot program and to ensure future consistency and reliability of the DIS, the two Seaway entities began the development of a standard DIS specification.
On January 19, 2011, the two Seaway Corporations jointly published an industrial implementation specification entitled, “Implementation Specification—a Draft Information System for the St. Lawrence Seaway” (Specification). Following a public comment period during which comments received were considered in the development of the Specification, a final Implementation Specification was published on the bi-national Web site at
In addition, the two Seaway Corporations, in section 401.32, “Cargo booms—deck cargo” are proposing to require notification of the height of deck cargo in order to determine appropriate wind restrictions.
In the Information and Reports section, a change to section 401.79, “Advance notice of arrival, vessels requiring inspection” is being proposed. The amendments would provide requirements for reporting notice of arrival depending on the vessel's voyage time. Further, vessels requiring inspection or re-inspection would be required to provide a 24-hour notice of
The other changes to the joint regulations are merely editorial or to clarify existing requirements.
This proposed regulation involves a foreign affairs function of the United States and therefore Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required.
I certify that this proposed regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Regulations and Rules primarily relate to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.
This proposed regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et seq.) because it is not a major federal action significantly affecting the quality of the human environment.
The Corporation has analyzed this proposed rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that this proposal does not have sufficient federalism implications to warrant a Federalism Assessment.
The Corporation has analyzed this proposed rule under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.
This proposed regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.
Hazardous materials transportation, Navigation (water), Penalties, Radio, Reporting and recordkeeping requirements, Vessels, Waterways.
Accordingly, the Saint Lawrence Seaway Development Corporation proposes to amend 33 CFR part 401as follows:
1. The authority citation for subpart A of part 401 continues to read as follows:
33 U.S.C. 983(a) and 984(a)(4), as amended; 49 CFR 1.52, unless otherwise noted.
2. In § 401.11, add paragraph (a)(4) to read as follows:
(a) * * *
(4) When passing synthetic lines through a type of fairlead or closed chock acceptable to the Manager and the Corporation all sharp edges of the fairlead, closed chock and/or bulwark shall be rounded to protect the line from chafing or breakage.
3. In § 401.12 revise paragraph (a)(1)(ii) to read as follows:
(a) * * *
(1) * * *
(ii) One synthetic hawser may be hand held or if wire line is used shall be powered. The line shall lead astern from the break of the bow through a closed chock to suitable bitts on deck for synthetic line or led from a capstan, winch drum or windlass to an approved fairlead for a wire line.
4. Revise § 401.15 to read as follows:
(a) Every vessel of more than 125 m in overall length, the keel of which is laid after January 1, 1975, shall be equipped with a stern anchor.
(b) Every integrated tug and barge or articulated tug and barge unit greater than 125 m in overall length which is constructed after January 1, 2003 shall be equipped with a stern anchor.
5. In § 401.28 revise paragraph (d) to read as follows:
(d) Notwithstanding the above speed limits, every vessel approaching a free standing lift bridge shall proceed at a speed that it will be able to stop prior to it reaching the Limit of Approach sign should the raising of the bridge be delayed.
6. Revise § 401.29 to read as follows:
(a) Notwithstanding any provision herein, the loading of cargo, draft and speed of a vessel in transit shall be controlled by the master, who shall take into account the vessel's individual characteristics and its tendency to list or squat, so as to avoid striking bottom.
(b) The draft of a vessel shall not, in any case, exceed 79.2 dm or the maximum permissible draft designated in a Seaway Notice by the Manager and the Corporation for the part of the Seaway in which a vessel is passing.
(c) Any vessel equipped with:
(1) An operational Draft Information System (DIS) Tool verified by a member of the International Association of Classification Societies (IACS) as compliant with the Implementation Specifications found at
(2) Up-to-date electronic navigational charts; and
(3) Up-to-date charts containing high-resolution bathymetric data; and
(4) A pilot plug, if using a portable DIS Tool, will be permitted, when using the DIS Tool, subject to 33 CFR 29(a), to increase their draft by no more than 7 cm above the maximum permissible draft prescribed under 33 CFR 29(b) in effect at the time.
(d) Any vessel intending to use DIS must notify the Manager or the Corporation in writing at least 24-hours prior to commencement of its initial transit in the System with the DIS Tool.
(e) Verification document of the DIS Tool must be kept on board the vessel at all times and made available for inspection.
(f) If for any reason the DIS becomes inoperable, malfunctions, or is not used, the vessel must notify the Manager or the Corporation immediately.
7. In § 401.32 add paragraph (b)(3) to read as follows:
(b) * * *
(3) Seaway Traffic Control Center shall be notified of the height of deck cargo prior to transiting the Seaway or
8. In § 401.44, revise paragraph (b) to read as follows:
(b) Once the mooring lines are on the mooring posts, lines shall be kept slack until the “all clear” signal is given by the lock personnel. When casting off signal is received, mooring lines should be kept slack until the “all clear” signal is given by the lock personnel.
9. In § 401.59, add paragraph (e) to read as follows:
(e) Except as authorized by the Manager or the Corporation, no over the side painting shall be allowed in the Seaway.
10. In § 401.72, revise paragraph (d) to read as follows:
(d) Every vessel carrying radioactive substances shall, when reporting in, give the number and date of issue of any required certificate issued by the Canadian Nuclear Safety Commission (CNSC) and/or the U.S. Nuclear Regulatory Commission (USNRC) authorizing such shipment.
11. Revise § 401.79 to read as follows:
(a)
(1) If your voyage time to CIP 2 is
(2) If your voyage time to CIP 2 is
(3) If there are changes to the electronic NOA, submit them as soon as practicable but at least 12 hours before entering the Seaway at CIP 2.
(4) The NOA must be provided electronically following the USCG National Vessel Movement Center's (NVMC) procedures (
(5) To complete the NOA correctly for Seaway entry, select the following:
(i) “CIP 2” as the Arrival Port,
(ii) “Foreign to Saint Lawrence Seaway” as the Voyage Type, and
(iii) “Saint Lawrence Seaway Transit” as the Arrival State, City and Receiving Facility.
(b)
(1)
(2)
(3) Inland domestic vessels not participating in the “Self-Inspection Program” are subject to Seaway inspection prior to every transit of the Seaway.
(4) Tub/barge combinations not on the “Seaway Approved Tow” list are subject to Seaway inspection prior to every transit of the Seaway.
12. In § 401. 84, revise paragraph (c) to read as follows:
(c) Any malfunction of equipment on the vessel
13. In § 401.89, add paragraph (a)(4) to read as follows:
(a) * * *
(4) The vessel is not in compliance with flag state and/or classification society regulations.
14. Revise § 401.92 to read as follows:
No vessel shall winter within the Seaway or lay-up within the Seaway during the navigation season except with the written permission of the Manager or the Corporation and subject to the conditions and charges that may be imposed.
15. In Schedule II to Subpart A of Part 401—Table of Speeds, revise section number 2 to read as follows:
Saint Lawrence Seaway Development Corporation.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve Illinois' negative declaration and request for EPA withdrawal of its 111(d)/129 State Plan to control air pollutants from “Large Municipal Waste Combustors” (LMWC). On February 1, 2012, the Illinois Environmental Protection Agency submitted a letter of certification to EPA that the only designated facility in the State Plan ceased operation and is completely shut down and requested that EPA withdraw the State Plan implementing the emission guidelines for LMWCs.
Comments must be received on or before July 2, 2012.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2012-0312, by one of the following methods:
•
•
•
•
•
Please see the direct final rule which is located in the Rules section of this
Margaret Sieffert, Environmental Engineer, Environmental Protection Agency, Region 5, 77 West Jackson Boulevard (AT-18J), Chicago, Illinois 60604, (312) 353-1151,
In the Rules section of this
Federal Communications Commission.
Petition for reconsideration.
In this document, Petitions for Reconsideration (Petitions) have been filed in the Commission's Rulemaking proceeding against the adoption of a national cap of 50 applications and a market-based cap of one application per applicant per market for pending Auction No. 83 translator applications.
Oppositions to the Petition must be filed on or before June 15, 2012. Replies to an opposition must be filed on or before June 25, 2012.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Kelly Donohue, Media Bureau, 202-418-8192.
This is a summary of Commission's document, Report No. 2950, released May 24, 2012. The full text of this document is available for viewing and copying in Room CY-B402, 445 12th Street SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). The Commission will not send a copy of this
Subject: Creation of a Low Power Radio Service, published at 77 FR 21002, April 9, 2012, in MB Docket No. 99-25, and published pursuant to 47 CFR 1.429(e).
Number of Petitions Filed: 5.
Fish and Wildlife Service, Interior.
Proposed rule; availability of supplementary documents and announcement of public hearing.
We, the U.S. Fish and Wildlife Service (Service), announce the
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Brian Kelly, State Supervisor, Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, ID 83709; telephone 208-378-5243; facsimile 208-378-5262. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
We will accept written comments and information during this reopened comment period on our proposed critical habitat for the southern Selkirk Mountains population of woodland caribou that was published in the
(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 habitat for the southern Selkirk Mountains population of woodland caribou in the United States.
(b) What areas which were occupied at the time of listing and contain the physical and biological features essential to the conservation of the species should be included in the designation and why.
(c) What areas outside the geographical area occupied at the time of listing are essential for the conservation of the species and why.
(d) Special management considerations or protections that may be required for the physical or biological features essential to the conservation of the southern Selkirk Mountains population of woodland caribou that have been identified in this proposal, including management for the potential effects of climate change.
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on the proposed critical habitat.
(4) Any reasonably foreseeable economic, national security, or other relevant impacts of the proposed critical habitat designation. We are particularly interested in any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.
(5) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act, and why.
(6) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
(7) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate.
(8) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the draft economic analysis, 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.
Section 4(b)(5)(E) of the Act requires that we hold one public hearing on a proposed regulation, if any person files a request for such a hearing within 45 days after the date of publication of a general notice. At the request of the Governor of Idaho and the Commissioners of Boundary County, Idaho, we held an informational session (a brief presentation about the proposed rule with a question-and-answer period), and a public hearing on April 28, 2012, in Bonners Ferry, Idaho (77 FR 16512; March 21, 2012). With this notice, we are announcing an additional informational session and public hearing (see
The Service has conducted several outreach efforts to be responsive to public requests for additional information. On January 9, 2012, we presented information on the proposed critical habitat designation in Bonners Ferry, Boundary County, Idaho, at the request of the Kootenai Valley Resource Initiative (KVRI), and on January 24, 2012, we held an informational meeting in Priest Lake, at the request of the Bonner County Idaho Commission. On February 13, 2012, we participated in a meeting in Boundary County, Idaho, sponsored by the KVRI. On February 28, 2012, and March 26, 2012, we participated in meetings with the Bonner County Idaho Commission, and on April 19, 2012, we participated in a meeting with the Boundary County Idaho Commission. All meetings were open to the public.
Our final determination concerning critical habitat for the southern Selkirk Mountains population of woodland caribou will take into consideration all written comments we receive during the comment periods, comments from peer reviewers, comments and public testimony received during the public hearings, and all information we receive in response to the draft economic analysis. All public comments will be included in the public record for this rulemaking. On the basis of public comments, we may, during the development of our final determination, find that areas within the proposed designation do not meet the definition of critical habitat, that some modifications to the described boundaries are appropriate, or that areas may or may not be appropriate for exclusion under section 4(b)(2) of the Act.
If you previously submitted comments or information on this proposed rule, please do not resubmit them. We have incorporated them into the public record, and will fully consider them in the preparation of our final determination.
You may submit your comments and materials concerning our proposed rule or draft economic analysis by one of the methods listed in
We will post your entire comment—including any personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and draft economic analysis, will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the designate of critical habitat for the southern Selkirk Mountains population of woodland caribou. For a description of the previous Federal actions concerning the southern Selkirk Mountains population of woodland caribou, please refer to the proposed critical habitat rule, as described below.
On November 30, 2011 (76 FR 74108), we published a proposed rule to designate critical habitat for the southern Selkirk Mountains population of woodland caribou. We proposed to designate as critical habitat approximately 375,562 acres (ac) (151,985 hectares (ha)) in a single unit (with two subunits) in Boundary and Bonner counties in Idaho, and Pend Oreille County in Washington. That proposal had a 60-day comment period, ending on January 30, 2012. On March 21, 2012 (77 FR 16512), we reopened the comment period for an additional 60 days, and we conducted a public informational session and public hearing on April 28, 2012, in Bonners Ferry, Idaho, at the request of the Governor of Idaho and the Bonner County, Idaho, Commissioners.
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 provisions of section 4 of the Act, on which are found those physical or biological features essential to the conservation of the species and which 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 by the Secretary that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7(a)(2) 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 that may affect critical habitat must consult with us on the effects of their proposed actions pursuant to the requirements of 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, and after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that failure to designate such area will result in the extinction of the species concerned.
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
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 available scientific and commercial data available, information obtained during the comment period concerning economic impacts, impacts to national security, or any other relevant impacts of the proposed designation. With regard to economic impacts, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see
The purpose of the draft economic analysis is to identify and analyze the reasonably foreseeable potential economic impacts associated with the proposed critical habitat designation for the southern Selkirk Mountains population of woodland caribou. The draft economic analysis describes the economic impacts of all potential conservation efforts for the species; some of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal or State regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. In other words, these incremental impacts would not occur but for the designation. These incremental impacts produce the costs that we consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts incremental impacts likely to occur if we finalize the proposed critical habitat designation.
As described above, the draft economic analysis separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the draft economic analysis, 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 draft economic analysis.
The draft economic analysis provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the southern Selkirk Mountains population of woodland caribou over the next 20 years, from 2012 through 2031. We determined that this 20-year timeframe was the appropriate period for analysis because the availability of land-use planning information becomes very limited for most activities beyond that timeframe. The draft economic analysis 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 and other regulatory protections. The draft economic analysis quantifies economic impacts of the southern Selkirk Mountains population of woodland caribou conservation efforts associated with the following categories of activity: (1) Timber harvest; (2) fire, fire suppression, and forest management practices; (3) transportation and electricity projects; (4) mining; and (5) recreational activities.
The primary long-term threat to the southern Selkirk Mountains population of woodland caribou is the ongoing loss and fragmentation of contiguous old growth forests and forest habitats due to a combination of timber harvest, wildfires, and human activities that involve road development. The effects to woodland caribou associated with habitat loss and fragmentation are: (1) Reduction of the amount of space available for caribou, limiting the ecological carrying capacity; (2) reduction of the arboreal lichen supply, which is the caribou's key winter food source; (3) potential impacts to caribou movement patterns; (4) potential effects to the caribou's use of remaining fragmented habitat because suitable habitat parcels will be smaller and discontinuous; and (5) increased susceptibility of caribou to predation as available habitat is compressed and fragmented (Stevenson
Approximately 79 percent of the proposed critical habitat area is on Federal land, most of which is managed by the U.S. Forest Service (USFS). The Bureau of Land Management (BLM) manages 231 ac (93 ha) of the proposed critical habitat as a wilderness study area and for grizzly bear conservation, and approximately 294,716 ac, (119,065 ha) are managed by the USFS. National Forest lands involved in the proposed designation include the Idaho Panhandle National Forests (IPNF) in Idaho and Washington, and Colville National Forest (CNF) in Washington. Land and resource management plans (LRMPs) for the IPNF and CNF have been revised to incorporate management objectives and standards to address the above identified threats to the southern Selkirk Mountains population of woodland caribou, as a result of section 7 consultation between the Service and USFS (USFWS 2001a, b). Standards for management of habitat for the southern Selkirk Mountains population of woodland caribou were incorporated into the IPNF's 1987 and CNF's 1988 LRMP, to avoid the likelihood of jeopardizing the continued existence of the species, to contribute to caribou conservation, and to ensure consideration of the biological needs of the species during forest management planning and implementation actions (USFS 1987, pp. II-6, II-27, Appendix N; USFS 1988, pp. 4-10—4-17, 4-38, 4-42, 4-73—4-76, Appendix I). A review of our section 7 consultation records with the USFS indicates that no project modifications have been required to date, because the activities were either not within habitat for the southern Selkirk Mountains population of woodland caribou, or conservation measures were already incorporated into project designs to avoid impacts to the species or its habitat.
Of the remaining 21 percent of the proposed critical habitat designation, 17 percent (65,218 ac, 26,393 ha) is State
Due to the extensive existing baseline protections for caribou and other listed species (grizzly bear (
The proposed critical habitat designation is unlikely to generate economic impacts beyond administrative costs of section 7 consultation associated with the adverse modification analysis. Further, project proponents and land managers are aware of the species' presence throughout its range, and the need to consult with the Service for projects that have a Federal nexus that may affect the species. In conclusion, we have no information that would indicate the proposed designation of critical habitat for the southern Selkirk Mountains population of woodland caribou would change the outcome of future section 7 consultations. Any conservation measures implemented to minimize impacts to the species would very likely be sufficient to also minimize impacts to critical habitat. Therefore, we do not believe any additional conservation measures would be needed solely to minimize impacts to critical habitat.
We are soliciting data and comments from the public on the draft economic analysis, 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 the species.
In our November 30, 2011, proposed rule (76 FR 74018), 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 draft economic analysis. We have now made use of the draft economic analysis 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). For example, 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
To determine if the proposed designation of critical habitat for the southern Selkirk Mountains population of woodland caribou would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as timber companies. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. 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 southern Selkirk Mountains population of woodland caribou is 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 draft economic analysis, 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 southern Selkirk Mountains population of woodland caribou. As estimated in Chapter 4 of the draft economic analysis, incremental impacts of the proposed designation are limited to additional administrative costs of considering adverse modification during section 7 consultation with the Service, as well as incremental costs associated with timber harvesting and permitting delays on private land. Approximately 17 percent of the total estimated incremental costs are projected to be borne by Federal agencies, and approximately 83 percent are projected to be incurred by private entities. Small entities may participate in section 7 consultation as a third party (the primary consulting parties being the Service and the Federal action agency); therefore, it is possible that small entities may spend additional time considering critical habitat during section 7 consultation for the southern Selkirk Mountains population of woodland caribou. Some of the forecast consultations for the southern Selkirk Mountains population of woodland caribou may involve third parties, such as timber companies and private land owners who may want to harvest timber on their land. The maximum annualized incremental impact to third parties is anticipated to total $107,000, based on a 7 percent discount rate; such costs are expected to be distributed between multiple third parties. The number of landowners is not known, therefore, we are unable to determine the incremental costs per entity. However, even if all incremental costs were borne by one small timber tract operations entity, which is unlikely, the entity would experience a 0.86 percent annual loss in revenue. This estimate is based on an average revenue for small timber tract operations companies of $3.53 million. Small entities are consequently anticipated to bear a relatively low cost impact as a result of the designation of critical habitat for the southern Selkirk Mountains population of woodland caribou. We do not believe this designation will have a significant impact on these small entities or affect a substantial number of them. Please refer to Appendix A of the draft economic analysis 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. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed 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.
A complete list of references cited in this rule is available on the internet at
The primary authors of this notice are the staff members of the Idaho Fish and Wildlife Office, Pacific Region, U.S. Fish and Wildlife Service.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
United States Commission on Civil Rights.
Notice of meeting.
Friday, June 8, 2012; 9:30 a.m. EDT.
624 Ninth Street NW.,Room 540,Washington, DC 20425.
This meeting is open to the public.
Lenore Ostrowsky, Acting Chief, Public Affairs Unit (202) 376-8591.
Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact Pamela Dunston at (202) 376-8105 or at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Robert A. Garrott, Ecology Department, Montana State University, 310 Lewis Hall, Bozeman, MT, 59717, has applied in due form for a permit to conduct research on Weddell seals (
Written, telefaxed, or email comments must be received on or before July 2, 2012.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376; and
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562) 980-4001; fax (562) 980-4018.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Colette Cairns or Tammy Adams, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The purpose of the research is to evaluate how environmental variability and individual heterogeneity affects the population dynamics of Weddell seals in the Antarctic. The applicant proposes to continue long-term studies of the Weddell seal population in the Erebus Bay, McMurdo Sound, Ross Sea and White Island areas of Antarctica. Up to 425 adults and 700 pups would be captured annually. Animals would be weighed, tissued sampled, flipper tagged, and released. A subset of 200 pups annually would have a small temperature logging tag attached. The applicant requests authorization to opportunistically collect, import, and export Weddell seal parts and carcasses. Annually up to 2,000 Weddell, 50 crabeater (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) will hold a three-day meeting on June 19-21, 2012 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Tuesday, Wednesday and Thursday, June 19-21, starting at 9 a.m. on Tuesday, and at 8:30 a.m. on Wednesday and Thursday.
The meeting will be held at the Holiday Inn by the Bay, 88 Spring Street, Portland, ME 04101; telephone: (207) 775-2311; fax: (207) 761-8224.
Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950; telephone (978) 465-0492.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
Following introductions and any announcements, brief reports will be provided by the NEFMC Chairman and Executive Director, the Acting NOAA Fisheries Regional Administrator (Northeast Region), the Northeast Fisheries Science Center and Mid-Atlantic Fishery Management Council liaisons, NOAA General Counsel, representatives of the U.S. Coast Guard and the Atlantic States Marine Fisheries Commission, and staff from the regional Vessel Monitoring Systems Operations and Law Enforcement offices. The Council will then receive an update from NOAA Fisheries Northeast Regional Office staff about the development of a new amendment to address Standard Bycatch Reporting Methodology in all NEFMC fishery management plans (FMPs).
Following a lunch break, the Northeast Fisheries Science Center (NEFSC) will present a briefing on their new social science data collection efforts. Following this report, the Council's Habitat Committee will provide an overview of the discretionary provisions of the Magnuson-Stevens Fishery Conservation and Management Act that relate to deep sea corals. Its members may ask the Council to consider removing the coral alternatives from the Omnibus Essential Fish Habitat Amendment currently under development and address them in a separate action. There also will be an NEFSC presentation summarizing the most recent scientific information about climate change and its impact on fisheries in the Northeast. NOAA Fisheries staff will then address scoping for Amendment 7 to the Consolidated Highly Migratory Species Fishery Management Plan. This will include the scope and significance of issues to be analyzed in a draft environmental impact statement on management measures that address Atlantic bluefin tuna (BFT) management. Through the scoping process, NMFS will determine if existing measures are the best means of achieving certain management objectives for BFT and provide flexibility for future management. NMFS also will hold a scoping hearing on Monday evening, June 18 at the same location as the Council meeting for interested stakeholders and the public. Attendees are encouraged to check
The Council will use the entire day on Wednesday to review and approve final measures to be included in Amendment 5 to the Atlantic Herring FMP. Amendment 5 proposes to establish a catch monitoring program for the herring fishery and address bycatch. It may include: adjustments to the fishery management program; measures to address carrier vessels and transfers at-sea; trip notification and permitting, and reporting requirements. If approved, other measures may address interactions with the Atlantic mackerel fishery, allocate observer coverage on limited access herring vessels, maximize sampling and address net slippage, address river herring bycatch and establish criteria for midwater trawl vessel access to groundfish closed areas.
The third and final day of the NEFMC meeting will begin with reports from the Monkfish and Whiting Committees. The Monkfish Committee will ask the Council to consider a motion deferred from the April Council meeting that would remove Individually Transferrable Quotas from the range of alternatives under development in Amendment 6 to the Monkfish FMP. The Whiting Committee will ask for final approval of Amendment 19 draft management measures including alternatives to increase the whiting possession limit from 30,000 up to 40,000 pounds for vessels using trawls with 3-inch or larger mesh, in all or part of the Southern New England and Mid-Atlantic Exemption Areas. The rest of the day will be spent on issues that relate to the Northeast multispecies stock complex. The Council will discuss and possibly propose action to mitigate the impact of the low catch limits recently set for Georges Bank yellowtail flounder. It also will: receive a summary of the scoping comments submitted for proposed Amendment 18 to the Northeast Multispecies FMP; approve initial action on a framework adjustment to modify sector measures (including monitoring requirements), as well as set acceptable biological catches for fishing year 2013-15; and adjust annual catch limits and accountability measures.
Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Gulf of Mexico Fishery Management Council (Council) will convene public meetings.
The meetings will be held June 18-21, 2012.
The meetings will be held at the Hilton Westshore Airport Hotel, 2225 N. Lois Avenue; Tampa, FL; telephone: (813) 877-6688.
Dr. Stephen Bortone, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The Council will conclude its meeting at approximately 3:45 p.m.
Although other non-emergency issues not on the agendas may come before the Council and Committees for discussion, in accordance with the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during these meetings. Actions of the Council and Committees will be restricted to those issues specifically identified in the agendas and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take action to address the emergency. The established times for addressing items on the agenda may be adjusted as necessary to accommodate the timely completion of discussion relevant to the agenda items. In order to further allow for such adjustments and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date/time established in this notice.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (see
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (the Corporation), has submitted a public information collection request (ICR) entitled Segal AmeriCorps Education Award Matching Program Commitment Form for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Calvin Dawson, at (202) 606-6897 or email to
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
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The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to 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.
A 60-day public comment Notice was published in the
On September 23, 2011, the U.S. Department of Education (ED) invited State educational agencies (SEAs) to request flexibility pursuant to the authority in section 9401 of ESEA, which allows the Secretary of Education to waive, with certain exceptions, any statutory or regulatory requirement of the ESEA for an SEA that receives funds under a program authorized by the ESEA and requests a waiver. In order to ensure that SEAs receiving ESEA flexibility are continuing to meet the intent and purpose of Title I of ESEA, including meeting the educational needs of low-achieving students, closing achievement gaps, and holding schools, local educational agencies, and SEAs accountable for improving the academic achievement of all students, ED will continue to collect all data related to student proficiency rates as well as performance against the annual measurable objectives. This collection will be applicable to SEAs with approved flexibility requests.
Interested persons are invited to submit comments on or before July 30, 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 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 Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Department of Education.
Notice.
This document provides notice of the renewal of the computer matching program between the U.S. Department of Education (ED) and the Internal Revenue Service (IRS). The computer matching program will begin on the effective date specified in paragraph 5.
ED originally published the notice of the matching program between ED and IRS in the
This notice is provided under the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) and the Computer Matching and Privacy Protection Amendments of 1990 (Pub. L. 101-508) (Privacy Act); the Office of Management and Budget (OMB) Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988, 54 FR 25818 (June 19, 1989); and OMB Circular A-130, Appendix 1.
The U.S. Department of Education and the Internal Revenue Service.
The purpose of this matching program, entitled Taxpayer Address Request (TAR), is to permit ED to have access to the mailing address of any taxpayer who owes an overpayment of a grant awarded under subpart 1 of part A of title IV of the Higher Education Act of 1965, as amended (HEA) or who has defaulted on a loan made under parts B, D, or E of title IV of the HEA. ED will use taxpayer addresses to collect grant overpayments and loan debts.
In accordance with section 6103(m)(4)(B) of the Internal Revenue Code (IRC) (26 U.S.C. 6103(m)(4)(B)), the computer matching agreement between ED and IRS provides for redisclosure by the Secretary of Education of a taxpayer's mailing address to any lender, or State or nonprofit guarantee agency that is participating under part B or D of title IV of the HEA, or any educational institution with which the Secretary of Education has an agreement under subpart 1 of part A or part D or E of title IV of the HEA. In addition, this matching program permits ED to have access to the mailing address of a taxpayer for use by ED and its agents for purposes of locating such taxpayer to collect or compromise a Federal claim against the taxpayer in accordance with 31 U.S.C. 3711, 3717, and 3718.
The information contained in the IRS database is referred to as the TAR, and the matching program between ED and IRS is authorized under section 6103(m)(2) and (m)(4) of the IRC (26 U.S.C. 6103(m)(2) and (m)(4)).
The records to be used in the match are described as follows:
ED will provide to the IRS the Social Security number (SSN) and first four letters of the last name of each student who has defaulted under a loan program authorized under part B, D, or E of title IV of the HEA or who owes a grant overpayment for a grant authorized under subpart 1 of part A of title IV of the HEA. This information will be extracted from ED's system of records entitled “Common Services for Borrowers (CSB)” (18-11-16) (71 FR 3503 (January 23, 2006)).
The ED data described in the preceding paragraph will be matched against the IRS' system of records, CADE Individual Master File (IMF), Treasury/IRS 24.030 (last published at 73 FR 13304 (March 12, 2008)) in order to collect the most recent mailing address of each taxpayer who matches the SSN and first four letters of the last name as provided by ED.
The matching program will become effective at the latest of the following dates: (1) 40 Days after the signing of the transmittal letter sending the computer matching program report to Congress and OMB, unless OMB disapproves the matching program within the 40-day review period; (2) if OMB waives 10 days of the 40-day review period, then 30 days after the signing of the transmittal letter sending the computer matching program report to Congress and OMB; or (3) 30 days after publication of this notice in the
Individuals wishing to comment on this matching program or obtain additional information about the program, including requesting a copy of the computer matching agreement between ED and IRS, may contact Marian Currie, Management and Program Analyst, Federal Student Aid, U.S. Department of Education, 830 First Street NE., Union Center Plaza, room #43B2, Washington, DC 20202-5320. Telephone: 202-377-3212; and as a secondary contact, Dwight Vigna, Director, Default Division, Federal Student Aid, U.S. Department of Education, 830 First Street NE., Union Center Plaza, room #41F2, Washington, DC 20202-5320. Telephone: (202) 377-3436. If you use a telecommunications device for the deaf (TTD) or a text telephone (TTY), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities can obtain this document in an alternative format (e.g., braille, large print, audiotape, or computer diskette) on request to either contact person listed in the previous paragraph.
You may also access documents of the Department published in the
The Privacy Act of 1974, as amended (5 U.S.C. 552a) and Sections 6103(m)(2) and (m)(4) of the Internal Revenue Code (26 U.S.C. 6103(m)(2) and (m)(4)).
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Comments must be submitted on or before July 30, 2012.
Submit your comments, identified by Docket ID No. EPA-HQ-OA-2006-0278, by one of the following methods:
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Teree Henderson, Office of Small Business Programs, Mailcode: 1230T, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-566-2222; fax number: 202-566-0548; email address:
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OA-2006-0278, which is available for online viewing at
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
Affected entities: Entities potentially affected by this action are all recipients of EPA financial assistance agreements,
The EPA DBE Program also includes contract administration requirements designed to prevent unfair practices that adversely affect DBEs. There are three forms associated with these requirements: EPA Form 6100-2 (DBE Subcontractor Participation Form), EPA Form 6100-3 (DBE Subcontractor Performance Form), and EPA Form 6100-4 (DBE Subcontractor Utilization Form). The requirements to complete these forms are intended to prevent any “bait and switch” tactics at the subcontract level by prime contractors which may circumvent the spirit of the DBE Program.
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There will be a change in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. The 6100-2, -3, and -4 forms have been revised to include more detailed instructions, which should decrease the amount of time it takes to complete each form.
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 of Charter Renewal.
Notice is hereby given that the Environmental Protection Agency (EPA) has determined that, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2, the EPA Board of Scientific Counselors Advisory Board (BOSC) is a necessary committee which is in the public interest. Accordingly, BOSC will be renewed for an additional two-year period. The purpose of BOSC is to provide advice and recommendations to the Administrator regarding science and engineering research, programs and plans, laboratories, and research-management practices. Inquiries may be directed to Greg Susanke, U.S. EPA, (Mail Code 8104R), 1200 Pennsylvania Avenue NW., Washington, DC 20460, telephone (202) 564-9945, or susanke.greg@epa.gov.
Environmental Protection Agency (EPA).
Notice; establishment of a Federal Advisory Committee.
As required by section 9(a)(2) of the Federal Advisory Committee Act, we are giving notice that EPA is establishing the Great Lakes Advisory Board (GLAB). The purpose of the GLAB is to provide advice to the Administrator in her capacity as Chair of the Inter-Agency Task Force established per Executive Order 13340 (May 18, 2004), on matters related to Great Lakes restoration and protection. The major objectives will be to provide advice and recommendations on: Great Lakes protection and restoration policy; long term goals and objectives for Great Lakes protection and restoration; and annual priorities to protect and restore the Great Lakes that may be used to help inform budget decisions.
EPA has determined that this federal advisory committee is in the public interest and will assist the EPA in performing its duties and responsibilities. Copies of the GLAB's charter will be filed with the appropriate congressional committees and the Library of Congress.
Rita Cestaric, U.S. Environmental Protection Agency, 77 W. Jackson, Chicago, IL 60604, Email address:
The GLAB will be composed of approximately fifteen (15) members who will serve as representative members, Regular Government Employees (RGEs), or Special Government Employees (SGEs). The GLAB expects to meet in person or by electronic means (e.g., telephone, videoconference, webcast, etc.) approximately two (2) times a year, or as needed and approved by the Designated Federal Officer (DFO). Meetings will be held in the Great Lakes region and Washington, DC. The GLAB will be examined annually and will exist until the EPA determines that the GLAB is no longer needed. The charter will be in effect for two years from the date it is filed with Congress. After the initial two-year period, the charter may be renewed as authorized in accordance with Section 14 of FACA (5 U.S.C. App. 2 § 14).
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid control number. Comments are requested concerning whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written comments should be submitted on or before July 2, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via fax 202-395-5167, or via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
(a) State equipment distribution programs, other public programs, and private entities may submit applications for NDBEDP certification to the Commission. For each state, the Commission will certify a single program as the sole authorized entity to participate in the NDBEDP and receive reimbursement from the TRS Fund.
(b) Each program certified under the NDBEDP must submit certain program-related data electronically to the Commission, as instructed by the NDBEDP Administrator, every six months, commencing with the start of the pilot program.
(c) Each program certified under the NDBEDP must retain all records associated with the distribution of equipment and provision of related services under the NDBEDP for two years following the termination of the pilot program.
(d) Each program certified under the NDBEDP must obtain verification that NDBEDP applicants meet the definition of an individual who is deaf-blind.
(e) Each program certified under the NDBEDP must obtain verification that NDBEDP applicants meet the income eligibility requirements.
(f) Programs certified under the NDBEDP shall be reimbursed for the cost of equipment that has been distributed to eligible individuals and authorized related services, up to the state's funding allotment under this program. Within 30 days after the end of each six-month period of the Fund Year, each program certified under the NDBEDP pilot must submit documentation that supports its claim for reimbursement of the reasonable costs of equipment and related services.
On March 20, 2012 in document DA 12-430, the Commission released an order to conditionally waive the requirement in section (f), above, for NDBEDP certified programs to submit reimbursement claims at the end of each six-month period of the TRS Fund Year to permit certified programs to submit reimbursement claims as frequently as monthly. Each certified program that wishes to take advantage of this waiver will be permitted to elect a monthly or quarterly reimbursement schedule, must notify the TRS Fund Administrator of its election at the start of each Fund Year, and must maintain that schedule for the duration of the Year.
Parties filing petitions for exemption based on economic burden, requests for Commission determinations of technical feasibility and achievability, requests for purpose-based waivers, or responses to complaints alleging violations of the Commission's rules may seek confidential treatment of information they provide pursuant to the
The Commission is not requesting that individuals who file complaints alleging violations of the Commission's rules (complainants) submit confidential information (e.g., credit card numbers, social security numbers, or personal financial information) to the Commission. The Commission requests that complainants submit their names, addresses, and other contact information, which Commission staff needs to process complaints. Any use of this information is covered under the routine uses listed in the Commission's SORN, FCC/CGB-1, “Informal Complaints and Inquiries.”
The PIA that the FCC completed on June 28, 2007 gives a full and complete explanation of how the FCC collects, stores, maintains, safeguards, and destroys PII, as required by OMB regulations and the Privacy Act, 5 U.S.C. 552a. The PIA may be viewed at:
Also, the Commission will prepare a revision to the SORN and PIA to cover the PII collected related to this information collection, as required by OMB's Memorandum M-03-22 (September 26, 2003) and by the Privacy Act, 5 U.S.C. 552a.
The following rule sections and other requirements contain revised information collection requirements for which the Commission is seeking approval from the Office of Management and Budget (OMB):
(a) 47 CFR 79.4(c)(1)(ii) and 47 CFR 79.4(c)(2)(ii) require video programming owners (VPOs) and video programming distributors and providers (VPDs) to agree upon a mechanism to inform VPDs on an ongoing basis whether video programming is subject to the IP closed captioning requirements. The Commission considered and rejected adopting a single specific mechanism that could impose greater information collection burdens on small businesses. 47 CFR 79.4(c)(2)(ii) requires VPDs to make a good faith effort to identify video programming subject to the IP closed captioning requirements using the agreed upon mechanism. A VPD may rely in good faith on a certification by a VPO that video programming need not be captioned if: (A) The certification includes a clear and concise explanation of why captioning is not required; and (B) the VPD is able to produce the certification to the Commission in the event of a complaint. VPDs may seek Commission determinations that other proposed mechanisms provide adequate information for them to rely on the mechanisms in good faith.
(b) 47 CFR 79.4(c)(2)(iii) requires VPDs to make contact information available to end users for the receipt and handling of written IP closed captioning complaints. The contact information required for written complaints shall include the name of a person with primary responsibility for IP captioning issues and who can ensure compliance with the IP closed captioning rules. In addition, this contact information shall include the person's title or office, telephone number, fax number, postal mailing address, and email address. VPDs must keep this information current and update it within 10 business days of any change.
(c) 47 CFR 79.4(d)(1) permits VPOs and VPDs to petition the Commission for a full or partial exemption from the IP closed captioning requirements, which the Commission may grant upon a finding that the requirements would be economically burdensome. 47 CFR 79.4(d)(2) requires the petitioner to support a petition for exemption with sufficient evidence to demonstrate that compliance with the requirements for closed captioning of IP-delivered video programming would be economically burdensome. The term “economically burdensome” means imposing significant difficulty or expense. The Commission will consider the following factors when determining whether the requirements for closed captioning of IP-delivered video programming would be economically burdensome: (i) The nature and cost of the closed captions for the programming; (ii) the impact on the operation of the VPD or VPO; (iii) the financial resources of the VPD or VPO; and (iv) the type of operations of the VPD or VPO. 47 CFR 79.4(d)(3) provides that, in addition to these factors, the petitioner must describe any other factors it deems relevant to the Commission's final determination and any available alternatives that might constitute a reasonable substitute for the IP closed captioning requirements including, but not limited to, text or graphic display of the content of the audio portion of the programming. The Commission will evaluate economic burden with regard to the individual outlet. 47 CFR 79.4(d)(4) requires the petitioner to electronically file its petition for exemption, and all subsequent pleadings related to the petition. 47 CFR 79.4(d)(6) permits any interested person to electronically file comments or oppositions to the petition within 30 days after release of the public notice of the petition. Within 20 days after the close of the period for filing comments or oppositions, the petitioner may reply to any comments or oppositions filed. 47 CFR 79.4(d)(7) requires persons who file comments or oppositions to the petition to serve the petitioner with copies of those comments or oppositions and to include a certification that the petitioner was served with a copy. Any petitioner filing a reply to comments or oppositions must serve the commenting or opposing party with a copy of the reply and must include a certification that the party was served with a copy.
Comments or oppositions and replies shall be served upon a party, its attorney, or its other duly constituted agent by delivering or mailing a copy to the party's last known address or by sending a copy to the email address last provided by the party, its attorney, or other duly constituted agent. 47 CFR 79.4(d)(8) provides that, upon a finding of good cause, the Commission may lengthen or shorten any comment period and waive or establish other procedural requirements. 47 CFR 79.4(d)(9) requires persons filing petitions and responsive pleadings to include a detailed, full showing, supported by affidavit, of any facts or considerations relied on. Overall, while there is some burden associated with requesting an exemption, when granted, an exemption will relieve the entity from complying with the IP closed captioning requirements.
(d) 47 CFR 79.4(e)(1) provides that complaints concerning an alleged violation of the IP closed captioning requirements shall be filed in writing with the Commission or with the VPD responsible for enabling the rendering or pass through of the closed captions for the video programming within sixty (60) days after the date the complainant experienced a problem with captioning. A complaint filed with the Commission must be directed to the Consumer and
(e) Under the CVAA, the requirements of Section 203 only apply to the extent they are “technically feasible.” Parties may raise technical infeasibility as a defense to a complaint or, alternatively, may file a request for a ruling under Section 1.41 of the Commission's rules before manufacturing or importing the product.
(f) 47 CFR 79.103(b)(3)(i) permits manufacturers of apparatus that use a picture screen of less than 13 inches in size to petition the Commission for a full or partial exemption from the closed captioning requirements pursuant to Section 1.41 of the Commission's rules, which the Commission may grant upon a finding that the requirements are not achievable. Such manufacturers may also assert that such apparatus is fully or partially exempt as a response to a complaint, which the Commission may dismiss upon a finding that the requirements are not achievable. 47 CFR 79.103(b)(3)(ii) requires the petitioner or respondent to support a petition for exemption or a response to a complaint with sufficient evidence to demonstrate that compliance with the requirements is not “achievable” where “achievable” means with reasonable effort or expense. The rule further sets forth certain factors that the Commission will consider when determining whether the requirements are not “achievable.”
(g) 47 CFR 79.103(b)(4) permits manufacturers of apparatus to petition the Commission for a full or partial waiver of the closed captioning requirements, which the Commission may grant upon a finding that the apparatus meets one of the following provisions: (i) The apparatus is primarily designed for activities other than receiving or playing back video programming transmitted simultaneously with sound; or (ii) the apparatus is designed for multiple purposes, capable of receiving or playing back video programming transmitted simultaneously with sound but whose essential utility is derived from other purposes.
(h) The Report and Order also established procedures for the filing of written complaints alleging violations of the Commission's rules requiring apparatus designed to receive, play back, or record video programming to be equipped with built-in closed caption decoder circuitry or capability designed to display closed captions. The Commission set forth information that such complaints should include. A written complaint filed with the Commission must be transmitted to the Consumer and Governmental Affairs Bureau through the Commission's online informal complaint filing system, U.S. Mail, overnight delivery, or facsimile. The Commission may forward such complaints to the named manufacturer or provider, as well as to any other entity that Commission staff determines may be involved, and may request additional information from any relevant parties when, in the estimation of Commission staff, such information is needed to investigate the complaint or adjudicate potential violations of Commission rules.
Federal Communications Commission.
Notice.
In this document, the Wireless Telecommunications Bureau (WTB) and the Wireline Competition Bureau (WCB) (collectively, the Bureaus) announce the procedures and filing requirements for a reverse auction to award $300 million in one-time Mobility Fund Phase I support scheduled to commence on September 27, 2012. The Bureaus also announce the availability of eligible area data in various formats.
Short-form applications are due prior to 6 p.m. on July 11, 2012.
This is a summary of two public notices related to the auction for Mobility Fund Phase I support (Auction 901): (1) The
1. The Bureaus establish the procedures that will be used for the reverse auction that will award $300 million in one-time Mobility Fund Phase I support. This auction, designated as Auction 901, is scheduled to be held on September 27, 2012. The
2. Auction 901 will award one-time support to carriers that commit to provide third-generation (3G) or better mobile voice and broadband services in census blocks where such services are unavailable. Mobility Fund Phase I support will be allocated to maximize the road miles covered by new mobile services without exceeding the budget of $300 million. Winning bidders will be obligated to choose whether to deploy 3G service within two years or fourth-generation (4G) service within three years of the award of support. The term 3G refers to mobile wireless services that provide voice telephony service on networks that also provide services such as Internet access and email. 4G services are those capable of meeting or exceeding certain data rates, as discussed below.
3. Auction 901 will be the first auction to award high-cost universal service support through competitive bidding. The
4. In the
5. Moreover, the
6. In the
7. Phase I of the Mobility Fund will provide up to $300 million in one-time support to address gaps in mobile services availability by supporting the build-out of current- and next-generation mobile networks in areas where these networks are unavailable. The support offered under Phase I of the Mobility Fund is in addition to any ongoing support provided under existing high-cost universal service program mechanisms. Phase II of the Mobility Fund will provide $500 million annually for ongoing support of mobile services. The Commission sought comment on the details for Mobility Fund Phase II in the Further Notice of Proposed Rulemaking adopted in the
8. The goal for Mobility Fund Phase I is to extend the availability of mobile voice and broadband service on networks that provide 3G or better performance and to accelerate the deployment of 4G wireless networks in areas where it is cost effective to do so with one-time support. To maximize coverage in eligible unserved areas within the established budget of $300 million, the
9. In the
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11. Pursuant to the
12. The Commission established certain bidder-specific restrictions. Specifically, each applicant for Mobility Fund Phase I support is required to certify that it will not seek support for any areas for which it has made a public commitment to deploy, by December 31, 2012, 3G or better wireless service. In determining whether an applicant has made such a public commitment, the Bureaus anticipated that they would consider any public statement made with some specificity as to both geographic area and time period. This restriction will not prevent a bidder from seeking and receiving support for an unserved area for which another provider has made such a public commitment.
13. In the
14. The Bureaus received numerous comments, reply comments,
15. Three state agencies requested that the Bureaus include census blocks that the states identify as unserved based on the State Broadband Initiative data gathered by the individual states for the National Broadband Map. In the
16. In light of the Commission's determination to make ineligible for support census blocks where a carrier had made a commitment to provide 3G or better mobile service in return for a federal funding commitment (such as those made under BIP and BTOP), the Bureaus requested information on awards proposing mobile wireless projects using 3G or better technology. In response, the U.S. Department of Agriculture's Rural Utilities Service (USDA RUS) and the U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) submitted information on the location of their BIP and BTOP awards. Five carriers also submitted comments listing census blocks to be removed from the Bureaus' list of potentially eligible blocks based
17. USDA RUS provided the Bureaus with a list of Census 2000 census blocks associated with BIP awards for mobile wireless projects. After converting the data to 2010 census blocks and comparing the results to the 2010 census blocks submitted by the three carriers claiming BIP awards, the Bureaus find that the blocks submitted by the carriers were also reported on the list. This consistency leads the Bureaus to conclude that the full list of census blocks receiving BIP awards should be removed from the list of eligible census blocks to comply with the
18. NTIA provided the Bureaus with a list of Census 2000 census tracts associated with BTOP awards potentially for mobile wireless projects. The BTOP list may be over inclusive because the list describes areas at the census tract rather than the census block level, and it may include middle mile infrastructure projects rather than projects expressly expanding mobile services. The Bureaus compared this list with the 2010 equivalents of the census tracts associated with the 2010 census blocks submitted by the three commenters claiming BTOP awards. The census block data submitted by two of the three commenters corresponded closely to areas identified on the list. Based on that correspondence, the Bureaus remove the census blocks submitted by the two commenters from the list of eligible census blocks. However, because the likely over inclusiveness of the submitted data reduces the Bureaus' ability to ensure that they would be targeting areas with planned expansion of 3G or better coverage, the Bureaus did not remove all of the areas on the list from consideration for Mobility Fund Phase I support. Further, the Bureaus decline to remove the blocks that a third commenter identified as associated with a BTOP award, because the award and areas referenced by the commenter are not included in the list.
19. The Bureaus also received comments from 22 carriers requesting changes to their list of potentially eligible blocks—either removals based on assertions that census blocks listed as potentially eligible currently have 3G or better service (or would in the relatively near future) or additions based on assertions that census blocks not listed as potentially eligible actually lack 3G or better service. First, the Bureaus note that three parties filed comments listing census blocks for removal from the potentially eligible list based on assertions, at least in part, that they would be covered in the future, i.e., after the close of the record on March 26, 2012. The Bureaus conclude that they will not make census blocks ineligible based on these assertions. Pursuant to the
20. The Bureaus received comments from 15 carriers identifying census blocks for removal and/or addition to the list of potentially eligible census blocks based on demonstrations of current coverage at the centroid, or the lack thereof, in the form of maps, discussions of drive tests, explanation of methodologies for determining coverage and in numerous cases, certifications by one or more individuals as to the veracity of the material provided. The Bureaus find these demonstrations to be sufficiently credible and convincing to meet the requirements of the
21. Finally, the Bureaus received comments from five carriers listing census blocks for removal from the potentially eligible list based on bare assertions that their own coverage maps show they serve census blocks on the Bureaus potentially eligible list. In contrast to the submissions of the 15 carriers, these five did not provide any information regarding the basis for their assertions. Reply commenters challenged several such submissions as inadequate. The Bureaus conclude that these assertions without supporting evidence do not demonstrate actual service, as envisioned by the
22. The list of census blocks released with the
23. The Bureaus remind those interested in seeking Mobility Fund Phase I support that applicants for Auction 901 are required to certify that they will not seek support for any areas in which they have made a public commitment to deploy 3G or better service by December 31, 2012.
24. In the
25. The list of census blocks released with the
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31.
32. In order to participate in Auction 901 and receive Mobility Fund Phase I support, an applicant must demonstrate, for the areas on which it wishes to bid, that it has been designated as an eligible telecommunications carrier (ETC) and has access to the spectrum necessary to satisfy the applicable performance requirements. In addition, an applicant must certify that it is financially and technically capable of providing 3G or better service.
33. One commenter advocates restricting eligibility to participate in the auction based on additional factors, primarily related to the size of the applicant. The Commission previously considered and rejected similar proposals in the
34. On a related note, in connection with the
35. Winning bidders that are authorized to receive Mobility Fund Phase I support are required to submit to the Commission an annual report each year for the five years after being so authorized. The information and certifications required to be included in the annual report are described in 47 CFR 54.1009. In addition, authorized winning bidders are required to submit certain reports before receiving disbursements of support. Mobility Fund Phase I support will be available for disbursement to authorized winning bidders in three stages, with the first disbursement made when the winning bidder is authorized to receive support. A recipient will be eligible to receive the second disbursement when it submits a report demonstrating coverage of 50 percent of the applicable coverage requirements of 47 CFR 54.1006. A recipient will be eligible to receive the final disbursement when it submits a report demonstrating coverage meeting the applicable requirements of 47 CFR 54.1006.
36. A winning bidder authorized to receive Mobility Fund Phase I support and all of its agents are required to retain any documentation prepared for, or in connection with, the award of Mobility Fund Phase I support for a period of not less than ten years after the date on which the winning bidder receives its final disbursement of Mobility Fund Phase I support.
37. Bidding in Auction 901 will be held on Thursday, September 27, 2012. Two commenters contend that the auction should be delayed in light of pending litigation regarding the source of funds to be disbursed based on the auction and in light of pending petitions for reconsideration of various aspects of the
38. The start and finish time of bidding in Auction 901 will be announced by public notice approximately one week before the start of the auction. Unless otherwise announced, bidding for all census blocks will be offered at the same time.
39. The bidding methodology for Auction 901 will be single-round reverse format. The Commission will conduct this auction over the Internet using the FCC Auction System. Qualified bidders are permitted to bid electronically via the Internet. Telephonic bidding will not be available for Auction 901 because it will not be feasible given the number of eligible geographic areas and the manner in which bids will be uploaded.
40. The following dates and deadlines apply to Auction 901: (1) An auction tutorial will available (via Internet) by June 27, 2012; (2) short-form application (FCC Form 180) filing window opens on June 27, 2012, at 12 noon ET; (3) short-form application (FCC Form 180) filing window closes on July 11, 2012, at 6:00 p.m. ET; (4) a mock auction will be held on September 25, 2012; and (5) Auction 901 will be held on September 27, 2012.
41. Those wishing to participate in this auction must: (1) submit a short-form application (FCC Form 180) electronically prior to 6 p.m. ET on July 11, 2012, following the electronic filing procedures that will be provided in a future public notice; and (2) comply with all provisions outlined in the
42. Prospective applicants in Auction 901 must familiarize themselves with the Commission's general universal service rules, contained in 47 CFR part 54, and the Mobility Fund specifically, 47 CFR 54.1001- 54.1010. They should also familiarize themselves with the Commission's decision in the
43. The terms contained in the Commission's rules, relevant orders, and public notices are not negotiable. The Commission may amend or supplement the information contained in its public notices at any time, and will issue public notices to convey any new or supplemental information to applicants. It is the responsibility of all applicants to remain current with all Commission rules and with all public notices pertaining to this auction.
44. To ensure the competitiveness of the auction process, 47 CFR 1.21002 prohibits an applicant in a Mobility Fund auction from cooperating or collaborating with any other applicant with respect to its own, or one another's, or any other competing applicant's bids or bidding strategies, and from communicating with any other applicant in any manner the substance of its own, or one another's, or any other competing applicant's bids or bidding strategies, until after the post-auction deadline for winning bidders to submit applications for support, unless such applicants are members of a joint bidding arrangement identified on the short form application(s) pursuant to 47 CFR 1.21001(b)(3)-(4).
45. 47 CFR 1.21002 is based on a similar rule used by the Commission in competitive bidding for spectrum licenses, 47 CFR 1.2105(c). Potential bidders should familiarize themselves with 47 CFR 1.2105(c) and 1.21002, as well as the judicial, Commission and Wireless Bureau decisions addressing application of the rule prohibiting certain communications listed in Attachment E of the
46. The prohibition on certain communications contained in 47 CFR 1.21002 will apply to any applicant that submits a short-form application to participate in Auction 901. Thus, unless they have identified each other on their
47. For the Mobility Fund Phase I auction, all bidders will compete for support with all other bidders in Auction 901, regardless of the geographic areas they seek to serve with Mobility Fund support. Therefore, applicants will be prohibited from making certain communications with all other applicants in Auction 901 regardless of the geographic areas they select, unless the parties disclose agreements reached between the parties on their short-form applications.
48. For purposes of the prohibition on certain communications, 47 CFR 1.21002 defines
49. Individuals and entities subject to 47 CFR 1.21002 should take special care in circumstances where their officers, directors and employees may receive information directly or indirectly relating to any competing applicant's bids or bidding strategies.
50. Moreover, Auction 901 applicants are encouraged not to use the same individual as an authorized bidder. A violation of 47 CFR 1.21002 could occur if an individual acts as the authorized bidder for two or more competing applicants, and conveys information concerning the substance of bids or bidding strategies between such applicants. Also, if the authorized bidders are different individuals employed by the same organization (e.g., a law firm or engineering firm or consulting firm), a violation similarly could occur. In such a case, at a minimum, applicants should certify on their applications that precautionary steps have been taken to prevent communication between authorized bidders, and that the applicant and its bidders will comply with 47 CFR 1.21002.
51. 47 CFR 1.21002 prohibition on certain communications begins at the short-form application filing deadline and ends at the long form application deadline after the auction closes, which will be announced in a future public notice.
52. Applicants must not communicate directly or indirectly about bids or bidding strategy to other applicants. 47 CFR 1.21002 prohibits not only communication about an applicant's own bids or bidding strategy, it also prohibits communication of another applicant's bids or bidding strategy. While the rule does not prohibit non-auction-related business negotiations among auction applicants, each applicant must remain vigilant so as not to directly or indirectly communicate information that affects, or could affect, bids, bidding strategy, or the negotiation of settlement agreements.
53. Applicants are cautioned that the Commission remains vigilant about prohibited communications taking place outside of the auction itself. The Commission has warned that prohibited communications concerning bids and bidding strategies may include communications regarding capital calls or requests for additional funds in support of bids or bidding strategies to the extent such communications convey information concerning the bids and bidding strategies directly or indirectly. Moreover, the Commission has found a violation of the rule against prohibited communications where an applicant used the Commission's bidding system to disclose its bidding strategy in a manner that explicitly invited other auction participants to cooperate and collaborate in specific markets, and has placed auction participants on notice that the use of its bidding system to disclose market information to competitors will not be tolerated and will subject bidders to sanctions. Applicants also should use caution in their dealings with other parties, such as members of the press, financial analysts, or others who might become conduits for the communication of prohibited bidding information. For example, an applicant's statement to the press that it intends to stop bidding in the auction could give rise to a finding of 47 CFR 1.21002 violation. Similarly, an applicant's public statement of intent not to participate in Auction 901 bidding could also violate the rule. Applicants are hereby placed on notice that public disclosure of information relating to bids, or bidding strategies, or to post auction market structures may violate 47 CFR 1.21002.
54. The Commission's rules do not prohibit applicants from entering into otherwise lawful bidding agreements before filing their short-form applications, as long as they disclose the existence of the agreement(s) in their short-form applications. Applicants must identify in their short-form applications all parties with whom they have entered into any agreements, arrangements, or understandings of any kind relating to the Mobility Fund Phase I support they seek, including any agreements relating to post-auction market structure.
55. If parties agree in principle on all material terms prior to the short-form application filing deadline, each party to the agreement must identify the other party or parties to the agreement on its short-form application under 47 CFR 1.21001(b)(3), even if the agreement has not been reduced to writing. If the parties have not agreed in principle by the short-form filing deadline, they should not include the names of parties to discussions on their applications, and they may not continue negotiation, discussion or communication with any other applicants after the short-form application filing deadline.
56. 47 CFR 1.21002 does not prohibit non-auction-related business negotiations among auction applicants. However, certain discussions or exchanges could touch upon impermissible subject matters because they may convey pricing information and bidding strategies. Such subject areas include, but are not limited to, issues such as management, sales, local marketing agreements, and other transactional agreements.
57. By electronically submitting a short-form application, each applicant in Auction 901 certifies its compliance with 47 CFR 1.21001(b)(3) and 1.21002. In particular, an applicant must certify under penalty of perjury that the application discloses all real parties in interest to any agreements involving the applicant's participation in the competitive bidding for Mobility Fund support. Also, the applicant must certify that it and all applicable parties have complied with and will continue to comply with 47 CFR 1.21002.
58. The Bureaus caution, however, that merely filing a certifying statement as part of an application will not
59. 47 CFR 1.21002(c) provides that any applicant that makes or receives a communication that appears to violate 47 CFR 1.21002 must report such communication in writing to the Commission immediately, and in no case later than five business days after the communication occurs. An applicant's obligation to make such a report continues until the report has been made.
60. In addition, 47 CFR 1.65 requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission of any substantial change that may be of decisional significance to that application. Thus, the rule requires an Auction 901 applicant to notify the Commission of any substantial change to the information or certifications included in its pending short-form application. An applicant is therefore required by 47 CFR 1.65 to report to the Commission any communication the applicant has made to or received from another applicant after the short-form application filing deadline that affects or has the potential to affect bids or bidding strategy, unless such communication is made to or received from a party to an agreement identified under 47 CFR 1.21001(b)(4).
61. 47 CFR 1.65(a) and 1.21002 require each applicant in competitive bidding proceedings to furnish additional or corrected information within five days of a significant occurrence, or to amend its short-form application no more than five days after the applicant becomes aware of the need for amendment. These rules are intended to facilitate the auction process by making the information available promptly to all participants and to enable the Bureaus to act expeditiously on those changes when such action is necessary.
62. A party reporting any prohibited communication pursuant to 47 CFR 1.65, 1.21001(b), or 1.21002(c) must take care to ensure that any report of the prohibited communication does not itself give rise to a violation of 47 CFR 1.21002. For example, a party's report of a prohibited communication could violate the rule by communicating prohibited information to other applicants through the use of Commission filing procedures that would allow such materials to be made available for public inspection.
63. Parties must file only a single report concerning a prohibited communication and must file that report with Commission personnel expressly charged with administering the Commission's auctions. This rule is designed to minimize the risk of inadvertent dissemination of information in such reports. Any reports required by 47 CFR 1.21002(c) must be filed consistent with the instructions set forth in the
64. A party seeking to report such a prohibited communication should consider submitting its report with a request that the report or portions of the submission be withheld from public inspection by following the procedures specified in 47 CFR 0.459. The Bureaus encourage such parties to coordinate with the Auctions and Spectrum Access Division staff about the procedures for submitting such reports.
65. Each applicant that is a winning bidder may be required to disclose in its long-form application the specific terms, conditions, and parties involved in any agreement it has entered into. This may apply to any bidding consortia, joint venture, partnership, or agreement, understanding, or other arrangement entered into relating to the competitive bidding process, including any agreement relating to the post-auction market structure. Failure to comply with the Commission's rules can result in enforcement action.
66. The Bureaus also remind applicants that, regardless of compliance with the Commission's rules, they remain subject to the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace. Compliance with the disclosure requirements of 47 CFR 1.21002 will not insulate a party from enforcement of the antitrust laws. For instance, a violation of the antitrust laws could arise out of actions taking place well before any party submitted a short-form application. Similarly, the Wireless Bureau previously reminded potential applicants and others that even where the applicant discloses parties with whom it has reached an agreement on the short-form application, thereby permitting discussions with those parties, the applicant is nevertheless subject to existing antitrust laws.
67. To the extent the Commission becomes aware of specific allegations that suggest that violations of the federal antitrust laws may have occurred, the Commission may refer such allegations to the United States Department of Justice for investigation. If an applicant is found to have violated the antitrust laws or the Commission's rules in connection with its participation in the competitive bidding process, it may be subject to a forfeiture and may be prohibited from participating in future auctions, among other sanctions.
68. The Bureaus remind each potential bidder that it has sole responsibility for investigating and evaluating all technical and marketplace factors that may have a bearing on the level of Mobility Fund Phase I support it submits as a bid in Auction 901. Each bidder is responsible for assuring that, if it wins the support, it will be able to build and operate facilities in accordance with the Mobility Fund obligations and the Commission's rules generally.
69. Applicants should be aware that Auction 901 represents an opportunity to apply for Mobility Fund support, subject to certain conditions and regulations. Auction 901 does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does Mobility Fund support constitute a guarantee of business success.
70. An applicant should perform its due diligence research and analysis before proceeding, as it would with any new business venture. In particular, the Bureaus strongly encourage each
71. The Bureaus strongly encourage each applicant to conduct its own research prior to Auction 901 in order to determine the existence of pending administrative or judicial proceedings, including pending allocation rulemaking proceedings that might affect its decision to participate in the auction. The due diligence considerations mentioned in the
72. The Bureaus also remind each applicant that pending and future judicial proceedings, as well as certain pending and future proceedings before the Commission—including applications, applications for modification, petitions for rulemaking, requests for special temporary authority, waiver requests, petitions to deny, petitions for reconsideration, informal objections, and applications for review—may relate to particular licensees or applicants for support in Auction 901. Each prospective applicant is responsible for assessing the likelihood of the various possible outcomes and for considering the potential impact on Mobility Fund Phase I support available through this auction.
73. Each applicant is solely responsible for identifying associated risks and for investigating and evaluating the degree to which such matters may affect its ability to bid on or otherwise receive Mobility Fund Phase I support. Each potential bidder is responsible for undertaking research to ensure that any support won in this auction will be suitable for its business plans and needs. Each potential bidder must undertake its own assessment of the relevance and importance of information gathered as part of its due diligence efforts.
74. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third party databases, including, for example, court docketing systems. To the extent the Commission's databases may not include all information deemed necessary or desirable by an applicant, it must obtain or verify such information from independent sources or assume the risk of any incompleteness or inaccuracy in said databases. Furthermore, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into its databases.
75. Bidders will be able to participate in Auction 901 over the Internet using the FCC Auction System. The Commission makes no warranty whatsoever with respect to the FCC Auction System. In no event shall the Commission, or any of its officers, employees, or agents, be liable for any damages whatsoever (including, but not limited to, loss of business profits, business interruption, loss of business information, or any other loss) arising out of or relating to the existence, furnishing, functioning, or use of the FCC Auction System that is accessible to qualified bidders in connection with this auction. Moreover, no obligation or liability will arise out of the Commission's technical, programming, or other advice or service provided in connection with the FCC Auction System.
76. Recipients of Mobility Fund support, like all licensees, must comply with the Commission's rules regarding implementation of the National Environmental Policy Act and other federal environmental statutes. The construction of a wireless antenna facility is a federal action, and any entity constructing a wireless antenna facility must comply with the Commission's environmental rules for each such facility. The Commission's environmental rules require, among other things, that the entity constructing the facility consult with expert agencies having environmental responsibilities, including the U.S. Fish and Wildlife Service, the State Historic Preservation Office, the Army Corps of Engineers and the Federal Emergency Management Agency (through the local authority with jurisdiction over floodplains). In assessing the effect of facilities construction on historic properties, the entity constructing the facility must follow the provisions of the Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process. The entity must prepare environmental assessments for facilities that may have a significant impact in or on wilderness areas, wildlife preserves, threatened or endangered species or designated critical habitats, historical or archaeological sites, Indian religious sites, floodplains, and surface features. The entity also must prepare environmental assessments for facilities that include high intensity white lights in residential neighborhoods or excessive radio frequency emission, or that are over 450 feet in height. Facilities that require antenna registration will also be required to complete an environmental notification process.
77. An application to participate in Auction 901, referred to as a short-form application or FCC Form 180, provides information used to determine whether the applicant is legally, technically, and financially qualified to participate in Commission auctions for universal service funding support. The short-form application is the first part of the Commission's two-phased auction application process. In the first phase, each party desiring to participate in the auction must file a streamlined, short-form application in which it certifies under penalty of perjury as to its qualifications. Each applicant must take seriously its duties and responsibilities and carefully determine before filing an application that it has the legal, technical and financial resources to participate in the auction and be able to meet the public interest obligations associated with Mobility Fund Phase I support. Eligibility to participate in bidding is based on the applicant's short-form application and certifications. In the second phase of the process, each winning bidder must file a more comprehensive long-form application (FCC Form 680).
78. Every entity seeking support available in Auction 901 must file a short-form application electronically via the FCC Auction System prior to 6 p.m.
79. Each applicant bears full responsibility for submitting an accurate, complete, and timely short-form application. Each applicant must certify on its short-form application under penalty of perjury that it is legally, technically, financially and otherwise qualified to receive universal service support funding. Each applicant should consult the Commission's rules to ensure that all the information required is included in its short-form application.
80. A party may not submit more than one short-form application for Auction 901. If a party submits multiple short-form applications, only one application may be accepted for filing.
81. Each applicant also should note that submission of a short-form application (and any amendments thereto) constitutes a representation by the certifying official that he or she is an authorized representative of the applicant, that he or she has read the form's instructions and certifications, and that the contents of the application, its certifications, and any attachments are true and correct. An applicant is not permitted to make major modifications to its application; such impermissible changes include a change of the certifying official to the application. Submission of a false certification to the Commission may result in penalties, including monetary forfeitures, the forfeiture of universal service support, license forfeitures, ineligibility to participate in future auctions, and/or criminal prosecution.
82. An applicant will not be required to select the specific census blocks on which it wishes to bid when submitting its short-form application. Based on the SAC(s) or Tribal land(s) information entered by an applicant, the FCC Auction System will identify eligible tracts and blocks in the associated state(s) or Tribal land(s) for each applicant during the application process.
83. An applicant will be required to identify in its short-form application all real parties-in-interest to any agreements relating to the participation of the applicant in the competitive bidding for Mobility Fund support.
84. Each applicant will also be required to certify under penalty of perjury in its short-form application that it has disclosed all real parties-in-interest to any agreements involving the applicant's participation in the competitive bidding for Mobility Fund support. If an applicant has had discussions, but has not reached an agreement by the short-form application filing deadline, it should not include the names of parties to the discussions on its application and may not continue such discussions with any applicants after the deadline.
85. Moreover, each applicant will also be required to certify under penalty of perjury in its short-form application that it and all applicable parties have complied with and will continue to comply with 47 CFR 1.21002. While 47 CFR 1.21002 does not prohibit non-auction-related business negotiations among auction applicants, the Bureaus remind applicants that certain discussions or exchanges could touch upon impermissible subject matters because they may convey pricing information and bidding strategies. Compliance with the disclosure requirements of 47 CFR 1.21002 will not insulate a party from enforcement of the antitrust laws.
86. Each applicant must comply with the uniform Part 1 ownership disclosure standards and provide information required by 47 CFR 54.1005(a)(1) and 1.2112(a). Specifically, in completing the short-form application, an applicant will be required to fully disclose information on the real party- or parties-in-interest and the ownership structure of the applicant, including both direct and indirect ownership interests of 10 percent or more, as prescribed in 47 CFR 1.2112(a). Each applicant is responsible for ensuring that information submitted in its short-form application is complete and accurate.
87. In certain circumstances, an applicant's most current ownership information on file with the Commission, if in an electronic format compatible with the short-form application (FCC Form 180) (such as information submitted in an FCC Form 602 or in an FCC Form 175 filed for a previous Commission spectrum license auction using the FCC Auction System), will automatically be entered into the applicant's short-form application. Each applicant must carefully review any information automatically entered to confirm that it is complete and accurate as of the deadline for filing the short-form application. Any information that needs to be corrected or updated must be changed directly in the short-form application.
88. In the
89. ETC status carries with it certain obligations. So that a party might obtain the required ETC designation but not be subject to those obligations unless and
90.