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Rural Utilities Service, USDA.
Final rule.
The Rural Utilities Service (RUS) is issuing regulations related to loans and grants to finance the construction, acquisition, or improvement of infrastructure projects in Substantially Underserved Trust Areas (SUTA). The intent is to implement Section 306F of the Rural Electrification Act by providing the process by which eligible applicants may apply for funding by the agency.
Michele Brooks, Director, Program Development and Regulatory Analysis, Rural Utilities Service, Rural Development, U.S. Department of Agriculture, 1400 Independence Avenue SW., STOP 1522, Room 5162–S, Washington, DC 20250–1522. Telephone number: (202) 690–1078, Facsimile: (202) 720–8435.
This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Rural Development has determined that this rule meets the applicable standards provided in section 3 of that Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted. No retroactive effect will be given to the rule and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures must be exhausted before an action against the Department or its agencies may be initiated.
RUS has determined that this rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). RUS provides loans to borrowers at interest rates and on terms that are more favorable than those generally available from the private sector. RUS borrowers, as a result of obtaining federal financing, receive economic benefits that exceed any direct economic costs associated with complying with RUS regulations and requirements.
The information collection and recordkeeping requirements contained in this rule are pending approval by OMB and will be assigned OMB control number 0572–0147 in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).
Rural Development is committed to the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.
The programs described by this rule are listed in the Catalog of Federal Domestic Assistance Programs under number 10.759, Special Evaluation Assistance for Rural Communities and Households Program (SEARCH); 10.760, Water and Waste Disposal Systems for Rural Communities; 10.761, Technical Assistance and Training Grants; 10.762, Solid Waste Management Grants; 10.763, Emergency Community Water Assistance Grants; 10.770, Water and Waste Disposal Loans and Grants (Section 306C); 10.850; Rural Electrification Loans and Loan Guarantees; 10.851, Rural Telephone Loans and Loan Guarantees, 10.855, Distance Learning and Telemedicine Loans and Grants; 10.857, State Bulk Fuel Revolving Fund Grants, 10.859, Assistance to High Energy Cost Rural Communities; 10.861, Public Television Station Digital Transition Grant Program; 10.862, Household Water Well System Grant Program 10.863, Community Connect Grant Program; 10.864, Grant Program to Establish a Fund for Financing Water and Wastewater Projects; 10.886, Rural Broadband Access Loans and Loan Guarantees.
The Catalog is available on the Internet at
Most programs covered by this rulemaking are excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034). However, the Water and Waste Disposal Loan Program, CFDA number 10.770, is subject to the provisions of Executive Order 12372 which requires intergovernmental consultation with State and local officials.
This rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandate Reform Act of 1995) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandate Reform Act of 1995.
Rural Development has determined that this rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The policies contained in this rule do not have any substantial direct effect on states, on the relationship between the
The policies contained in this rule do not impose substantial unreimbursed direct compliance costs on Indian tribal, Alaska native, or native Hawaiian governments and sovereign institutions or have tribal implications that preempt tribal law. Prior to development of this rulemaking, the agency held Tribal Consultations at seven (7) USDA regional consultations, conducted sixteen (16) SUTA specific consultations and hosted three (3) Internet and toll free teleconference based webinars in order to determine the impact of this rule on Tribal governments, communities, and individuals. Reports from these sessions for consultation will be made part of the USDA annual reporting on Tribal Consultation and Collaboration, the annual SUTA Report to Congress and were used extensively throughout the drafting of this proposed rule.
USDA Rural Development (Rural Development) is a mission area within the U.S. Department of Agriculture comprising the Rural Housing Service, Rural Business/Cooperative Service and Rural Utilities Service. Rural Development's mission is to increase economic opportunity and improve the quality of life for all rural Americans. Rural Development meets its mission by providing loans, loan guarantees, grants and technical assistance through more than forty programs aimed at creating and improving housing, businesses and infrastructure throughout rural America.
Rural Utilities Service (RUS) loan, loan guarantee and grant programs act as a catalyst for economic and community development. By financing improvements to rural electric, water and waste, and telecom and broadband infrastructure, RUS also plays a big role in improving other measures of quality of life in rural America, including public health and safety, environmental protection, conservation, and cultural and historic preservation.
The 2008 Farm Bill (Pub. L. 110–246, codified at 7 U.S.C. 936f) authorized the Substantially Underserved Trust Area (SUTA) initiative. The SUTA initiative gives the Secretary of Agriculture certain discretionary authorities relating to financial assistance terms and conditions that can enhance infrastructure financing options in areas that are underserved by electric, water and waste, and telecommunications and broadband utilities. Given the challenges, dynamics, and opportunities in implementing the SUTA initiative, RUS has aimed to foster a process that includes the voices of tribal leaders, tribal community members, Alaska Native Regional and Village Corporations, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands, and other stakeholders.
Preliminary research by RUS identified various reports that provided several insights. In 2007, the United States Census Bureau Facts for Features article (dated 10/29/07) reported that the poverty rate of people who reported being sole race American Indian and Alaska Native (AI/AN) was 27 percent. Additionally, in 2006, the United States Government Accountability Office reported that based on the 2000 decennial census, the telephone subscribership rate for Native American households on tribal lands was substantially below the national level of about 98 percent. Specifically, about 69 percent of Native American households on tribal lands in the lower 48 states and about 87 percent in Alaska Native villages had telephone service. Additionally, in 2000, the United States Census Bureau reported that on Native American lands, 11.7 percent of residents lack complete plumbing facilities, compared to 1.2 percent of the general U.S. population.
There are special considerations and challenges in implementing an initiative to communities residing on trust lands. Many American Indians, Alaska Natives, Native Hawaiians, and Pacific Islanders have a deep spiritual, cultural, and historical relationship with the land. In certain circumstances, the objectives of economic and infrastructure development can be at odds with spiritual, cultural, historical, and environmental values. Additionally, there are special legal considerations inherent in financing projects in areas where the land itself cannot be used as security.
The SUTA initiative identifies the need to improve utility service and seeks to improve the availability of RUS programs to reach communities within trust areas when communities are determined by the Secretary of Agriculture (such authority has been delegated to the Administrator of RUS) to be substantially underserved. The RUS programs that are affected by this provision include: Rural Electrification Loans and Guaranteed Loans, and High Cost Energy Grants; Water and Waste Disposal Loans, Guaranteed Loans and Grants; Telecommunications Infrastructure Loans and Guaranteed Loans; Distance Learning and Telemedicine Loans and Grants; and Broadband Loans and Guaranteed Loans.
In addition to its discretionary authority to implement the SUTA provisions, RUS is under a continuing obligation to make annual reports to Congress on (a) the progress of the SUTA initiative, and (b) recommendations for any regulatory or legislative changes that would be appropriate to improve services to communities located in substantially underserved trust areas. RUS has submitted three reports to Congress, dated June 18, 2009, June 21, 2010, and August 23, 2011.
The USDA Office of Native American Programs (since renamed the Office of Tribal Relations, hereinafter OTR) and RUS began exploring SUTA initiative implementation in 2008 after passage of the Farm Bill. RUS in conjunction with OTR interpreted implementation to include formal USDA Tribal Consultations and working with stakeholders that are federally recognized tribes. Pursuant to this determination and in accordance with President Obama's November 5, 2009, Memorandum on Tribal Consultation, RUS conducted sixteen (16) direct tribal consultations, seven (7) regional consultations, one listening session and three (3) Internet and toll free teleconference based webinars on implementation of the SUTA provision with Indian tribes from across the country. Additionally, the agency heard from six Federal agencies at three separate consultations on how best to implement the SUTA provision.
Federal agencies that were consulted include: The Department of the Interior, as the primary Federal agency with many direct responsibilities to Native American and Pacific Islander stakeholders; the Department of Veterans Affairs, for its clarification of the definition of “trust land”; the Environmental Protection Agency, because it has information regarding underserved trust areas with environmental challenges; the Department of Energy, because it has an interest in promoting energy development and conservation in trust areas; the Department of Commerce and the Federal Communications Commission, because each agency has an interest in telecommunications service in trust areas; the Department of Health and Human Services, because it has a long standing interest in providing health care services and promoting the
As a result of categorizing and analyzing the comments received through tribal consultations and filed comments, RUS was able to identify certain issues that impact both the underserved communities that seek better access to RUS programs, and the federal agencies that have similar yet sometimes competing interests in trust areas. This regulation is informed by the insight gained through consultations and comments, and is designed to complement existing loan, grant, and combination loan and grant programs with the SUTA provisions that authorize the Administrator to apply certain discretionary authorities (2 percent interest and extended repayment terms; waivers of nonduplication restrictions, matching fund requirements, or credit support requirements; and highest funding priority) for the benefit of eligible communities, and the entities that serve them, in underserved Trust areas.
In its Proposed Rule, published in the
• Society of American Indian Government Employees
• Lalamilo Community Association
• NANA Regional Corporation
• Winnebago Tribe of Nebraska
• WAIMEA Hawaiian Homesteaders Assoc., Inc.
• State of Hawaii, Department of Hawaiian Home Lands
• Council for Native Hawaiian Advancement
• National Tribal Telecommunications Association
• Cheyenne River Sioux Tribe
These comments have been summarized and are addressed below:
The Society expressed support and appreciation for the hard work performed by the RUS staff. The Society recommended that the agency (1) affirmatively proclaim that all land (including all “fee land”) within tribal reservation boundaries to be qualified as trust lands for the SUTA provision, (2) designate the data requirements under § 1700.107 as burdensome and require that the burden of proof be on the current service providers to demonstrate that they are actually providing service at reasonable prices, (3) refrain from requiring tribal communities to document significant health risks when a significant proportion of the community is unserved, and (4) ensure that RUS applicant reviewers have some tribal training on special legal status of tribes as sovereign nations before reviewing these types of applications. The Society also suggested that the SUTA Farm Bill provisions ensure that tribes are automatically eligible to receive waivers from the agency's non-duplication policies when a tribe applies to serve their own areas.
With regard to trust land status, the RUS does not have the authority to adjust the statutory definition of trust lands. RUS understands the unique “checker board” character of trust and non-trust lands in tribal communities The agency, consistent with its current practice, may consider SUTA related applications that include non-Trust territories when the service to or through those areas are “necessary and incidental” to improving service to a covered Trust area. In other cases, the agency could allocate SUTA benefits to SUTA eligible territories.
With regard to data requirements under § 1700.107, the proposed rule provides that the “explanation and documentation of the high need for the benefits of the eligible program * * * may” include data from the list of proxies. As such the list is not exclusive and applicants are welcome to provide additional information which could demonstrate to the Administrator that the high need for the benefits of the eligible program exists. The agency understands the burden; however, the applicant is in the best position to at least make an initial case that current services are inadequate. The agency can then attempt to document the service delivery by incumbent providers and the agency will make an independent determination based on the information that is available.
With regard to areas unserved by water utilities, the agency certainly supports the general proposition that the absence of clean sources of drinking water poses serious health risks, but the specific details of the types of health risks a community faces due to water quality and availability in that specific location both helps the agency meet the finding of “substantially underserved” and target limited funding to areas where it is needed the most.
As for training on the special legal status of tribes as sovereign nations for application reviewers, the agency has and will continue to train staff on the SUTA provision and a wide range of issues affecting tribal participation in RUS program including the sovereign nation status of tribes. RUS has provided service to numerous tribes as sovereign nations, and understands the legal status and collateral challenges to develop solutions that provide for program participation and the balance to protect taxpayer investments.
Regarding amendments to the Farm Bill, under SUTA the RUS may make legislative recommendations and will take our experience with the new authorities into account.
The agency received comments from several entities in support of RUS' historic consultation efforts to implement the SUTA provisions to communities residing on trust lands managed by the Department of Hawaiian Home lands. The agency has a long history of providing access to capital for infrastructure projects to communities throughout the Hawaiian home lands. The current statute only applies the SUTA provisions to RUS programs. The Rural Development mission area will likely learn from the implementation of SUTA by the RUS and may outline important best practices in its annual report to Congress.
In comments submitted by the state of Hawaii's Department of Hawaiian Homelands (DHHL), recommendations were made requesting the agency to (1) interpret § 1700.104 to apply feasibility requirements on the specific project rather than the applicant and (2) interpret § 1700.107 to permit USDA to provide grant assistance of up to 75 percent for communities on Trust lands in Alaska and Hawaii that have a median family income of 80 percent.
Regarding the feasibility recommendation, the agency points to its response to the NTTA (below) which raised similar recommendations. The RUS is bound under Section 306F(c)(4) of the Rural Electrification Act (RE Act) which states that the Secretary “shall only make loans or loan guarantees that are found to be financially feasible” under the SUTA amendments to the RE Act and it does not expand other discretions. The SUTA discretionary authorities defined by these provisions of the RE Act are summarized earlier.
With regard to DHHL's recommendation to authorize grant assistance of up to 75 percent for communities on Trust lands in Alaska and Hawaii with a median family income of 80 percent, the agency points to its response to NTTA regarding the level of grant funds dedicated for a particular provision in the statute. The amount of loan and grant funds that can be dedicated for any single purpose are generally defined by the authorizing statutes the agency administers and the annual appropriations laws which allocate budget authority (BA) to various programs. The SUTA provisions of the RE Act do not grant the agency any new authorities to convert BA among and between grant, direct loan or loan guarantee categories. Where it has such authority, the agency takes into account the needs of eligible communities.
We also note DHHL's support for § 1700.108 which covers application requirements that invite SUTA applicants to provide a variety of data sets that are already provided to other federal agencies who work closely with native communities. With the inclusion of subsection (H), RUS recognizes the need for native communities to articulate their unique circumstances to federal agencies for purposes of program eligibility.
The NANA Regional Corporation (an ANCSA Regional Corporation in Alaska) filed comments expressing concern over the current eligibility requirements contained in the Proposed Rule on SUTA. NANA argues that the current requirements may preclude villages in its region and across Alaska for SUTA consideration since many Alaska Native villages are not located on large tracts of trust land.
The definition of trust areas in the Proposed Rule is taken directly from the current statute (7 U.S.C. 306F (B)(2)) added to the RE Act as part of the Food, Conservation and Energy Act of 2008 (the Farm Bill). This definition includes land that “is owned by a Regional Corporation or a Village Corporation, as such terms are defined in Section 3(g) and 3(j) of the Alaska Native Claims Settlement Act * * *.” The RUS does not have the authority to adjust the statutory definition of trust lands. RUS understands the many unique infrastructure challenges that rural communities (both Native and non-Native) face throughout Alaska. The agency, consistent with current practice, however, may consider SUTA related applications that include non-Trust territories when the service to or through those areas are “necessary and incidental” to improving service to a covered Trust area. In other cases, the agency could allocate SUTA benefits to SUTA eligible territories. RUS is also legislatively mandated to report to Congress annually on its implementation of the SUTA legislation. As part of that report, RUS may suggest “recommendations for any regulatory or legislative changes that would be appropriate to improve services to substantially underserved trust areas.” In this regard, the NANA suggestions on coverage of non-Trust territories are very helpful.
The Winnebago Tribe of Nebraska expressed support for the SUTA regulations championing waivers of matching requirements and giving the highest priority to SUTA projects to facilitate expedient construction, acquisition or improvements of infrastructure throughout tribal communities. The Tribe noted the ongoing need for access to robust broadband service to be deployed in order for economic capacity building to occur throughout the Winnebago community. Specifically, the Tribe highlighted the inadequate level of mobile wireless and broadband coverage in their region. The tribe's listed priorities in health, education, safety and economic capacity building and recommend that tribal governments merit the right to control the planning, adoption, utilization and sustainability of any and all services that advance their goals.
SUTA will give the RUS new tools to make financial resources more accessible to entities seeking to bring modern utility services to tribal areas. We share the concerns expressed by the Tribe that unserved native communities can no longer be ignored and that the availability of adequate broadband access remains an important national priority. USDA has made the deployment of advanced services on Tribal lands a central pillar to our rural economic development mission which will be accelerated by this regulation.
The National Tribal Telecommunications Association commended USDA for its diligence implementing the SUTA provisions and offered specific comment on the following topics:
The National Tribal Telecommunications Association (NTTA) suggested that the USDA adopt a metric of “disparity” to assess infrastructure “underservice” and recommended a comparison of access to infrastructure in a Trust Area and an area of community immediately contiguous to the Trust Area.
In § 1700.108(i) of the proposed rule, the agency seeks data from the applicant documenting a lack of service or inadequate service in the affected community (§ 1700.108(i)). The relative level of service between Trust and non-Trust territories as well as the relative cost between those areas are relevant factors and could be provided by applicants in a SUTA request. A disparity analysis may be very helpful in demonstrating a lack of service. If disparity information is provided in a RUS application, the agency will take such information into consideration when reviewing SUTA requests. RUS believes that codifying a disparity test may have the unintended consequence of signaling that SUTA authorities would be less available where a Trust Area exists and its surrounding non-Trust areas all suffer from a lack of service.
The NTTA recommends that the proposed definition of “underserved” in section 1700.101 be amended to add the phrase, “notwithstanding that a service provider is an RUS borrower.”
A change in the definition of “underserved” is not necessary to address the concern of the commenter and is addressed elsewhere. Whether an area is determined to be “underserved” does not depend on the relationship of the incumbent service provider to the RUS. However, among the discretionary powers given to the agency under section 306F(c)(2) of the RE Act and under section 1700.106 of the proposed rule, is the power to waive “non-
NTTA makes several comments and recommended changes regarding financial feasibility, loan security and risk assessments as well as weighing financial feasibility against a community's lack of essential infrastructure. Specifically, NTTA recommends changing proposed section 1700.104 from “the financial feasibility of an application will be determined pursuant to normal underwriting practices for a particular eligible program” to “pursuant to normal underwriting practices, and such reasonable alternative practices as may support financial feasibility determination for a particular eligible program.” NTTA also proposes to add additional discretionary authorities related to collateral, security and risk assessment and Times Interest Earned Ratio (TIER) calculations.
The Section 306F(c)(4) of the Rural Electrification Act states that the Secretary “shall only make loans or loan guarantees that are found to be financially feasible” under the SUTA amendments to the Rural Electrification Act and it does not expand other discretions. The SUTA discretionary authorities defined by these provisions of the Rural Electrification Act are summarized here.
• AUTHORITY OF SECRETARY.—In carrying out subsection (b), the Secretary—
○ May make available from loan or loan guarantee programs administered by the Rural Utilities Service to qualified utilities or applicants financing with an interest rate as low as 2 percent, and with extended repayment terms;
○ May waive nonduplication restrictions, matching fund requirements, or credit support requirements from any loan or grant program administered by the Rural Utilities Service to facilitate the construction, acquisition, or improvement of infrastructure;
○ May give the highest funding priority to designated projects in substantially underserved trust areas; and
○ Shall only make loans or loan guarantees that are found to be financially feasible and that provide eligible program benefits to substantially underserved trust areas.
The proposed regulation faithfully codifies those authorities and the constraint of financial feasibility is also aligned with the RUS programs to assure debt repayment and protect taxpayer funds. The agency does not have the administrative ability to exceed that authority. However, the commenter's concerns about finding creative solutions to feasibility issues are well taken. The RUS has a long history of working closely with tribal communities to address loan security issues. Since the earliest days of the Rural Electrification Administration and now the RUS, the agency has found ways to reconcile taxpayer's expectation of loan security with the sovereign rights of tribal governments. In this regard, the agency has adapted its mortgage documents and its loan contracts to accommodate unique tribal needs and circumstances.
The agency intends to continue to work with tribal organizations to find creative ways to address tribal needs while preserving loan security. Therefore, the final rule will adapt the language proposed by NTTA for § 1700.104 to read, “pursuant to normal underwriting practices, and such reasonable alternatives within the discretion of RUS that contribute to a financial feasibility determination for a particular eligible program or project.”
NTTA proposes that consistent with its advocacy before the Federal Communications Commission (FCC), Tribes be given an option to choose the service provider serving a Trust community or providing services for its own community and that the Trust Area governments be permitted to engage service providers on quality of service standards.
All RUS applicants are required to demonstrate in their application that they have secured all regulatory approvals necessary to construct infrastructure and deliver services. The RUS does not have the power to define the jurisdiction of tribal governments and is mindful of their sovereignty. The agency engages with tribes on a government to government basis. An applicant must demonstrate that they have secured all necessary regulatory approvals on the federal, tribal, state and local levels. Furthermore, applicants must demonstrate that their projects are financially feasible. The agency notes that an applicant seeking to finance infrastructure on trust territory would likely have a difficult time demonstrating financial feasibility if it could not demonstrate tribal support, at a governmental or community level.
The NTTA recommends that RUS convert loan funds to grant options for the benefit of “underserved” or “unserved” trust communities.
The availability of loan and grant funds are generally defined by the authorizing statutes the agency administers and the annual appropriations laws which allocate budget authority (BA) to various programs. The SUTA provisions of the RE Act do not grant the agency any new authorities to convert BA among and between loan, grant or loan guarantee categories. Where it has such authority, the agency takes into account the needs of eligible communities.
The NTTA commends the RUS for providing a list of proxies for determining “underservice” and recommends that an additional provision be added to allow for additional data to be submitted.
The proposed rule provides that the “explanation and documentation of the high need for the benefits of the eligible program * * * may” include data from the list of proxies. As such the list is not exclusive and applicants are welcome to provide additional information which could demonstrate to the Administrator that the high need for the benefits of the eligible program exists.
The NTTA recommends that RUS implement a technical assistance program. On a related matter, the NTTA also recommends that the RUS recommend to entities seeking to serve Trust Areas that they apply under SUTA.
“While the RUS has limited formal technical assistance funding for some of its programs,” the RUS is committed to expanding outreach to tribal communities and applicants on all of its programs. The RUS appreciates the suggestion and shares the commenter's concern about technical assistance. That is why in the Broadband Initiatives Program of the American Recovery and Reinvestment Act of 2009, the RUS dedicated $3,384,202 of budget authority to fund 19 technical assistance
USDA State Rural Development Offices, RUS General Field Representatives, Rural Water Circuit Riders and RUS headquarters staff all offer assistance to applicants and are integral parts of the rural development program delivery. SUTA is an important initiative and RUS and RD staff members have been trained on the provision and will be trained on the final rule.
In comments filed pursuant to the proposed SUTA regulation, the Cheyenne River Sioux Tribe requests that the RUS interpret the statutory language for SUTA to allow a waiver of the statutory limitation on provision of grant in 7 U.S.C. 1926(a)(2) for Water and Waste Disposal grants.
7 U.S.C. 1926(a)(2)(A)(ii) states that “the amount of any grant made under the authority of this subparagraph shall not exceed 75 per centum of the development cost of the project to serve the area which the association determines can be feasibly served by the facility and to adequately serve the reasonably foreseeable growth needs of the area.”
The commenter writes that the authority provided to the Secretary pursuant to Section 6105(C)(2) of the 2008 Farm Bill, allows the Secretary to waive the 75 percent grant limitation when considering financial assistance pursuant to 7 CFR 1780.
Neither authorizing statute for the Water and Waste Disposal loan and grant program, nor the program regulations, specifically state that a match is required. By way of contrast, in 7 U.S.C. 1926(a)(2)(C)(ii)(II), Congress specifically refers to matching funds related to Special Evaluation Assistance for Rural Communities and Households (SEARCH). In addition, in Section 306C of the Consolidated Farm and Rural Development Act (ConAct), Congress specifically authorized the Secretary to provide up to 100 percent grants for water and waste infrastructure to Native American Tribes to address health and sanitary issues.
However, the commenter further suggests that “a restriction of the total amount of project cost that would be funded with grant funds creates a matching requirement whether the word “matching” is used.
The Agency will consider requests for waiver of some, or all, of the loan portion of a loan-grant combination under SUTA authority on a case-by-case basis. The decision to consider a waiver does not waive the over-arching requirement for a finding of need or feasibility pursuant to program regulations. The final determination of grant assistance will be made based on the following factors:
1. Eligibility requirements, including credit elsewhere certifications pursuant to 1780.7(d);
2. Underwriting and demonstration of need for grant, including the use of the prevailing program interest rate and the discretionary as low as 2% interest rates on loans pursuant to SUTA;
3. Availability of funds, including those funds available pursuant to the Section 306C grant set-aside for Native American Tribes or other applicable congressional set-asides; and
4. Percentage of the project that is located on SUTA eligible trust lands.
Eligibility requirements pursuant to 7 CFR 1780, such as credit elsewhere certifications (§ 1780.7(d)) and restrictions on the use of grant to reduce equivalent dwelling unit costs to a level less than similar systems cost (§ 1780.10 (b)(1)), will apply to applicants seeking a waiver of the loan component under SUTA.
To ensure that limited grants funds are awarded to those projects with the greatest need, financial analysis and underwriting will continue to be used to determine the need for grant, including grant above the 75 percent level. The analysis will include the applicant's ability to incur debt at the prevailing program interest rate and the discretionary as low as 2 percent interest rates on loans pursuant to SUTA.
The commenter correctly noted that the Agency has limited grant funding available in the regular loan and grant program and a backlog of requests that exceeds $3 billion. In addition, reductions in program funds will impact the ability of the Agency to provide needed grant funding. To support SUTA efforts to increase tribal participation in the program, the Agency will maximize the use of the Section 306C grant program, and other appropriate grant program set-asides to meet the grant needs of projects seeking waivers of the 75 percent grant limitation under SUTA. To ensure that grant funds are available to fund as many projects as possible, the agency may limit the total amount of grant funding to be used to address requests for additional grants pursuant to SUTA, as well as total Agency grant investment in the project.
Grant determinations will factor in the percentage of the proposed project that is located on substantially underserved trust lands as defined under SUTA.
Authority delegations (Government agencies), Electric power, Freedom of information, Loan programs—communications, Loan programs-energy, Organization and functions (Government agencies), Rural areas, Telecommunications, Broadband loan and grant programs, water and waste loan and grant program, and the Distance Learning and Telemedicine program.
For reasons set out in the preamble, the agency amends chapter XVII of title 7 of the Code of Federal Regulations by amending part 1700 to read as follows:
5 U.S.C. 301, 552; 7 U.S.C. 901
This subpart establishes policies and procedures for the Rural Utilities Service (RUS) implementation of the
SUTA does not apply to all RUS programs. SUTA only applies to eligible programs. An eligible program means a program administered by RUS and authorized in paragraph (a) of the RE Act, or paragraphs (b)(1), (2), (14), (22), or (24) of section 306(a) (7 U.S.C. 1926(a)(1), (2), (14), (22), (24)), or sections 306A, 306C, 306D, or 306E of the Con Act (7 U.S.C. 1926a, 1926c, 1926d, 1926e).
An eligible community is a community that:
(a) Is located on Trust land;
(b) May be served by an RUS administered program; and
(c) Is determined by the Administrator as having a high need for benefits of an eligible program.
Pursuant to normal underwriting practices, and such reasonable alternatives within the discretion of RUS that contribute to a financial feasibility determination for a particular eligible program or project, the Administrator will only make grants, loans and loan guarantees that RUS finds to be financially feasible and that provide eligible program benefits to substantially underserved trust areas. All income and assets available to and under the control of the Applicant will be considered as part of the Applicant's financial profile.
The Administrator will use one or more of the following resources in determining whether a particular community is located in Trust land:
(a) Official maps of Federal Indian Reservations based on information compiled by the U. S. Department of the Interior, Bureau of Indian Affairs and made available to the public;
(b) Title Status Reports issued by the U. S. Department of the Interior, Bureau of Indian Affairs showing that title to such land is held in trust or is subject to restrictions imposed by the United States;
(c) Trust Asset and Accounting Management System data, maintained by the Department of the Interior, Bureau of Indian Affairs;
(d) Official maps of the Department of Hawaiian Homelands of the State of Hawaii identifying land that has been given the status of Hawaiian home lands under the provisions of section 204 of the Hawaiian Homes Commission Act, 1920;
(e) Official records of the U.S. Department of the Interior, the State of Alaska, or such other documentation of ownership as the Administrator may determine to be satisfactory, showing that title is owned by a Regional Corporation or a Village Corporation as such terms are defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1601
(f) Evidence that the land is located on Guam, American Samoa or the Commonwealth of the Northern Mariana Islands, and is eligible for use in the Veteran's Administration direct loan program for veterans purchasing or constructing homes on communally-owned land; and
(g) Any other evidence satisfactory to the Administrator to establish that the land is “trust land” within the meaning of 38 U.S.C. 3765(1).
(a) To improve the availability of eligible programs in eligible communities determined to have a high need for the benefits of an eligible program, the Administrator retains the discretion, on a case-by-case basis, to use any of the following SUTA authorities individually or in combination to:
(1) Make available to qualified applicants financing with an interest rate as low as 2 percent;
(2) Extend repayment terms;
(3) Waive (individually or in combination) non-duplication restrictions, matching fund requirements, and credit support requirements from any loan or grant program administered by RUS; and
(4) Give the highest funding priority to designated projects in substantially underserved trust areas.
(b) Requests for waivers of nonduplication restrictions, matching fund requirements, and credit support requirements, and requests for highest funding priority will be reviewed on a case-by-case basis upon written request
(c) Notwithstanding the requirements in paragraph (b) of this section, the Administrator reserves the right to evaluate any application for an eligible program for use of the discretionary provisions of this subpart without a formal, written request from the applicant.
(a) In considering requests to make available financing with an interest rate as low as 2 percent, and extended repayment terms, the Administrator will evaluate the effect of and need for such terms on the finding of financial feasibility.
(b) In considering a request for a non-duplication waiver, the Administrator will consider the offerings of all existing service providers to determine whether or not granting the non-duplication waiver is warranted. A waiver of non-duplication restrictions will not be given if the Administrator determines as a matter of financial feasibility that, taking into account all existing service providers, an applicant or RUS borrower would not be able to repay a loan or successfully implement a grant agreement. Requests for waivers of non-duplication restrictions will be reviewed by taking the following factors into consideration:
(1) The size, extent and demographics of the duplicative area;
(2) The cost of service from existing service providers;
(3) The quality of available service; and
(4) The ability of the existing service provider to serve the eligible service area.
(c) Requests for waivers of matching fund requirements will be evaluated by taking the following factors into consideration:
(1) Whether waivers or reductions in matching or equity requirements would make an otherwise financially infeasible project financially feasible;
(2) Whether permitting a matching requirement to be met with sources not otherwise permitted in an affected program due to regulatory prohibition may be allowed under a separate statutory authority; and
(3) Whether the application could be ranked and scored as if the matching requirements were fully met.
(d) Requests for waivers of credit support requirements will be evaluated taking the following factors into consideration:
(1) The cost and availability of credit support relative to the loan security derived from such support;
(2) The extent to which the requirement is shown to be a barrier to the applicant's participation in the program; and
(3) The alternatives to waiving the requirements.
(e) The Administrator may adapt the manner of assigning highest funding priority to align with the selection methods used for particular programs or funding opportunities.
(1) Eligible programs which use priority point scoring may, in a notice of funds availability or similar notice, assign extra points for SUTA eligible applicants as a means to exercise a discretionary authority under this subpart.
(2) The Administrator may announce a competitive grant opportunity focused exclusively or primarily on trust lands which incorporates one or more discretionary authorities under this subpart into the rules or scoring for the competition.
(a) To receive consideration under this subpart, the applicant must submit to RUS a completed application that includes all of the information required for an application in accordance with the regulations relating to the program for which financial assistance is being sought. In addition, the applicant must notify the RUS contact for the applicable program in writing that it seeks consideration under this subpart and identify the discretionary authorities of this subpart it seeks to have applied to its application. The required written request memorandum or letter must include the following items:
(1) A description of the applicant, documenting eligibility.
(2) A description of the community to be served, documenting eligibility in accordance with 7 CFR 1700.103.
(3) An explanation and documentation of the high need for the benefits of the eligible program, which may include:
(i) Data documenting a lack of service (i.e. no service or unserved areas) or inadequate service in the affected community;
(ii) Data documenting significant health risks due to the fact that a significant proportion of the community's residents do not have access to, or are not served by, adequate, affordable service.
(iii) Data documenting economic need in the community, which may include:
(A) Per capita income of the residents in the community, as documented by the U.S. Department of Commerce, Bureau of Economic Analysis;
(B) Local area unemployment and not-employed statistics in the community, as documented by the U.S. Department of Labor, Bureau of Labor Statistics and/or the U.S. Department of the Interior, Bureau of Indian Affairs;
(C) Supplemental Nutrition Assistance Program participation and benefit levels in the community, as documented by the U.S. Department of Agriculture, Economic Research Service;
(D) National School Lunch Program participation and benefit levels in the community, as documented by the U.S. Department of Agriculture, Food and Nutrition Service;
(E) Temporary Assistance for Needy Families Program participation and benefit levels in the community, as documented by the U.S. Department of Health and Human Services, Administration for Children and Families;
(F) Lifeline Assistance and Link-Up America Program participation and benefit levels in the community, as documented by the Federal Communications Commission and the Universal Service Administrative Company;
(G) Examples of economic opportunities which have been or may be lost without improved service.
(H) Data maintained and supplied by Indian tribes or other tribal or jurisdictional entities on “trust land” to the Department of Interior, the Department of Health and Human Services and the Department of Housing and Urban Development that illustrates a high need for the benefits of an eligible program.
(4) The impact of the specific authorities sought under this subpart.
(b) The applicant must provide any additional information RUS may consider relevant to the application which is necessary to adequately evaluate the application under this subpart.
(c) RUS may also request modifications or changes, including changes in the amount of funds requested, in any proposal described in an application submitted under this subpart.
(d) The applicant must submit a completed application within the application window and guidelines for an eligible program.
(a) RUS will review the application to determine whether the applicant is eligible to receive consideration under this subpart and whether the application is timely, complete, and
(b) If the Administrator determines that the application is eligible to receive consideration under this subpart and one or more SUTA requests are granted, the applicant will be so notified.
(c) If RUS determines that the application is not eligible to receive further consideration under this subpart, RUS will so notify the applicant. The applicant may withdraw its application or request that RUS treat its application as an ordinary application for review, feasibility analysis and service area verification by RUS consistent with the regulations and guidelines normally applicable to the relevant program.
The reporting and recordkeeping requirements contained in this part have been approved by the Office of Management and Budget and have been assigned OMB control number 0572–0147.
Office of the Comptroller of the Currency, Treasury (OCC).
Final rule.
Section 939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) contains two directives to Federal agencies including the OCC. First, section 939A directs all Federal agencies to review, no later than one year after enactment, any regulation that requires the use of an assessment of creditworthiness of a security or money market instrument and any references to, or requirements in, such regulations regarding credit ratings. Second, the agencies are required to remove any references to, or requirements of reliance on, credit ratings and substitute such standard of creditworthiness as each agency determines is appropriate. The statute further provides that the agencies shall seek to establish, to the extent feasible, uniform standards of creditworthiness, taking into account the entities the agencies regulate and the purposes for which those entities would rely on such standards.
On November 29, 2011, the OCC issued a notice of proposed rulemaking (NPRM), seeking comment on a proposal to revise its regulations pertaining to investment securities, securities offerings, and foreign bank capital equivalency deposits to replace references to credit ratings with alternative standards of creditworthiness.
The OCC also proposed to amend its regulations pertaining to financial subsidiaries of national banks to better reflect the language of the underlying statute, as amended by section 939(d) of the Dodd-Frank Act.
Today, the OCC is finalizing those rules as proposed.
The final rule amending 12 CFR part 5 is effective on July 21, 2012. The final rules amending 12 CFR parts 1, 16, 28, and 160 are effective on January 1, 2013.
Kerri Corn, Director for Market Risk, Credit and Market Risk Division, (202) 874–4660; Michael Drennan, Senior Advisor, Credit and Market Risk Division, (202) 874–4660; Carl Kaminski, Senior Attorney, or Kevin Korzeniewski, Attorney, Legislative and Regulatory Activities Division, (202) 874–5090; or Eugene H. Cantor, Counsel, Securities and Corporate Practices Division, (202) 874–5210, Office of the Comptroller of the Currency, 250 E Street SW., Washington, DC 20219.
Section 939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act
On November 29, 2011, the OCC issued a notice of proposed rulemaking (NPRM), seeking comment on a proposal to revise its regulations pertaining to investment securities, securities offerings, and foreign bank capital equivalency deposits to replace references to credit ratings with alternative standards of creditworthiness. The OCC also proposed to amend its regulations pertaining to financial subsidiaries of national banks to better reflect the language of the underlying statute, as amended by section 939(d) of the Dodd-Frank Act.
The proposal generally pertained to rules that require national banks and Federal savings associations to determine whether a particular security or issuance qualifies, or does not qualify, for a specific treatment. For example, except for U.S. government securities and certain municipal securities, the OCC's investment securities regulations generally require a national bank or Federal savings association to determine whether or not a security is “investment grade” in order to determine whether purchasing the security is permissible.
The OCC received 11 comments on the proposed rules from banks, bank trade groups, individuals, and bank service providers. The majority of the commenters generally supported the proposed rules and stated that they presented a workable alternative to the use of credit ratings. A few commenters raised specific issues, which are addressed in more detail below.
After considering the comments and the issues raised, the OCC has decided to finalize the rules as proposed. In order to assist national banks and Federal savings associations in making these “investment grade” determinations, the OCC also is publishing a final guidance document today in this issue of the
For the purposes of its regulations at 12 CFR parts 1, 16, 28, and 160, the OCC is amending the definition of “investment grade” to remove references to credit ratings and nationally recognized statistical rating
These final rules remove references to credit ratings provided by NRSROs and instead generally require national banks and Federal savings associations to make assessments of a security's creditworthiness, similar to the assessments currently required for the purchase of unrated securities.
Under the proposed amendments to parts 1 and 16, a security would be “investment grade” if the issuer of the security has an adequate capacity to meet financial commitments under the security for the projected life of the asset or exposure. To meet this new standard, national banks must determine that the risk of default by the obligor is low and the full and timely repayment of principal and interest is expected. In the case of a structured security (that is, a security that relies primarily on the cash flows and performance of underlying collateral for repayment, rather than the credit of the issuer), the determination that full and timely repayment of principal and interest is expected may be influenced more by the quality of the underlying collateral, the cash flow rules, and the structure of the security itself than by the condition of the entity that is technically the issuer.
When determining whether a particular security is “investment grade,” the OCC expects national banks to consider a number of factors, to the extent appropriate. While external credit ratings and assessments remain valuable sources of information and provide national banks with a standardized credit risk indicator, if a national bank chooses to use credit ratings as part of its “investment grade” determination and due diligence, the bank should, consistent with existing rules and guidance, supplement the external ratings with a degree of due diligence processes and additional analyses that are appropriate for the bank's risk profile and for the size and complexity of the instrument. In other words, a security rated in the top four rating categories by an NRSRO is not automatically deemed to satisfy the revised “investment grade” standard.
Importantly, the proposal did not include a requirement that a national bank consider external credit ratings to make an “investment grade” determination. Therefore, a national bank could rely on other sources of information, including its own internal systems and/or analytics provided by third parties, when conducting due diligence and determining whether a particular security is a permissible and appropriate investment.
In comments on the proposed rule and guidance, banks and industry groups expressed concern about the amount of due diligence that the OCC would require a bank to conduct to determine whether an issuer has an adequate capacity to meet financial commitments under the security. Commenters were particularly concerned about the impact of due diligence requirements on smaller institutions. The OCC believes that the proposed “investment grade” standard and the due diligence required to meet it are consistent with those under prior ratings-based standards and existing due diligence requirements and guidance. Even under the prior ratings-based standards, national banks of all sizes should not rely solely on a credit rating to evaluate the credit risk of a security, and consistently have been advised through guidance and other supervisory materials to supplement any use of credit ratings with additional research on the credit risk of a particular security. Therefore, the OCC expects that most national banks already have such processes in place.
After considering the comments received, the OCC has decided to finalize the definition of “investment grade” as proposed. Also, in today's
One commenter stated that the definition of “investment grade” for structured securities should explicitly require a bank to consider the likely performance of the underlying collateral under stressed economic scenarios. In the proposed rule, the OCC noted that the National Credit Union Administration (NCUA) explicitly proposed to include a similar requirement for all investment securities in regulations applicable to Federal credit unions.
Under the OCC's prior ratings-based definition of “investment grade,” a security could be characterized as “investment grade” if it was rated in the top four “investment grade” ratings by two NRSROs (or one NRSRO if only one NRSRO had rated the particular security) or, if no NRSROs had rated the security, if the national bank or Federal savings association determined that the security was the credit equivalent of a security rated in the top four “investment grade” categories by an NRSRO. As a general matter, NRSROs consider potential adverse economic conditions when determining how to appropriately rate a security.
In coming to a conclusion, rating committees routinely examine a variety of scenarios. Moody's ratings deliberately do not incorporate a single, internally consistent economic forecast. They aim rather to measure the issuer's ability to meet debt obligations against economic scenarios reasonably adverse to the issuer's specific circumstances.
The OCC does not intend for the elimination of references to credit ratings, in accordance with the Dodd-Frank Act, to change substantively the standards national banks must follow when deciding whether a security is “investment grade,” nor does it change the requirement set forth at 12 CFR 1.5, that institutions adhere to safe and sound banking practices when dealing in, underwriting, and purchasing and selling investment securities, and consider, as appropriate, the risks associated with the particular activities
To the extent a national bank would be expected to consider adverse economic conditions under the current “investment grade” and safety and soundness standards, the OCC would expect the national bank to continue to consider adverse economic conditions, as appropriate, when conducting investment securities activities. Importantly, a national bank may not need to develop its own internal systems to measure potential adverse economic conditions to meet the revised standard. Instead, a national bank could consider projections provided by third parties, including those provided by NRSROs. Therefore, the OCC has determined that the “investment grade” standard does not need to be revised to address the commenter's concern. However, the OCC recognizes the need to clarify its expectations with regard to the level of due diligence necessary to meet the investment grade and safety and soundness standards. Therefore, the final guidance document, which is being published in today's
Under current law, savings associations generally are prohibited by statute from investing in corporate debt securities unless they are rated “investment grade” by an NRSRO.
A few commenters were concerned that the statutory provision requiring the FDIC to create an alternative for ratings under 12 U.S.C. 1831e could lead to different alternatives to the use of ratings for corporate debt securities. The OCC has consulted with and intends to continue to consult with the FDIC on the development of the alternative creditworthiness standard under 12 U.S.C. 1831e to ensure consistency to the extent possible.
At 12 CFR 160.42, Federal savings associations are subject to certain limitations with regard to purchases of state and local government obligations. Previously, Federal savings associations could hold state or municipal revenue bonds that have ratings in one of the four highest “investment grade” rating categories from one issuer up to a limit of 10 percent of total capital without prior OCC approval. Under the revised rules, this provision would apply to state or municipal revenue bonds if the issuer has an adequate capacity to meet financial commitments under the security for the projected life of the asset or exposure. An issuer has an adequate capacity to meet financial commitments if the risk of default by the obligor is low and the full and timely repayment of principal and interest is expected.
The OCC considered the comments discussed above regarding changes to the definition of “investment grade” for national bank regulations. For the same reasons, the OCC believes that Federal savings associations already should be conducting due diligence on these securities and that the new “investment grade” standard is appropriate. Therefore, the OCC adopts the revisions to § 160.42 as proposed. In addition, Federal savings associations should look to the final guidance document, issued today in the
In addition to regulatory provisions that generally limit national banks and Federal savings associations to purchasing securities that are of “investment grade,” OCC regulations require that national banks and Federal savings associations conduct their investment activities in a manner that is consistent with safe and sound practices.
The OCC's capital equivalency deposit regulation at 12 CFR 28.15 previously allowed for the use of certificates of deposit or bankers' acceptances as part of the deposit if the issuer is rated “investment grade” by an internationally recognized rating organization. This final rule removes the requirement referencing credit ratings provided by ratings organizations. Instead, the issuer of the certificate of deposit or banker's acceptance must have “an adequate capacity to meet financial commitments for the projected life of the asset or exposure.” The OCC received no comments on this revision, and adopts it as proposed.
The OCC did not propose a specific effective date in the proposed rule. Two bank industry commenters were concerned that banks and savings associations would have insufficient time to develop processes for making “investment grade” determinations on new securities purchased before the effective date of this final rule. In addition, these commenters were concerned about the burden of analyzing securities institutions had purchased before the effective date of this final rule. These commenters suggested that the OCC adopt a one-year delayed effective date and allow for grandfathering of securities held by the institution before the effective date of this rule.
The OCC recognizes that it may take time for some national banks and
The OCC also understands that national banks and Federal savings associations own a significant amount of securities that were purchased with heavy reliance on credit ratings. Some of these securities, particularly structured securities, have maturity dates that could extend to 30 years. Therefore, the OCC does not believe that grandfathering would be appropriate, as institutions would be able to hold a grandfathered security for decades without performing additional “investment grade” analysis. National banks and Federal savings associations will still have until the proposed effective date of January 1, 2013, to evaluate their existing holdings and ensure that they meet the revised standard.
Finally, the OCC is adopting as proposed a technical change to 12 CFR 5.39, which pertains to financial subsidiaries of national banks, to conform with section 939(d) of the Dodd-Frank Act, which amends the criteria applicable to national banks seeking to control or hold an interest in a financial subsidiary.
Currently, pursuant to 12 U.S.C. 24a(a)(3), a national bank that is one of the 50 largest insured banks may control or hold an interest in a financial subsidiary if, among other criteria, the bank has at least one issue of outstanding eligible debt rated in one of the top three “investment grade” rating categories by an NRSRO.
Section 939(d) of the Dodd-Frank Act amends the creditworthiness requirements applicable to the 100 largest insured banks by removing the reference to NRSRO ratings and by eliminating any distinction between the first 50 largest insured banks and the second 50 such institutions. Effective on July 21, 2012, a national bank that is one of the 100 largest insured banks may control a financial subsidiary, directly or indirectly, or hold an interest in a financial subsidiary if the bank has not fewer than one issue of outstanding debt that meets such standards of creditworthiness or other criteria as the Secretary of the Treasury and the Federal Reserve Board may jointly establish. As is the case under current law, this statutory creditworthiness requirement does not apply to an insured depository institution that is not among the largest 100 insured depository institutions. Therefore, the Dodd-Frank revision will not affect the ability of such an institution to control or hold an interest in a financial subsidiary.
The Secretary of the Treasury and Federal Reserve Board have not yet established alternative non-ratings-based creditworthiness requirements applicable to the 100 largest insured banks under this revised provision of the National Bank Act. Until specific creditworthiness standards are established under 12 U.S.C. 24a, as modified by the Dodd-Frank Act, no specific creditworthiness requirements will be required of national banks applying to control or hold an interest in a financial subsidiary. Importantly, however, the requirements at 12 CFR 5.39(g)(1) and (2) still apply. These provisions provide that a national bank may control or hold an interest in a financial subsidiary only if it and each depository institution affiliate is well-capitalized and well-managed, and the aggregate consolidated total assets of all financial subsidiaries of the national bank do not exceed the lesser of 45 percent of the consolidated total assets of the parent bank or $50 billion (or such greater amount as is determined according to an indexing mechanism jointly established by regulation by the Secretary of the Treasury and the Board of Governors of the Federal Reserve System).
In the NPRM and technical supplement,
Together with this final rule, the OCC is publishing guidance for national bank and Federal savings association investment activities. This guidance is designed as an aid to institutions, particularly community banks and thrifts, regarding the factors they should consider in their due diligence with respect to securities of different degrees of complexity. The guidance reflects the OCC's expectations for national banks and Federal savings associations as they review their systems and consider any changes necessary to comply with the provisions for assessing credit risk in this final rule. The guidance describes factors institutions should consider with respect to certain types of investment securities to assess creditworthiness and to continue conducting their activities in a safe and sound manner.
As noted above, OCC regulations require that national banks and Federal savings associations conduct their investment activities in a manner that is consistent with safe and sound practices. Neither the final rules, nor the final guidance, change this requirement. The OCC expects national banks and Federal savings associations to continue
This final rule amends several regulations for which the OCC currently has approved collections of information under the Paperwork Reduction Act (44 U.S.C. 3501–3520) (OMB Control Nos. 1557–0014; 1557–0190; 1557–0120; 1557–0205). The amendments in this final rule do not introduce any new collections of information into the rules, nor do they amend the rules in a way that substantively modifies the collections of information that Office of Management and Budget (OMB) has previously approved. Therefore, no additional OMB Paperwork Reduction Act approval is required at this time.
Pursuant to section 605(b) of the Regulatory Flexibility Act,
This final rule would affect all 599 small national banks and all 284 small federally chartered savings associations.
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104–4 (UMRA) requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any one year. If a budgetary impact statement is required, section 205 of the UMRA also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule.
The OCC has determined that its final rule would not result in expenditures by state, local, and tribal governments, or by the private sector, of $100 million or more. Accordingly, the OCC has not specifically addressed the regulatory alternatives considered.
Banks, Banking, National banks, Reporting and recordkeeping requirements, Securities.
Administrative practice and procedure, National banks, Reporting and recordkeeping requirements, Securities.
National banks, Reporting and recordkeeping requirements, Securities.
Foreign banking, National banks, Reporting and recordkeeping requirements.
Banks, Banking, Consumer protection, Investments, manufactured homes, Mortgages, Reporting and recordkeeping requirements, Savings associations, Securities, Surety bonds.
For the reasons stated in the preamble, the Office of the Comptroller of the Currency is amending parts 1, 5, 16, 28, and 160 of chapter I of Title 12, Code of Federal Regulations as follows:
12 U.S.C. 1,
(d)
(e)
(f)
(1) Is registered under the Securities Act of 1933, 15 U.S.C. 77a
(2) Is a municipal revenue bond exempt from registration under the Securities Act of 1933, 15 U.S.C. 77c(a)(2);
(3) Is offered and sold pursuant to Securities and Exchange Commission Rule 144A, 17 CFR 230.144A, and investment grade; or
(4) Can be sold with reasonable promptness at a price that corresponds reasonably to its fair value.
(h) [Reserved]
(m)
(1) A small business-related security as defined in section 3(a)(53)(A) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(53)(A), that is fully secured by interests in a pool of loans to numerous obligors.
(2) A commercial mortgage-related security that is offered or sold pursuant to section 4(5) of the Securities Act of 1933, 15 U.S.C. 77d(5), that is investment grade, or a commercial mortgage-related security as described in section 3(a)(41) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(41), that represents ownership of a promissory note or certificate of interest or participation that is directly secured by a first lien on one or more parcels of real estate upon which one or more commercial structures are located and that is fully secured by interests in a pool of loans to numerous obligors.
(3) A residential mortgage-related security that is offered and sold pursuant to section 4(5) of the Securities Act of 1933, 15 U.S.C. 77d(5), that is investment grade, or a residential mortgage-related security as described in section 3(a)(41) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(41)) that does not otherwise qualify as a Type I security.
(n)
(1) Investment grade;
(2) Marketable;
(3) Not a Type IV security; and
(4) Fully secured by interests in a pool of loans to numerous obligors and in which a national bank could invest directly.
(e)
(h)
(i) The portfolio of the investment company consists exclusively of assets that the national bank may purchase and sell for its own account; and
(ii) The bank's holdings of investment company shares do not exceed the limitations in § 1.4(e).
(2)
(3) Investments made under this paragraph (h) must comply with § 1.5 of this part, conform with applicable published OCC precedent, and must be:
(i) Marketable and investment grade, or
(ii) Satisfy the requirements of § 1.3(i).
12 U.S.C. 1,
(g) * * *
(3) If the national bank is one of the 100 largest insured banks, determined on the basis of the bank's consolidated total assets at the end of the calendar year, the bank has not fewer than one issue of outstanding debt that meets such standards of creditworthiness or other criteria as the Secretary of the Treasury and the Federal Reserve Board may jointly establish pursuant to Section 5136A of title LXII of the Revised Statutes (12 U.S.C. 24a).
(4) Paragraph (g)(3) of this section does not apply if the financial subsidiary is engaged solely in activities in an agency capacity.
(j) * * *
(2)
12 U.S.C. 1,
(g)
(a) * * *
(4) The debt is investment grade.
12 U.S.C. 1
(a) * * * (1) * * *
(iii) Certificates of deposit, payable in the United States, and banker's acceptances, provided that, in either case, the issuer has an adequate capacity to meet financial commitments for the projected life of the asset or exposure. An issuer has an adequate capacity to meet financial commitments if the risk of default by the obligor is low and the full and timely repayment of principal and interest is expected
12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 1701j–3, 1828, 3803, 3806, 5412(b)(2)(B); 42 U.S.C. 4106.
(a) * * * (1) * * *
(i) Investment grade as of the date of purchase; or
(ii) Guaranteed by a company having outstanding paper that meets the standard set forth in paragraph (a)(1)(i) of this section.
(2) * * *
(ii) Investment grade.
(a) Pursuant to HOLA section 5(c)(1)(H), a Federal savings association may invest in obligations issued by any state, territory, possession, or political subdivision thereof (“governmental entity”), subject to appropriate underwriting and the following conditions:
(d) For all securities, the institution must consider, as appropriate, the interest rate, credit, liquidity, price, transaction, and other risks associated with the investment activity and determine that such investment is appropriate for the institution. The institution must also determine that the obligor has adequate resources and willingness to provide for all required payments on its obligations in a timely manner.
(d) * * *
(5) Notwithstanding the limit set forth in paragraphs (c)(1) and (c)(2) of this section, a savings association may invest up to 10 percent of unimpaired capital and unimpaired surplus in the obligations of one issuer evidenced by:
(i) Commercial paper or corporate debt securities that are, as of the date of purchase, investment grade.
(b) * * *
(1) The obligations are investment grade; or
(2) The obligations are approved by the OCC. The aggregate outstanding direct investment in obligations under paragraph (b) of this section shall not exceed the amount of the Federal savings association's total capital.
Office of the Comptroller of the Currency, Treasury (OCC).
Final guidance.
On November 29, 2011, the Office of the Comptroller of the Currency (OCC) proposed guidance to assist national banks and Federal savings associations in meeting due diligence requirements in assessing credit risk for portfolio investments. Today, the OCC is issuing final guidance that clarifies regulatory expectations with respect to investment purchase decisions and ongoing portfolio due diligence processes.
This guidance is effective January 1, 2013.
Kerri Corn, Director for Market Risk, or Michael Drennan, Senior Advisor, Credit and Market Risk Division, (202) 874–4660; or Carl Kaminski, Senior Attorney, or Kevin Korzeniewski, Attorney, Legislative and Regulatory Activities Division, (202) 874–5090; or Eugene H. Cantor, Counsel, Securities and Corporate Practices Division, (202) 874–5202, Office of the Comptroller of the Currency, 250 E Street SW., Washington, DC 20219.
Section 939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act
On November 29, 2011 (76 FR 73777), the OCC issued proposed guidance together with a notice of proposed rulemaking (NPRM) to remove references to credit ratings in the OCC's non-capital regulations. In particular, the OCC proposed to amend the definition of “investment grade” in 12 CFR part 1 to no longer reference credit ratings. Instead, “investment grade” securities would be those where the issuer has an adequate capacity to meet the financial commitments under the security for the projected life of the investment. An issuer has an adequate capacity to meet financial commitments if the risk of default by the obligor is low and the full and timely repayment of principal and interest is expected. Generally, securities with good to very strong credit quality will meet this standard. National banks will have to meet this new standard before purchasing investment securities. In addition, national banks and Federal savings associations should continue to maintain appropriate ongoing reviews of their investment portfolios to verify that their portfolios meet safety and soundness requirements that are appropriate for the institution's risk profile and for the size and complexity of their portfolios.
The OCC received 11 comments on the proposed rules and guidance from banks, bank trade groups, individuals, and bank service providers. The majority of the commenters generally supported the proposed rules and stated that the proposal presented a workable alternative to the use of credit ratings.
The text of the final supervisory guidance on due diligence that national banks and Federal savings associations should conduct in assessing credit risk for portfolio investments as required by 12 CFR part 1 and 12 CFR part 160 (specifically, 12 CFR 1.5 and 12 CFR 160.1(b) and 160.40(c)) follows:
The OCC has issued final rules to revise the definition of “investment grade,” as that term is used in 12 CFR parts 1 and 160 in order to comply with section 939A of the Dodd-Frank Act. Institutions have until January 1, 2013, to ensure that existing investments comply with the revised “investment grade” standard, as applicable based on investment type, and safety and soundness practices described in 12 CFR 1.5 and this guidance. This implementation period also will provide management with time to evaluate and amend existing policies and practices to ensure new purchases comply with the final rules and guidance. National banks and Federal savings associations that have established due diligence review processes as described in previous guidance, and that have not relied exclusively on external credit ratings, should not have difficulty establishing compliance with the new standard.
The OCC is issuing this guidance (“Guidance”) to clarify steps national banks ordinarily are expected to take to demonstrate they have properly verified their investments meet the newly established credit quality standards under 12 CFR Part 1 and steps national banks and Federal savings associations are expected to take to demonstrate they are in compliance with due diligence requirements when purchasing investment securities and conducting ongoing reviews of their investment portfolios. Federal savings associations will need to follow FDIC requirements when that agency promulgates credit quality standards under 12 U.S.C. 1831e. The standards below describe how national banks may purchase, sell, deal in, underwrite, and hold securities consistent with the authority contained in 12 U.S.C. 24(Seventh), and how Federal saving associations may invest in, sell, or otherwise deal in securities consistent with the authority contained in 12 U.S.C. 1464(c). The activities of national banks and Federal savings associations also must be consistent with safe and sound banking practices, and this Guidance reminds national banks and Federal savings associations of the supervisory risk management expectations associated with permissible investment portfolio holdings under Part 1 and Part 160.
Parts 1 and 160 provide standards for determining whether securities have appropriate credit quality and marketability characteristics to be purchased and held by national banks or Federal savings associations. These requirements also establish limits on the amount of investment securities an institution may hold for its own account. As defined in 12 CFR Part 1, an “investment security” must be “investment grade.” For the purpose of Part 1, “investment grade” securities are those where the issuer has an adequate capacity to meet the financial commitments under the security for the projected life of the investment. An issuer has an adequate capacity to meet financial commitments if the risk of default by the obligor is low and the full and timely repayment of principal and interest is expected. Generally, securities with good to very strong credit quality will meet this standard. In the case of a structured security (that is, a security that relies primarily on the cash flows and performance of underlying collateral for repayment, rather than the credit of the entity that is the issuer), the determination that full and timely repayment of principal and interest is expected may be influenced more by the quality of the underlying collateral, the cash flow rules, and the structure of the security itself than by the condition of the issuer.
National banks and Federal savings associations must be able to demonstrate that their investment securities meet applicable credit quality standards. This Guidance provides criteria that national banks can use in meeting Part 1 credit quality standards and that national banks and Federal savings associations can use in meeting due diligence requirements.
The OCC's elimination of references to credit ratings in its regulations, in accordance with the Dodd-Frank Act, does not substantively change the standards institutions should use when deciding whether securities are eligible for purchase under Part 1. The OCC's investment securities regulations generally require a national bank or Federal savings association to determine whether or not a security is “investment grade” in order to determine whether purchasing the security is permissible. Investments are considered “investment grade” if they meet the regulatory standard for credit quality. To meet this standard, a national bank must be able to determine that the security has (1) low risk of default by the obligor, and (2) the full and timely repayment of principal and interest is expected over the expected life of the investment.
For national banks, Type I securities, as defined in Part 1, generally are government obligations and are not subject to investment grade criteria for determining eligibility to purchase. Typical Type I obligations include U.S. Treasuries, agencies, municipal government general obligations, and for well-capitalized institutions, municipal revenue bonds. While Type I obligations do not have to meet the investment grade criteria to be eligible for purchase, all investment activities should comply with safe and sound banking practices as stated in 12 CFR 1.5 and in previous regulatory guidance. Under OCC rules, Treasury and agency obligations do not require individual credit analysis, but bank management should consider how those securities fit into the overall purpose, plans, and risk and concentration limitations of the investment policies established by the board of directors. Municipal bonds should be subject to an initial credit assessment and then ongoing review consistent with the risk characteristics of the bonds and the overall risk of the portfolio.
Financial institutions should be well acquainted with fundamental credit analysis as this is central to a well-managed loan portfolio. The foundation of a fundamental credit analysis—character, capacity, collateral, and covenants—applies to investment securities just as it does to the loan portfolio. Accordingly, the OCC expects national banks and Federal savings
The depth of the due diligence should be a function of the security's credit quality, the complexity of the structure, and the size of the investment. The more complex a security's structure, the more credit-related due diligence an institution should perform, even when the credit quality is perceived to be very high. Management should ensure it understands the security's structure and how the security may perform in different default environments, and should be particularly diligent when purchasing structured securities.
The following matrix provides examples of factors for national banks and Federal savings associations to consider as part of a robust credit risk assessment framework for designated types of instruments. The types of securities included in the matrix require a credit-focused pre-purchase analysis to meet the investment grade standard or safety and soundness standards. Again, the matrix is provided as a guide to better inform the credit risk assessment process. Individual purchases may require more or less analysis dependent on the security's risk characteristics, as previously described.
The creditworthiness assessment for an investment security that relies on the cash flows and collateral of the underlying assets for repayment (
The OCC has had a long-standing expectation that national banks implement a risk management process to ensure credit risk, including credit risk in the investment portfolio, is effectively identified, measured, monitored, and controlled. The
National banks and Federal savings associations must have in place an appropriate risk management framework for the level of risk in their investment portfolios. Failure to maintain an adequate investment portfolio risk management process, which includes understanding key portfolio risks, is considered an unsafe and unsound practice.
Having a strong and robust risk management framework appropriate for the level of risk in an institution's investment portfolio is particularly critical for managing portfolio credit risk. A key role for management in the oversight process is to translate the board of directors' tolerance for risk into a set of internal operating policies and procedures that govern the institution's investment activities. Policies should be consistent with the organization's broader business strategies, capital adequacy, technical expertise, and risk tolerance. Institutions should ensure that they identify and measure the risks associated with individual transactions prior to acquisition and periodically after purchase. This can be done at the institutional, portfolio, or individual instrument level. Investment policies also should provide credit risk concentration limits. Such limits may apply to concentrations relating to a single or related issuer, a geographical area, and obligations with similar characteristics. Safety and soundness principles warrant effective concentration risk management programs to ensure that credit exposures do not reach an excessive level.
The aforementioned risk management policies, principles, and due diligence processes should be commensurate with the complexity of the investment portfolio and the materiality of the portfolio to the financial performance and capital position of the institution. Investment review processes, following the pre-purchase analysis, may vary from institution to institution based on the individual characteristics of the portfolio, the nature and level of risk involved, and how that risk fits into the overall risk profile and operation of the institution. Investment portfolio reviews may be risk-based and focus on material positions or specific groups of investments or stratifications to enable analysis and review of similar risk positions.
As with pre-purchase analytics, some institutions may have the resources necessary to do most or all of their portfolio reviews internally. However, some may choose to rely on third parties for much of the analytical work. Third party vendors offer risk analysis and data benchmarks that could be periodically reviewed against existing portfolio holdings to assess credit quality changes over time. Holdings where current financial information or other key analytical data is unavailable should warrant more frequent analysis. High quality investments generally will not require the same level of review as investments further down the credit quality spectrum. However, any material positions or concentrations should be identified and assessed in more depth and more frequently, and any system should ensure an accurate and timely risk assessment and reporting process that informs the board of material changes to the risk profile
Securities and Exchange Commission.
Final rule; extension of compliance date.
The Securities and Exchange Commission (“Commission” or “SEC”) is extending the date by which advisers must comply with the ban on third-party solicitation in rule 206(4)–5 under the Investment Advisers Act of 1940, the “pay to play” rule. The Commission is extending the compliance date in order to ensure an orderly transition for advisers and third-party solicitors as well as to provide additional time for them to adjust compliance policies and procedures after the transition.
The compliance date for the ban on third-party solicitation is extended until nine months after the compliance date of a final rule adopted by the Commission by which municipal advisor firms must register under the Securities Exchange Act of 1934. Once such final rule is adopted, we will issue the new compliance date for the ban on third-party solicitation in a notice in the
Vanessa M. Meeks, Attorney-Adviser, or Melissa A. Roverts, Branch Chief, at (202) 551–6787 or
On July 1, 2010, the Commission adopted rule 206(4)–5 [17 CFR 275.206(4)–5] (the “Pay to Play Rule”) under the Investment Advisers Act of 1940 [15 USC 80b] (“Advisers Act”) to prohibit an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees (“covered associates”) make a contribution to certain elected officials or candidates.
Not long after the Pay to Play Rule was adopted, Congress created a new category of Commission registrants called “municipal advisors” in the Dodd-Frank Act. The statutory definition of municipal advisor includes persons that undertake “a solicitation of a municipal entity.”
With the understanding that municipal advisors would be subject to permanent registration requirements with the Commission and could be subject to an MSRB pay to play rule, on June 22, 2011, we amended the Pay to Play Rule to add municipal advisors to the categories of registered entities—referred to as “regulated persons”—excepted from the rule's third-party solicitor ban.
Soon thereafter, on August 19, 2011, the MSRB filed a proposal with the Commission that included a new pay to play rule regarding the solicitation activities of municipal advisors and amendments to several existing MSRB rules related to pay to play practices.
In order to ensure an orderly transition for advisers and third-party solicitors as well as to provide additional time for them to adjust compliance policies and procedures after the transition, we believe that an extension of the compliance date for the Pay to Play Rule's third-party solicitor ban is appropriate until nine months after the compliance date of a final rule adopted by the Commission by which municipal advisor firms must register under the Securities Exchange Act of 1934. Final rules as to who must register as a municipal advisor, and the process for doing so, will provide clarity to persons who may qualify as municipal advisors, and the investment advisers who may hire them, as to status and registration obligations under these future Commission rules. The new compliance date will also allow all solicitors to assess compliance obligations with pay to play rules that may be adopted by FINRA or the MSRB.
The Commission finds that, for good cause and the reasons cited above, notice and solicitation of comment regarding the extension of the compliance date for the ban on third-party solicitation under rule 206(4)–5 are impracticable, unnecessary, or contrary to the public interest.
By the Commission.
Social Security Administration.
Final rule.
We are extending the expiration dates of the following body systems in the Listing of Impairments (listings) in our regulations: Growth Impairment, Musculoskeletal System, Respiratory System, Cardiovascular System, Digestive System, Hematological Disorders, Skin Disorders, Neurological, and Mental Disorders. We are making no other revisions to these body system listings in this final rule. This extension will ensure that we continue to have the criteria we need to evaluate impairments in the affected body systems at step three of the sequential evaluation processes for initial claims and continuing disability reviews.
This final rule is effective on June 13, 2012.
Cheryl Williams, Director, Office of Medical Listings Improvement, 6401 Security Boulevard, Baltimore, MD 21235–6401, (410) 965–1020. For information on eligibility or filing for benefits, call our national toll-free number, 1–800–772–1213, or TTY 1–800–325–0778, or visit our Internet site, Social Security Online, at
We use the listings in appendix 1 to subpart P of part 404 of 20 CFR at the third step of the sequential evaluation process to evaluate claims filed by adults and children for benefits based on disability under the title II and title XVI programs.
In this final rule, we are extending the dates on which the listings for nine body systems will no longer be effective. The current expiration dates for these listing are provided in the following chart:
We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in promulgating regulations. Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final regulation. The APA provides exceptions to the notice-and-comment requirements when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest.
We determined that good cause exists for dispensing with the notice and public comment procedures. 5 U.S.C. 553(b)(B). This final rule only extends the date on which several body system listings will no longer be effective. It makes no substantive changes to our rules. Our current regulations
In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the effective date of this final rule. 5 U.S.C. 553(d)(3). We are not making any substantive changes in these body system listings. Without an extension of the expiration dates for these listings, we will not have the criteria we need to assess medical impairments in these body systems at step three of the sequential evaluation processes. We therefore find it is in the public interest to make this final rule effective on the publication date.
We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the requirements for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB did not review it. We also determined that this final rule meets the plain language requirement of Executive Order 12866.
We certify that this final rule does not have a significant economic impact on a substantial number of small entities because it affects only individuals. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.
This rule does not create any new or affect any existing collections, and therefore does not require OMB approval under the Paperwork Reduction Act.
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security.
For the reasons set out in the preamble, we are amending appendix 1 to subpart P of part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below.
Secs. 202, 205(a)–(b) and (d)–(h), 216(i), 221(a), (i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i), 421(a), (i), and (j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108–203, 118 Stat. 509 (42 U.S.C. 902 note).
1. Growth Impairment (100.00): July 1, 2014.
2. Musculoskeletal System (1.00 and 101.00): July 1, 2014.
4. Respiratory System (3.00 and 103.00): April 1, 2014.
5. Cardiovascular System (4.00 and 104.00): October 1, 2014.
6. Digestive System (5.00 and 105.00): April 1, 2014.
8. Hematological Disorders (7.00 and 107.00): January 2, 2014.
9. Skin Disorders (8.00 and 108.00): April 1, 2014.
12. Neurological (11.00 and 111.00): April 1, 2014.
13. Mental Disorders (12.00 and 112.00): January 2, 2014.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard will establish a special local regulation during the Chesapeake Bay Workboat Race, a series of boat races to be held on the waters of Back River, Poquoson, Virginia. Because this event will consist of approximately 75 powerboats conducting high-speed competitive races on the waters of Back River, this regulation is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in portions of the Back River, Messick Point, Poquoson, Virginia during the event.
This rule is effective from 11 a.m. until 5 p.m. on June 24, 2012, with a rain date of July 8, 2012 from 11 a.m. until 5 p.m.
Documents mentioned in this preamble are part of docket [USCG–2012–0169]. 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 LCDR Hector Cintron, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone 757–668–5581, email
On April 2, 2012, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulation for Marine Events, Chesapeake Bay Workboat Race, Back River, Messick Point, Poquoson, Virginia in the
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
On June 24, 2012, the Chesapeake Bay Workboat Race Committee will sponsor the “2012 Chesapeake Bay Workboat Races” on the waters of Back River. The event will consist of approximately 75 powerboats conducting high-speed competitive races on the waters of Back River, Messick Point, Poquoson, VA. A fleet of spectator vessels is expected to gather near the event site to view the competition. To provide for the safety of participants, spectators, support and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the races to provide for the safety of participants, spectators and other transiting vessels.
The Coast Guard did receive 02 comment in response to the notice of proposed rulemaking (NPRM) published in the
The commenter, Annette D. Firth of Chesapeake Boat Workboat Race Committee, who is the event organizer, stated that they the committee would like to add a rain date to the regulation to provide for inclement weather. Rain date was added for July 8, 2012. A second comment was unrelated to regulation. Accordingly, the Coast Guard is establishing a special local regulation on specified waters on the Back River, Poquoson, Virginia and we feel that adding a rain date to the effective period described in the proposed rule as suggested by the commenter will not adversely affect waterway users in this portion of the Back River on July 8, 2012.
The Coast Guard is establishing a temporary special local regulation on specified waters of the Back River, Messick Point in Poquoson, Virginia. The regulated area will be established in the interest of public safety during the “Chesapeake Bay Workboat Race”, and will be enforced from 11 a.m. to 5 p.m. on June 24, 2012, with a rain date of July 8, 2012 from 11 a.m. until 5 p.m. The Coast Guard, at its discretion, when practical, will allow the passage of vessels when races are not taking place. Except for participants and vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the regulated area.
This regulation will establish an enforcement location to include all waters of the Back River, Poquoson, Virginia, bounded to the north by a line drawn along latitude 37°06′30″ N, bounded to the south by a line drawn along latitude 37°16′15″ N, bounded to the east by a line drawn along longitude 076°18′52″ W and bounded on the west by a line drawn along longitude 076°19′30″ W.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this rule prevents traffic from transiting a portion of certain waterways during specified times, the effect of this regulation will not be significant due to
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 received no comments from the Small Business Administration on this rule. 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 vessels intending to transit this section of the Back River from 11 a.m. until 5 p.m. on June 24, 2012, with a rain date of July 8, 2012 from 11 a.m. until 5 p.m.
This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for only 6 hours. Vessel traffic could pass safely around the safety zone. Before the activation of the zone, we would issue maritime advisories widely available to users of the river.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Hector Cintron. 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 would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
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 made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(2)
(c)
(2) All Coast Guard vessels enforcing this regulated area can be contacted at telephone number 757–668–5555 or on marine band radio VHF–FM channel 16 (156.8 MHz).
(3) The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF–FM marine band radio announcing specific event date and times.
(d) Enforcement period: This section will be enforced from 11 a.m. to 5 p.m. on June 24, 3012, with a rain date of July 8, 2012 from 11 a.m. to 5 p.m.
Coast Guard, DHS.
Rule; announcement of effective date.
On March 23, 2012, the Coast Guard published in the
33 CFR 151.1513 and 151.2036 will be effective beginning June 21, 2012.
If you have questions about this document, call or email Mr. John Morris, Project Manager, U.S. Coast Guard; telephone 202–372–1402, email
The Coast Guard established a standard for the allowable concentration of living organisms in ships' ballast water discharged in waters of the United States (77 FR 17254). The Coast Guard also established an approval process for ballast water management systems (77 FR 17254). These new regulations will aid in controlling the introduction and spread of nonindigenous species from ships' ballast water in waters of the United States. With the exception of this collection of information, the final rule becomes effective on June 21, 2012. In the final rule, the Coast Guard included a provision to allow vessel owners and operators to request an extension of their compliance date if they cannot practicably comply with the compliance date otherwise applicable to their vessels. This extension provision will give flexibility to vessel owners and operators to comply with the final rule.
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520), an agency may not conduct or sponsor a collection of information until the collection is approved by OMB. Accordingly, the preamble to the final rule stated that the Coast Guard would not enforce the collection of information requirements occurring under 33 CFR 151.1513 and 151.2036 until the collection of information request was approved by OMB, and also stated that the Coast Guard would publish a notice in the
The Coast Guard submitted the information collection request to OMB for approval in accordance with the Paperwork Reduction Act of 1995. On May 10, 2012, OMB approved the revision to the existing collection of information, OMB Control Number 1625–0069, entitled “Ballast Water Management for Vessels with Ballast Tanks Entering U.S. Waters.” The approval for this collection of information expires on May 31, 2015.
Coast Guard, DHS.
Temporary final rule.
Coast Guard Marine Safety Unit Duluth is establishing a temporary safety zone in the Siskiwit Bay area of Cornucopia, WI to help protect participants and spectators from a fireworks display taking place on June 30, 2012.
This rule will be effective from 9:00 p.m. to 11:00 p.m. on June 30, 2012.
Documents mentioned in this preamble are part of docket [USCG–2012–0473]. 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 Judson Coleman, Chief of Waterways management, MSU Duluth, Coast Guard; telephone 218–720–5286 ext 111, 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 because doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with fireworks displays, which are discussed further below.
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
Between 9:00 p.m. and 11:00 p.m. on June 30, 2012, a fireworks display will occur in the vicinity of Siskiwit Bay on Lake Superior in Cornucopia, WI. Based on accidents that have occurred in other Captain of the Port zones and the explosive hazards of fireworks, the Coast Guard has determined that fireworks launches proximate to watercraft pose a significant risk to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.
Because of the aforementioned hazards, the Captain of the Port Duluth has determined that a temporary safety zone is necessary to ensure the safety of spectators and vessels during the launching of the Cornucopia, WI, fireworks display. The safety zone created by this rule will encompass all waters of the area bounded by a circle with a 700-foot radius surrounding the fireworks launch site with its center in position 46°51′35″ N, 091°06′10″ W.; at Cornucopia, WI. [DATUM: NAD 83].
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16 during the course of the event.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 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 rule will be enforced for only two hours over a single night, and will impact only the bay where the event will occur.
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.
(1) This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Siskiwit Bay from 9:00 p.m. to 11:00 p.m. on June 30, 2012.
(2) This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be effective, and thus subject to enforcement, for only 2 hours. Vessel traffic could pass safely around the safety zone. Before the activation of the zone, we will issue local Broadcast Notice to Mariners.
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, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
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
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 establishing a safety zone. 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, 195; 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)
(1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port, Marine Safety Unit Duluth, or his designated on-scene representative.
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Marine Safety Unit Duluth or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Marine Safety Unit Duluth or his on-scene representative to request permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Marine Safety Unit Duluth or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Menominee River in Marinette, WI. This zone is intended to restrict vessels from a portion of Menominee River during the launching of the NOAA vessel, Rueben Lasker, on June 16, 2012. This temporary safety zone is necessary to protect the surrounding public and vessels from the hazards associated with the launching of this large vessel.
This rule is effective from 10:30 a.m. to 12:00 p.m. on June 16, 2012.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, contact or email CWO Jon Grob, U.S. Coast Guard Sector Lake Michigan, at 414–747–7188 or
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. It would be impractical to publish an NPRM because the final details for this event were not received by the Coast Guard with sufficient time to allow for a public comment period. Thus, delaying the effective date of this rule to wait for a comment period to run would prevent the Coast Guard from performing its statutory function of protecting life on navigable waters and thus, would be impractical.
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 NOAA vessel, Rueben Lasker, will be launched from shore to water on June 16, 2012. This event will take place in Marinette, WI. The Captain of the Port, Sector Lake Michigan, has determined that this launching poses significant risks to the boating public in the vicinity of the launch location.
The Captain of the Port, Sector Lake Michigan, has determined that a safety zone is necessary to mitigate the aforementioned safety risks associated with the launching of NOAA's vessel. Thus, this temporary rule establishes a safety zone that encompasses all waters of the Menominee River, in the vicinity of Marinette Marine Corporation, between the Bridge Street Bridge located in position 45°06′12″ N, 087°37′34″ W and a line crossing the river perpendicularly passing through position 45°05′57″ N, 087°36′43″ W, in the vicinity of the Ansul Company. (DATUM: NAD 83). This safety zone will be effective from 10:30 a.m. to 12:00 p.m. on June 16, 2012.
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port, Sector Lake Michigan, or his or her designated representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative. The Captain of the Port, Sector Lake Michigan, or his or her designated representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone around the boat launch will be relatively small and exist for relatively short time. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
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.
This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Menominee River between
This temporary safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessel traffic should be minimal given the location and the time of year that this event is occurring. Furthermore, this safety zone will only be in effect for one and one half hours. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of The Port, Sector Lake Michigan, to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.
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, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person in the the
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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 it 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.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(g), of the Instruction because it involves the establishment of a temporary safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative.
(3) The “designated representative” of the Captain of the Port, Sector Lake Michigan, is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port, Sector Lake Michigan, to act on his or her behalf. The on-scene representative of the Captain of the Port, Sector Lake Michigan, will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative to obtain permission to do so. The Captain of the Port, Sector Lake Michigan, or his or her designated representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking a direct final action to approve a revision to the applicable minor New Source Review (NSR) State Implementation Plan (SIP) for New Mexico submitted by the state of New Mexico on April 25, 2005, which incorporates a new regulation related to minor NSR preconstruction permitting for particulate matter emissions from cotton ginning facilities. The submitted Cotton Gin regulation provides an alternative preconstruction process for cotton ginning facilities that will emit no more than 50 tons per year of particulate matter. The new regulation prescribes, at a minimum, best technical control equipment standards, opacity limitations, and fugitive dust management plan requirements to minimize particulate matter emissions and establishes a minimum setback distance from the gin to the property line. EPA has determined that this SIP revision complies with the Clean Air Act and EPA regulations and is consistent with EPA policies. This action is being taken under section 110 of the Act.
This direct final rule is effective on August 13, 2012 without further notice, unless EPA receives relevant adverse comment by July 13, 2012. If EPA receives such comment, EPA will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA–R06–OAR–2005–NM–0008, by one of the following methods:
(1)
(2)
(3)
(4)
(5)
The State submittal related to this SIP revision, and which is part of the EPA docket, is also available for public inspection at the State Air Agency listed below during official business hours by appointment:
New Mexico Environment Department, Air Quality Bureau, 1301 Siler Road, Building B, Santa Fe, New Mexico.
If you have questions concerning today's direct final action, please contact Ms. Ashley Mohr (6PD–R), Air Permits Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue (6PD–R), Suite 1200, Dallas, Texas 75202–2733, telephone (214) 665–7289; fax number (214) 665–6762; email address
Throughout this document the following terms have the meanings described below:
• “we”, “us” and “our” refer to EPA.
• “Act” and “CAA” mean the Clean Air Act.
• “40 CFR” means Title 40 of the Code of Federal Regulations—Protection of the Environment.
• “SIP” means the State Implementation Plan established under section 110 of the Act.
• “NSR” means new source review.
• “TSD” means the Technical Support Document for this action.
• “NAAQS” means any national ambient air quality standard established under 40 CFR part 50.
We are taking direct final action to approve a revision to the applicable minor New Source Review (NSR) State Implementation Plan (SIP) for New Mexico submitted by the state of New Mexico on April 25, 2005, which incorporates a new regulation related to minor NSR preconstruction permitting for cotton ginning facilities that are minor stationary sources with particulate matter emissions no more than 50 tons per year. The April 25, 2005, SIP submittal includes the incorporation of the new Cotton Gin regulation in 20.2.66 of the New Mexico Administrative Code (NMAC), also known as Part 66.
Our technical analysis of the April 25, 2005, SIP rule revision submittal has found that the new Part 66, containing the Cotton Gin regulation, meets the CAA and 40 CFR Part 51. Therefore, EPA is taking direct final action to approve the incorporation of 20.2.66 NMAC, as submitted on April 25, 2005, into the New Mexico minor NSR SIP. We provide a summary of the reasoning comprising our evaluation in this rulemaking, as well as, a more detailed evaluation and analysis in the Technical Support Document (TSD) for this rulemaking.
We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no relevant adverse comments. As explained in our TSD, we are finding this action noncontroversial because the Cotton Gin regulation is an established limited-scope regulation providing an alternative minor NSR preconstruction permitting approach for cotton ginning facilities that are minor stationary sources of particulate matter emissions. However, in the proposed rules section of this
On April 25, 2005, the Governor of New Mexico submitted a revision to incorporate 20.2.66 NMAC—Cotton Gins into the New Mexico SIP. This submittal includes the following:
•
• Portions of the New Mexico Air Quality Control Act (AQCA), specifically the 2003 amendments to Section 74–2–7(C) and (O), related to permit issuance for cotton ginning facilities, as evidence of the legal authority for the State to adopt 20.2.66 NMAC—Cotton Gins.
A summary of EPA's evaluation of the Cotton Gin regulation and the basis for this action is discussed in section III of this preamble. The TSD includes a detailed evaluation of the April 25, 2005, SIP submittal.
The Cotton Gin regulation, found in Part 66, provides an alternative process for owners and operators of cotton ginning minor stationary sources, as defined in Part 66, to obtain a minor NSR preconstruction permit for particulate matter emissions. The New Mexico Environmental Department (NMED) adopted 20.2.66 NMAC in
Part 66 specifies permit application requirements, particulate matter emission control requirements, opacity limitations, fugitive dust plan requirements, operating and location restrictions, and inspection and recordkeeping requirements for cotton ginning facilities seeking a minor preconstruction permit under 20.2.66 NMAC. The “best system” to minimize particulate matter emissions was determined by NMED to be, at a minimum, technical control standards such as screens with a mesh size of 70 by 70 or finer (United States sieve) on low-pressure exhausts, and high-efficiency cyclone dust collectors on high-pressure exhausts. These control standards minimize particulate matter emissions. The new regulation also establishes minimum setback distance requirements for facilities obtaining a minor NSR preconstruction permit under Part 66. These requirements are specific to the control of emissions and minimization of impacts from particulate matter emissions from cotton gins emitting 50 tons per year or less, including particulate matter less than 10 microns in diameter (PM
The April 25, 2005, SIP revision submitted by New Mexico to incorporate Part 66 in the State's minor NSR SIP establishes an alternative minor NSR preconstruction permitting approach for cotton gins that are minor sources of 50 tons per year or less of particulate matter emissions. The alternative minor NSR preconstruction permitting process contained in the Cotton Gin regulation provides cotton ginning facilities with an option to obtain a minor NSR preconstruction permit via the current minor NSR SIP's preconstruction case-by-case permitting program (Part 72) for all its emissions or to obtain a SIP Part 72 minor NSR preconstruction permit for all of its emissions except for its particulate matter emissions, for which it can obtain a minor NSR preconstruction permit via the alternative process contained in Part 66. As previously mentioned, those cotton gin sources obtaining a minor NSR permit under Part 66 for their particulate matter emissions must also meet the applicable requirements of the SIP's Part 72 for all their other emissions. The Part 66 minor NSR preconstruction permitting process addresses particulate matter emissions from minor source cotton gins without requiring an air quality impact analysis demonstration, while the SIP's Part 72 rule addresses case-by-case preconstruction permitting determinations for all sources for all emissions and requires an analysis of the predicted air quality impact that generally is met by air dispersion modeling. As discussed later, EPA is finding that the submitted Part 66 is protective of the NAAQS and therefore no case-by-case air quality impact analysis is required for cotton gins covered under this rule.
As detailed in the TSD, the April 25, 2005, SIP submittal meets the completeness criteria established in 40 CFR part 51, Appendix V. In addition to the completeness review, the Cotton Gin regulation SIP submittal was evaluated against the applicable requirements contained in the Act and 40 CFR part 51. Section 110(a)(2)(C) of the Act requires, in part, that each implementation plan include a program to regulate the construction and modification of stationary sources, including a permit program as required by parts C and D of Title I of the Act, as necessary to assure that the NAAQS are achieved. Parts C and D, which pertain to prevention of significant deterioration (PSD) and nonattainment, respectively, address major NSR programs for stationary sources, and the permitting program for “nonmajor” (or “minor”) stationary sources is also addressed by section 110(a)(2)(C) of the Act. We generally refer to the latter program as the “minor NSR” program. A minor stationary source is a source whose “potential to emit” is lower than the major source applicability threshold for a particular pollutant defined in the applicable major NSR program.
EPA's implementing regulations for minor NSR SIP revision submissions required by section 110(a)(2)(C) are found at 40 CFR 51.160 and are intended to ensure that new source growth is consistent with maintenance of the NAAQS. Therefore, we evaluated the submitted new rule using the federal regulations under CAA section 110(a)(2)(C), which require each State to include a minor NSR program in its SIP. EPA regulations require that a minor NSR program include:
• A plan that “must set forth legally enforceable procedures that enable” the permitting agency to determine whether a minor source will cause or contribute to a violation of applicable portions of the control strategy, 40 CFR 51.160(a)(1), or interference with attainment or maintenance of a NAAQS within the state or a neighboring state, 40 CFR 51.160(a)(2).
• The procedures must provide for the submission, by the applicant, of such information on:
(1) The nature and amounts of emissions to be emitted by it or emitted by associated mobile sources;
(2) The location, design, construction, and operation of such facility, building, structure, or installation as may be necessary to permit the State or local agency to make the determination referred to in paragraph (a) of this section, 40 CFR 51.160(c) .
• The procedures must identify types and sizes of affected entities subject to review and must discuss “the basis for determining which facilities will be subject to review,” 40 CFR 51.160(e).
The provisions contained in the Cotton Gin regulation SIP submittal meet the requirements in 40 CFR 51.160(a)(1) and (2) that each plan include legally enforceable procedures to determine whether the construction or modification of a facility, building, structure, or installation, or the combination of these will result in: (1) A violation of the applicable portions of the control strategy; or (2) interference with attainment or maintenance of a
The Cotton Gin regulation SIP revision also meets the 40 CFR 51.160(c) requirements by requiring sources that apply for a minor NSR preconstruction permit using the alternative approach contained in Part 66 to provide information regarding the nature and amounts of emissions to be emitted and the location, design, construction, and operation of the facility in accordance with permit application requirements contained in Part 72. The minor NSR preconstruction permitting program contained in Part 72 is already part of the New Mexico SIP. The permit application content requirements are contained in Section 203 of Part 72 and are referenced as requirements of Part 66 in Section 201(A) of that Part.
The April 25, 2005, SIP revision also meets the 40 CFR 51.160(e) requirements by identifying the type of facility that will be subject to review under 40 CFR 51.160(a). New Mexico specifically identified that cotton ginning facilities meeting the definition contained in Part 66 may elect to utilize the alternative minor NSR permitting process contained in the Cotton Gin regulation. This includes the requirement that the cotton gin be a minor stationary source emitting 50 tons per year or less of particulate matter. The major source threshold for particulate matter for cotton ginning facilities is 250 tons per year. Cotton ginning facilities not meeting the definition are not allowed to utilize the alternative minor NSR permitting approach contained in Part 66. See the TSD for more details regarding our technical review of the April 25, 2005, SIP revision submittal.
40 CFR 51.160 requires that the minor NSR SIP revision submittal be enforceable. In particular, 40 CFR 51.160(a) requires that the SIP revision be enforceable in order to ensure that the issuance of the minor NSR permit will not cause or contribute to a violation of any SIP control strategy and will not interfere with attainment and maintenance of the NAAQS. The September 23, 1987, Memorandum from J. Craig Potter, Assistant Administrator for Air and Radiation, and Thomas L. Adams Jr., Assistant Administrator for Enforcement and Compliance Monitoring, entitled “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency” provides EPA's guidance for assessing whether a SIP revision submittal is sufficiently enforceable. We find that the new regulation meets the requirements of section 40 CFR 51.160(a), which requires that SIP revision submittals be enforceable. The submitted regulation specifically identifies the covered source; ensures that the permit issued by NMED will contain specific limits to ensure that the cotton gin's potential to emit remains below major source thresholds for particulate matter emissions; and includes monitoring, recordkeeping, and reporting (MRR) provisions that establish how compliance will be determined and ensure that the PM
EPA has recognized, for certain classes of sources, that it is appropriate for states to establish enforceable emission limits that serve to limit potential to emit through exclusionary rules that apply to certain source categories.
Although not an exclusionary rule, the practicable enforceability criteria in the guidance memoranda serve as a way to measure whether the submitted regulation is practicably enforceable and therefore can ensure that issuance of the minor NSR permit will not cause or contribute to a violation of any SIP control strategy and will not interfere with attainment and maintenance of the NAAQS. The submitted regulation clearly identifies the category of sources that qualify for coverage. Moreover, EPA has found that cotton gins are technically justified for a streamlined approach (the 1998 memoranda). The regulation provides that a source notify the State of its coverage under the regulation by submitting a preconstruction application. The application must propose maximum allowable annual and hourly emissions and include proposed limitations to hours of operation and other limitations that will result in allowable emissions of no more than 50 tons per year. The NMED is authorized to modify any of the proposed limitations and controls to be more stringent, as necessary to ensure that applicable requirements are met. Therefore, the regulation ensures that the applicable emission limits will be clearly specified by the NMED in the issued permit. The rule also includes terms and conditions for monitoring, recordkeeping, reporting, and testing requirements, as appropriate. The applicant is required to comply with the limits in the Part 66 issued permit. Violations of the emission threshold imposed by the submitted regulation can constitute violations of permitting and SIP requirements.
Section 110(l) of the Clean Air Act states:
Each revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in CAA section 171), or any other applicable requirement of this Act.
Thus, under section CAA 110(l), this minor NSR SIP revision submittal must not interfere with attainment, reasonable further progress, or any other applicable requirement of the Act. EPA is approving the revision to the New Mexico minor NSR SIP incorporating the cotton gin minor NSR regulation because, based on our analysis, we have found that Part 66 does not interfere with attainment, reasonable further progress, or any other requirement of the Act.
As previously stated, the provisions contained in Part 66 include
A cotton gin obtaining a minor NSR permit under this new rule must meet, at a minimum, the technical equipment requirements and management practices in the rule. All burr hoppers must be completely enclosed. There can be no visible fugitive emissions from any door, vent, or window. Emissions from the gin yard, storage piles, roads, and vehicles must be controlled by watering, paving and cleaning, surfactants, or other equivalent means. There are opacity limitations on the cyclones, low pressure exhausts, and fuel-burning equipment. High pressure exhausts must be controlled by the use of a high efficiency cyclone dust collector and are subject to an opacity limitation. Low pressure exhausts must be controlled by the use of screens with a mesh size of 70 by 70 or finer (United States sieve), or the use of perforated condenser drums with holes not exceeding 0.045 inches in diameter and are subject to an opacity limitation. There must be a posted speed limit for all vehicles on unpaved haul roads and in unpaved yard areas of 10 miles per hour or less. Fuel burning equipment is limited to certain fuels. The NMED has the authority to require even more stringent requirements than those set forth above. Furthermore, under the submitted regulation, a cotton gin obtaining a minor NSR permit under this regulation must be located at a minimum of 10 feet in all directions from the facility's property boundary. The cotton gin must also be at least 0.25 miles from any existing state park, recreation area, or school and at least three miles from any Class I area. The distance from the cotton gin to the property boundary must also meet minimum requirements based on the facility's PM
The entire state of New Mexico was designated attainment for the 1997 PM
For all other areas of New Mexico located outside of the Anthony PM
Our evaluation of the April 25, 2005, SIP submittal with respect to both PM
EPA is taking direct final action to approve the revision to the New Mexico SIP submitted on April 25, 2005. Specifically, EPA is approving the incorporation of the new Cotton Gin regulation in 20.2.66 NMAC, which establishes an alternative minor NSR preconstruction permitting process for issuing air quality permits to cotton ginning facilities for particulate matter emissions. EPA is finding that the revisions to the New Mexico Air Quality Control Act (AQCA) contained in the April 25, 2005, submittal, specifically the 2003 amendments to Section 74–2–7(C) and (O), related to permit issuance for cotton ginning facilities, provide sufficient legal authority for the NMED to adopt and enforce the 20.2.66 NMAC. See 40 CFR 51.230 and 50.231.
EPA is not acting on other severable portions of the April 25, 2005, SIP submittal.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
Under the Clean Air Act, EPA is taking final action to approve certain revisions to the Arizona State Implementation Plan submitted by the Arizona Department of Environmental Quality. These revisions concern amendments to the statutory and regulatory provisions adopted by the State of Arizona to regulate volatile organic compound emissions from the transfer of gasoline from storage tanks to motor vehicle fuel tanks at gasoline dispensing sites, i.e., stage II vapor recovery. The revisions also amend the definition of “gasoline” to explicitly exclude E85 and thereby amend the requirements for fuels available for use in the Phoenix metropolitan area as well as the requirements for vapor recovery. In approving the revisions, EPA is taking final action to waive the statutory stage II vapor recovery requirements at E85 dispensing pumps within the Phoenix metropolitan area. Lastly, EPA is taking final action to correct an EPA rulemaking that approved a previous version of the Arizona rules regulating these sources and to thereby identify the appropriate regulatory agency and specific rules that were previously approved and incorporated by reference into the Arizona State Implementation Plan.
EPA has established docket number EPA–R09–OAR–2010–0717 for this action. The index to the docket is available electronically at
For further information on the revisions to the Arizona State Implementation Plan submitted by the Arizona Department of Environmental Quality, contact Mr. Andrew Steckel, EPA Region IX, 75 Hawthorne Street (AIR–4), San Francisco, CA 94105, phone number (415) 947–4115, fax number (415) 947–3579, or by email at
Throughout this document, “we,” “us,” and “our” refer to EPA.
On October 3, 2011 (76 FR 61062), we proposed to approve a revision to the Arizona State Implementation Plan (SIP) submitted to EPA on September 21, 2009 by the Arizona Department of Environmental Quality (ADEQ). The purpose of the SIP revision is to update the gasoline vapor recovery program that was originally submitted and approved by EPA in 1994 to meet certain applicable requirements of the Clean Air Act, as amended in 1990 (CAA or “Act”).
ADEQ's submittal represents an update to the stage II requirements but is comprehensive in that the submitted
Table 1 lists the statutory provisions, and Table 2 lists the administrative rules, that were submitted by ADEQ on September 21, 2009 and that we are approving in today's action.
Under Arizona law, the principal stage II vapor recovery requirements are found in Arizona Revised Statutes (ARS) section 41–2132 (“Stage I and stage II vapor recovery systems”), which requires gasoline dispensing sites to be equipped with a stage II vapor collection system within “an ozone nonattainment area designated as moderate, serious, severe or extreme by the United States environmental protection agency under § 107(d) of the clean air act, area A or other geographical area * * *.” ARS section 41–2132(C). “Area A” is defined in ARS section 49–541 and it includes all of the metropolitan Phoenix former 1-hour ozone nonattainment area plus additional areas in Maricopa County to the north, east, and west, as well as small portions of Yavapai County and Pinal County.
ARS 41–2132 also provides an exemption for gasoline dispensing sites with a throughput of less than 10,000 gallons per month or less than 50,000 gallons per month in the case of an independent small business marketer as defined in section 324 of the CAA, and for gasoline dispensing sites that are located on a manufacturer's proving ground. ARS 41–2133 sets forth certain compliance schedules related to the stage II vapor recovery requirements in ARS 41–2132.
The stage II vapor recovery requirements in ARS 41–2132 rely upon the definitions of certain terms, such as “gasoline,” “stage II vapor collection system,” and “E85,” among others, which are codified in ARS sections 41–2015, 41–2121, and 41–2131, and ADEQ included the relevant definitions, along with ARS sections 41–2132 and 41–2133, in the SIP revision submittal dated September 21, 2009. See table 1 of this document. The definition of “gasoline,” which is codified in paragraph (5) of ARS 41–2121, specifically excludes “diesel fuel” and “E85.”
ARS section 41–2132(G) directs the Arizona Department of Weights and Measures (ADWM) to adopt rules that establish standards for the installation and operation of stage I and stage II vapor recovery systems. In 1994, EPA approved an earlier version of ADWM's rules for stage II vapor recovery. See 59 FR 54521 (November 1, 1994). Since then, in addition to renumbering and recodifying the rules, ADWM has amended the vapor recovery rules to delete, modify, and add certain definitions; to approve use of certain new test procedures developed by the California Air Resources Board (CARB); to include general requirements for stage I vapor recovery systems; to add exemptions for motor raceways, motor vehicle proving grounds, and marine and aircraft refueling facilities; to clarify and expand application requirements; and to enhance compliance-related provisions.
ADWM's rules for such systems are now codified at title 20, chapter 2, article 9 (“Gasoline Vapor Recovery”), of the Arizona Administrative Code (AAC). These rules rely upon certain definitions in AAC, title 20, chapter 2, article 1 (“Administration and Procedures”), section R20–2–101 (“Definitions”). ADEQ submitted these rules and definitions to EPA as part of the stage II SIP revision dated September 21, 2009—see table 2 of this document.
In our October 3, 2011 proposed rule, we also explained that in our 1994 final rule approving an earlier version of ADWM's vapor recovery rules, we made an error in how we codified the stage II vapor recovery rules into the Arizona SIP, and were thus proposing to correct that error. Please see our October 3, 2011 proposed rule at pages 61063 and 61064 for additional information on these topics.
Under CAA section 182(b)(3), stage II vapor recovery systems are required to be used at larger gasoline dispensing facilities located in Serious, Severe, and Extreme nonattainment areas for ozone.
However, the CAA provides discretionary authority to the EPA Administrator to, by rule, revise or waive the section 182(b)(3) stage II requirement after the Administrator determines that On-Board Refueling Vapor Recovery (ORVR) is in widespread use throughout the motor vehicle fleet.
EPA first began the phase-in of ORVR by requiring that 40 percent of passenger cars manufactured in model year 1998 be equipped with ORVR. The ORVR requirement for passenger cars was increased to 100 percent by model year 2000. Phase-in continued for other vehicle types and ORVR has been a requirement on virtually all new gasoline-powered motor vehicles (passenger cars, light trucks, and complete
The CAA anticipates that, over the long-term, ORVR will reduce the benefit from, and the need for, stage II vapor recovery systems at gasoline dispensing sites in ozone nonattainment areas, and as noted above, section 202(a)(6) of the CAA allows EPA to revise or waive the application of stage II vapor recovery requirements for areas classified as Serious, Severe, or Extreme for ozone, as appropriate, after such time as EPA determines that ORVR systems are in widespread use throughout the motor vehicle fleet. CAA section 202(a)(6) does not specify which motor vehicle fleet must be the subject of a widespread use determination before EPA may revise or waive the section 182(b)(3) stage II requirement. Nor does the CAA identify what level of ORVR use in the motor vehicle fleet must be reached before it is “widespread.” To date, EPA has issued two memoranda addressing when ORVR widespread use might be found for particular fleets.
EPA expects the possibility of different rates of implementation of ORVR across different geographic regions and among different types of motor vehicle fleets within any region. Given this, EPA does not believe that CAA section 202(a)(6) must be read narrowly to allow a widespread use determination and waiver of the stage II requirement for a given area or area's fleet only if ORVR use has become widespread through the entire United States, or only if ORVR use has reached a definite level in each area. Rather, EPA believes that section 202(a)(6) allows the Agency to apply the widespread use criterion to either the entire motor vehicle fleet in a State or nonattainment area, or to special segments of the overall fleet for which ORVR use is shown to be sufficiently high, and to base widespread use determinations on differing levels of ORVR use, as appropriate. EPA also believes that the Act allows the Agency to use an area-specific rulemaking approving a SIP revision to issue the section 202(a)(6) waiver for a relevant fleet in a nonattainment area.
One metric that EPA has considered in determining whether ORVR use is widespread within a given motor vehicle fleet considers when VOC emissions resulting from the application of ORVR controls alone equal the VOC emissions when both stage II vapor recovery systems and ORVR controls are used, after accounting for incompatibility excess emissions. The incompatibility excess emissions factor relates to losses in control efficiency when certain types of stage II and ORVR are used together. One metric previously discussed by EPA for widespread use in distinct and unique situations was that widespread use will likely have been reached when the percentage of motor vehicles in service with ORVR, the vehicle miles traveled (VMT) by ORVR-equipped vehicles, or the gasoline dispensed to ORVR-equipped vehicles reaches 95 percent. See the 2006 Page/Oge Memorandum, page 2. Application of the 95 percent criterion could lead to, for example, waiver of stage II vapor recovery requirements at gasoline dispensing sites that exclusively fuel new automobiles at assembly plants and rental cars at rental car facilities given the high percentage (essentially 100%) of ORVR-equipped vehicles associated with such facilities.
Recently, EPA proposed criteria for determining whether ORVR is in “widespread use” for purposes of controlling motor vehicle refueling emissions throughout the motor vehicle fleet. See 76 FR 41731 (July 15, 2011). In EPA's July 15, 2011 action, EPA also proposed criteria that would establish June 30, 2013 as the date on with “widespread use” will occur nationally, and the date on which a nationwide waiver of stage II gasoline vapor recovery systems will be effective.
EPA, after considering public comments, intends to take final action regarding the July 15, 2011 proposal to establish a nationwide date for determining when ORVR is in “widespread use” and for waiving the stage II requirement. In the proposed rule, EPA stated that it intends to provide that individual states may submit SIP revisions that demonstrate that ORVR widespread use has occurred (or will occur) on a date earlier than the date identified in the final rule for areas in their states, and to request that the EPA revise or waive the section 182(b) (3) requirement as it applies to only those areas. See 76 FR at 41733. Consistent with EPA's July 15, 2011 proposal to allow states to submit such SIP revisions, EPA is taking final action today to approve an area-specific revision to the Arizona SIP and to approve a waiver for a specific portion of the motor vehicle fleet, namely flexible fuel vehicles refueled with E85 gasoline blend, in the Phoenix metropolitan area.
As explained in our October 3, 2011 proposed rule, the “Phoenix area,” defined by the Maricopa Association of Governments' (MAGs') urban planning area boundary (but later revised to exclude the Gila River Indian Community at 70 FR 68339 (November 10, 2005)), was classified as a “Moderate” nonattainment area for the 1-hour ozone national ambient air quality standard (NAAQS) and later reclassified as “Serious” for the 1-hour ozone standard. See 56 FR 56694, at 56717 (November 6, 1991) and 62 FR 60001 (November 6, 1997). As noted above, section 182(b)(3) of the Act required States with ozone nonattainment areas such as the Phoenix area to adopt and submit a SIP revision requiring gasoline dispensing facilities to install and operate stage II vapor recovery equipment, and in response, ADEQ submitted the statutory provisions and rules establishing stage II vapor recovery requirements in the Phoenix area. EPA approved the stage II vapor recovery rules as a revision to the Arizona SIP. See 59 FR 54521 (November 1, 1994). We are taking final action today to approve a SIP revision that updates the stage II vapor recovery requirements for the Phoenix metropolitan area and that waives stage II vapor recovery requirements at E85 dispensing pumps.
In our October 3, 2011 proposed rule, we explained how we evaluated the statutory provisions and administrative rules that ADEQ submitted to update the Arizona SIP with respect to the stage II vapor recovery program in the Phoenix metropolitan area. To summarize that information, we evaluated ADEQ's stage II vapor recovery SIP update revision based on the Phoenix metropolitan area's designations and classifications for the now-revoked one-hour ozone standard and the current eight-hour ozone standard to ensure Arizona's stage II program complies with section 182(b)(3) of the Act (which is described in section I.B. of this document), to ensure that the requirements of the program are enforceable (see CAA section 110(a)(2)), and that the changes would not interfere with reasonable further progress or attainment of the NAAQS (see CAA section 110(l)).
In doing so, we relied on a number of guidance and policy documents including, but not limited to the 2006 Page/Oge Memorandum
In our October 3, 2011 proposed rule, we concluded that the statutory provisions meet the CAA section 182(b)(3) stage II requirements for the following reasons:
• The State is requiring stage II vapor recovery controls in an area that encompasses all of the 1-hour ozone “serious” nonattainment area consistent
• The State law exemption for a “gasoline dispensing site that is located on a manufacturer's proving ground” in ARS 41–2132(C) does not apply to any facility within the nonattainment area, and, assuming that the fuel throughput at the facility to which it had applied is representative of the throughput of any such facility that might locate within the nonattainment area, the exemption would be consistent with the low-volume throughput exemptions allowed for in CAA section 182(b)(3).
Further, in our October 3, 2011 proposed rule, we evaluated whether the exclusion of “E85” from the State law definition of gasoline comports with section 182(b)(3) vapor recovery requirements. Based on this evaluation, we concluded that, given how close the ORVR-equipped percentage for flexible fuel vehicles (FFVs) in the Phoenix metropolitan area (87 percent in 2008 and climbing) is to the ORVR widespread use threshold based on comparable VOC emissions (95 percent) and because the change in emissions due to use of E85 would not interfere with attainment and RFP of any of the NAAQS, ORVR is in widespread use in the FFV vehicle fleet in the Phoenix metropolitan area for the purposes of CAA section 202(a)(6). Based on the finding of “widespread use,” in our October 3, 2011 proposed rule, we proposed to waive the stage II vapor recovery requirements for E85 dispensing pumps in the Phoenix metropolitan area under section 202(a)(6).
Third, in our October 3, 2011 proposed rule, we noted that changes in ADWM's vapor recovery rules would generally serve to clarify and improve the existing stage II vapor recovery rules that we approved into the SIP in 1994, and that the only significant changes potentially affecting approvability with respect to CAA section 182(b) (3) would be the new exemptions for motor raceways, and for marine and aircraft refueling facilities. We evaluated the new exemptions and concluded that they would be acceptable under section 182(b)(3) because the fuel throughput at the one motor raceway facility to which the exemption applies is far below the 10,000-gallon per month low-throughput threshold exemption allowed under CAA section 182(b)(3) and because the exemptions as applied to the race cars themselves and to marine and aircraft refueling facilities do not apply to apply to “motor vehicles” as defined in CAA section 216(2) and thus are not required to be subject to stage II vapor recovery requirements under section 182(b)(3). Please see our October 3, 2011 proposed rule at pages 61066 and 61067 for more information about our evaluation of the submitted statutory provisions and rules for compliance with section 182(b)(3) and for more information about our proposed waiver under section 202(a)(6).
In our October 3, 2011 proposed rule, we also evaluated the statutory provisions and administrative rules submitted by ADEQ as part of the September 21, 2009 SIP revision under CAA section 110(l) for possible interference with any applicable requirement concerning reasonable further progress (RFP) and attainment of any of the NAAQS or any other applicable requirement under the Act. With respect to this SIP revision, we found that the only potentially significant adverse effect on emissions and, thus, potential for interference would stem from the exclusion of E85 from the definition of “gasoline” in ARS 41–2121. The exclusion of E85 from “gasoline” would allow for increased use of E85 (by FFVs) as a motor fuel in the Phoenix metropolitan area and would result in corresponding change in emissions from FFVs using E85 relative to the same vehicles using the specially formulated gasoline (referred to as “Arizona Cleaner Burning Gasoline,” or “Arizona CBG”) otherwise required.
In the existing SIP, Arizona includes a definition of “gasoline,” AAC R4–31–901(5), that is consistent with the NSPS definition. The SIP revision that we are approving today would replace the existing SIP definition of “gasoline” from Arizona's rules for gasoline vapor recovery (AAC title 20, chapter 2, article 9) with the definition of “gasoline” from Arizona's statutes governing motor fuel (ARS section 41–2121(5)). The definition of “gasoline” in ARS section 41–2121(5) is as inclusive as the existing SIP definition in AAC R4–31–901(5), except for the explicit exclusion of E85. Given that E85 can only be used by FFVs, and based on our proposed “widespread use” determination with respect to the FFV fleet in the Phoenix area that would be fueled at E85 dispensing pumps, we find the exception for E85 from the definition of “gasoline” acceptable under CAA section 182(b)(3). Moreover, to allow for the distribution and sale of E85 in the Phoenix area, a change in the term of “gasoline” (to exclude E85) for stage II vapor recovery purposes alone would not have sufficed. Because of the boutique fuel requirements of Arizona CBG that have been approved into the Arizona SIP, a change in the definition of “gasoline” as a motor fuel (to exclude E85) was also necessary.
To evaluate the change in emissions, we reviewed a recently published study from the Journal of the Air & Waste Management Association titled “Effect of E85 on Tailpipe Emissions from Light-Duty Vehicles
Thus, with respect to nitrogen dioxide, carbon monoxide and particulate matter, because emissions using E85 would be lower than those using CBG, we concluded that the incremental substitution of CBG with E85 would not interfere with RFP or
We also concluded that the net effect on ozone conditions in the Phoenix 8-hour ozone nonattainment area would be beneficial despite the potential higher VOC emission rate by E85-fueled FFVs (relative to CBG-fueled FFVs) because of the offsetting effect of NO
On the basis of the above rationale, we determined in our October 3, 2011 proposed rule that this SIP revision, including the change in the definition of “gasoline” to exclude “E85,” would not interfere with RFP and attainment for any of the NAAQS. Please see our October 3, 2011 proposed rule at pages 61067 and 61068 for more information about our evaluation of the submitted statutory provisions and rules for compliance with section 110(l) of the CAA.
Lastly, in our October 3, 2011 proposed rule, we described our direct final action (59 FR 54521, November 1, 1994) to approve the administrative rules adopted by ADWM to provide for the installation and operation of stage II vapor recovery systems, and in which we included erroneous references and failed to identify the specific rules being incorporated by reference into the SIP. To address this issue, we proposed, under section 110(k)(6) and 301(a) of the CAA,
Our October 3, 2011 proposed rule provided a 60-day comment period. During this period, we received no comments on our proposed action.
As authorized in section 110(k)(3) of the Act and for the reasons provided in our October 3, 2011 proposed rule and summarized herein, EPA is taking final action to approve the statutory provisions and updated administrative rules establishing certain vapor recovery requirements in the Phoenix metropolitan area as a revision to the Arizona SIP. Specifically, we are taking final action to approve Arizona Revised Statutes (ARS) sections listed in table 1 of this document and the Arizona Administrative Code (AAC) sections listed in table 2 of this document.
In so doing, we conclude that the submitted statutory provisions and updated administrative rules meet the related requirements for stage II vapor recovery under CAA section 182(b)(3) and will not interfere with attainment and RFP of any of the NAAQS or any other CAA applicable requirement, consistent with the requirements of CAA section 110(l). Final EPA approval of the updated statutory provisions and rules and incorporation of them into the Arizona SIP makes them federally enforceable.
Lastly, under section 110(k)(6) and 301(a) of the CAA, we are taking final action to correct and clarify the incorporation of the previous version of ADWM's vapor recovery related administrative rules into the Arizona SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) given the limited nature of this SIP revision (as to geographic scope and vehicle applicability);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. section 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(69) * * *
(i) * * *
(A)
(
(148) The following plan revision was submitted on September 21, 2009 by the Governor's designee.
(i)
(i) Article 1 (General Provisions), section 41–2051 (“Definitions”), subsections (6) (“Certification”), (10) (“Department”), (11) (“Diesel fuel”), (12) (“Director”), and (13) (“E85”), amended by Laws 2008, Ch. 254, § 2;
(ii) Article 6 (Motor Fuel), section 41–2121 (“Definitions”), subsection (5) (“Gasoline”) amended by Laws 2007, Ch. 292, § 11; and
(iii) Article 7 (Gasoline Vapor Control), section 41–2131 (“Definitions”), added by Laws 1992, Ch. 299, § 6; section 41–2132 (“Stage I and stage II vapor recovery systems”), amended by Laws 2010, Ch. 181, § 2; and section 41–2133 (“Compliance schedules”), amended by Laws 1999, Ch. 295, § 17.
(
(
(i) Sections R20–2–901 (“Material Incorporated by Reference”), R20–2–902 (“Exemptions”), R20–2–903 (“Equipment and Installation”), R20–2–904 (“Application Requirements and Process for Authority to Construct Plan Approval”), R20–2–905 (“Initial Inspection and Testing”), R20–2–910 (“Annual Inspection and Testing”), R20–2–911 (“Compliance Inspections”), and R20–2–912 (“Enforcement”), effective (for state purposes) on June 5, 2004.
(ii) Sections R20–2–907 (“Operation”), R20–2–908 (“Training and Public Education”), and R20–2–909 (“Recordkeeping and Reporting”), effective (for state purposes) on October 8, 1998.
U.S. Environmental Protection Agency (EPA).
Final rule.
EPA is approving a state implementation plan (SIP) revision submitted by the State of Arizona on June 13, 2007, to demonstrate attainment of the 1997 8-hour ozone national ambient air quality standards (NAAQS) in the Phoenix-Mesa nonattainment area by June 15, 2009. This action was proposed in the
This rule is effective on July 13, 2012.
EPA has established docket number EPA–R09–OAR–2012–0253 for this action. Generally, documents in the docket for this action are available electronically at
Anita Lee, Air Planning Office (AIR–2), U.S. Environmental Protection Agency, Region IX, (415) 972–3958,
Throughout this document, “we,” “us” and “our” refer to EPA.
On April 11, 2012 (70 FR 21690), EPA proposed to approve the “Eight-Hour Ozone Plan for the Maricopa Nonattainment Area” (2007 Ozone Plan) submitted as a SIP revision by the Arizona Department of Environmental Quality (ADEQ) on June 13, 2007. We proposed to approve the 2007 Ozone Plan based on our determination that it contains all of the plan elements required for ozone nonattainment areas under title I, part D, subpart 1 of the CAA, including the demonstration of reasonably available control measures (RACM), reasonable further progress (RFP), emission inventories, transportation conformity motor vehicle emission budgets for 2008, and contingency measures to be implemented if the Phoenix-Mesa nonattainment area fails to attain by June 15, 2009.
EPA provided a 30-day public comment period on our proposed action. This comment period ended on May 11, 2012. We received no comments.
Under CAA section 110(k)(3), EPA is fully approving the 2007 Ozone Plan for Phoenix-Mesa based on our determination that it meets all applicable requirements under subpart 1 of part D, title I of the CAA for the 1997 8-hour ozone NAAQS, as follows:
1. The 2002 base year emission inventory as meeting the requirements of CAA section 172(c)(3) and 40 CFR 51.915;
2. The reasonably available control measures demonstration as meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.912(d);
3. The reasonable further progress demonstration as meeting the requirements of CAA section 172(c)(2) and 40 CFR 51.910;
4. The attainment demonstration as meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.908;
5. The contingency measures for failure to make RFP or to attain as meeting the requirements of CAA section 172(c)(9); and
6. The motor vehicle emission budgets for the attainment year of 2008, which are derived from the attainment demonstration, as meeting the requirements of CAA section 176(c) and 40 CFR part 93, subpart A.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Nitrogen dioxide, Volatile organic compounds.
42 U.S.C. 7401
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(149) The following plan was submitted on June 13, 2007 by the Governor's designee.
(i) [Reserved]
(ii)
(2) Eight-Hour Ozone Plan for the Maricopa Nonattainment Area, dated June 2007, including Appendices, Volumes One and Two.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing the limited approval of the Commonwealth of Virginia's Regional Haze State Implementation Plan (SIP) revision. EPA is taking this action because Virginia's SIP revision, as a whole, strengthens the Virginia SIP. This action is being taken in accordance with the requirements of the Clean Air Act (CAA) and EPA's rules for states to prevent and remedy future and existing anthropogenic impairment of visibility in mandatory Class I areas through a regional haze program. EPA is also approving this revision as meeting the infrastructure requirements relating to visibility protection for the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS) and the 1997 and 2006 fine particulate matter (PM
This final rule is effective on July 13, 2012.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2011–0091, EPA–R03–OAR–2011–0584. All documents in the docket are listed in the
Melissa Linden, (215) 814–2096, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On January 25, 2012 (77 FR 3691), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed limited approval and limited disapproval of Virginia's Regional Haze SIP. The formal SIP revisions were submitted by the Virginia Department of Environmental Quality (VADEQ) on July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011. This revision also meets the requirements of CAA sections 110(a)(2)(D)(i)(II) and 110 (a)(2)(J), relating to visibility protection for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM
The SIP revision includes a long term strategy with enforceable measures ensuring reasonable progress towards meeting the reasonable progress goals for the first planning period through 2018. Virginia's Regional Haze Plan contains the emission reductions needed to achieve Virginia's share of emission reductions and sets the reasonable progress goals for other states to achieve reasonable progress at the two Class I Areas within Virginia, Shenandoah National Park and James River Face Wilderness Area. The specific requirements of the CAA and EPA's Regional Haze Rule (RH rule) (64 FR 35732, July 1, 1999) and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. EPA received numerous adverse comments on the January 25, 2012 NPR. A summary of the comments submitted and EPA's responses are provided in section III of this document.
The EPA has also completed an analysis and has proposed the Transport Rule as an alternative to BART for electrical generating units (EGUs) located in the Transport Rule states (which include Virginia). (76 FR 82219, December 30, 2011). Given the significance of the emissions reductions from CAIR to Virginia's demonstration that it has met the requirements of the Regional Haze Rule, EPA proposed issuing a limited disapproval of the Virginia SIP. Although CAIR is currently being administered by EPA pursuant to an order by the Court of Appeals for the D.C. Circuit in
EPA is finalizing its limited approval of the revisions to the Virginia SIP submitted on July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011, address regional haze for the first implementation period. EPA is issuing a limited approval of the Virginia SIP since overall the SIP will be stronger and more protective of the environment with the implementation of those measures by Virginia and with having Federal approval and enforceability than it would without those measures being included in the Virginia's SIP. The final limited disapproval and FIP will be in a separate rulemaking action done by EPA. EPA is also approving this revision as meeting the applicable visibility related requirements of section 110(a)(2) of the CAA including, but not limited to sections 110(a)(2)(D)(i)(II) and 110(a)(2)(J) of the CAA, relating to visibility protection for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.
This action finalizing the limited approval of the Virginia Regional Haze SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the CAA.).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Therefore, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(d) Limited approval of the Regional Haze Plan submitted by the Commonwealth of Virginia on July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of killed, nonviable
This regulation is effective June 13, 2012. Objections and requests for hearings must be received on or before August 13, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2010–0078, is at
Some documents cited in this final rule are located in a different docket associated with a notice of receipt (NOR) of an application for a new pesticide,
Ann Sibold, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–6502; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2010–0078 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 13, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b). In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2010–0078, by one of the following methods:
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.” Additionally, section 408(b)(2)(D) of FFDCA requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] * * * residues and other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with section 408(b)(2)(D) of FFDCA, EPA reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
1.
2.
All applicable mammalian toxicology data requirements supporting the request for an exemption from the requirement of a tolerance for residues of killed, nonviable
The overall conclusions from all toxicological information submitted by the petitioner are briefly described in this unit, while more in-depth synopses of some study results can be found in the associated Biopesticides Registration Action Document (BRAD) provided as a reference in Unit IX. (Ref. 1).
1.
The toxicity component of the acute oral toxicity/pathogenicity and acute pulmonary toxicity/pathogenicity data requirements was fulfilled by MRID No. 479468–02 (acute oral toxicity, described in this unit) and MRID No. 479468–04 (acute inhalation toxicity, described in this unit), respectively.
2.
3.
4.
5.
6.
7.
In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).
1.
i. The proposed pesticide product will be diluted prior to application.
ii. Pre-plant applications will occur 1–45 days or more before planting.
iii. At-plant applications will be broadcast and incorporated into the soil mechanically or by rainfall or sprinkler application.
iv. Post-plant applications for trees will be made as a broadcast or banded application to soil surface below established trees or between tree rows and incorporated into the soil by rainfall, irrigation or mechanical incorporation.
v. Post-plant lay-by and split application will be made between rows and incorporated into the soil.
vi. Application to rice fields is followed by flooding or partially draining and re-flooding the fields. and
vii. Rainfall and sprinkler irrigation will further wash residues of the pesticide from treated crops.
Following all applications, killed, nonviable
In the unlikely event that any residues of the pesticide remain in or on consumed food, no adverse effects would be expected, based on the lack of toxicity, infectivity, and/or pathogenicity demonstrated in the submitted studies.
2.
The proposed directions for applications to established turf in landscapes provide for dilution of the product prior to application, but do not include measures to incorporate the product. Since established turf constitutes significant ground cover, this, in itself, would be expected to reduce the potential runoff of the pesticide into surface water and percolation to ground water. The proposed directions for applications to ornamentals in landscapes specify dilution prior to application and incorporation by irrigation or raking into the soil. These measures, along with natural degradation and incorporation of the product into upper soil strata, will reduce the potential for runoff into surface or ground water.
The proposed use in rice provides the greatest potential for residues of killed, nonviable
Given the natural occurrence of
In the unlikely event that the proposed uses of the pesticide result in residential, non-occupational exposure, no adverse effects would be expected, based on the lack of toxicity, irritation and sensitization demonstrated in available data (see additional discussion in Unit III.).
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a
EPA has not found killed, nonviable
FFDCA section 408(b)(2)(C) provides that, in considering the establishment of a tolerance or tolerance exemption for a pesticide chemical residue, EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor. In applying this provision, EPA either retains the default value of 10X or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.
Based on the acute toxicity and pathogenicity data discussed in Unit III.B., EPA concludes that there are no threshold effects of concern to infants, children or adults when killed, nonviable
Moreover, based on the same data and EPA analyses as presented in this unit, the Agency is able to conclude that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to the residues of killed, nonviable
An analytical method is not required for enforcement purposes for the reasons stated in this document and because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. In this context, EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for killed, nonviable
In the
EPA concludes that there is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of killed, nonviable
1. U.S. EPA. 2012. Biopesticides Registration Action Document Killed, Nonviable
2. Murray PR, EJ Baron, JH Jorgensen, ML Landry, MA Pfaller, editors. 2007. Manual of Clinical Biology. Vol.1. 9th Ed. Washington (DC): ASM Press.
3. Doumbou CL, Akimov V, Beaulieu C. 1998. Selection and characterization of microorganisms utilizing thaxtomin A, a phytotoxin produced by
4. Centers for Disease Control and Prevention. 2009. Drinking Water—Water Treatment. Available from
5. Faucher E, Savard T, Beaulieu C. 1992. Characterization of actinomycetes isolated from common scab lesions on potato-tubers.
6. Loria R, Kers J, Joshi M. 2006. Evolution of plant pathology in
This final rule establishes a tolerance exemption under section 408(d) of FFDCA in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require EPA consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of killed, nonviable
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of methyl bromide in or on cotton, undelinted seed under the Federal Food, Drug, and Cosmetic Act (FFDCA) because there is a need for imported undelinted cottonseed for use as additional feed for dairy cattle in the United States.
This regulation is effective June 13, 2012. Objections and requests for hearings must be received on or before August 13, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2012–0245; FRL–9352–4, is available either electronically through
Kimberly Nesci, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–8059; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2012–0245 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 13, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any Confidential Business Information (CBI) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2012–0245, by one of the following methods:
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•
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In the
Comments were received in response to the proposed rule from a large dairy producer trade association, from a dairy industry expert, and from two other individuals. The comments from the dairy producer trade association and from the dairy industry expert are in support of the establishment of a tolerance for methyl bromide on cottonseed out of a concern with a shortage of domestically-grown cottonseed. These commenters stressed that “cottonseed is a uniquely superior feed for dairy cattle because it contains high concentrations of protein, energy (or fat), and fiber; is highly digestible; and has proven to increase milk production. The commenters argued that alternative feeds are not “equivalent substitutes” because they do not contain a similar mix of these components and because they are generally more expensive.
The other two comments were adverse to EPA's proposed action. A comment from one anonymous individual objected to the establishment of the tolerance due to the toxic nature of methyl bromide and due to potential effects on the environment. EPA has determined, however, that there would be no human dietary exposure from the use of methyl bromide to fumigate cottonseed. In addition, the safety standard for approving tolerances under section 408 of the FFDCA focuses on potential harm to human health. Environmental and non-target species considerations are outside of the scope of this rule.
The second comment from another individual raised several issues. EPA is responding to these issues by topic. First, the individual argues that EPA should, in collaboration with the United States Department of Agriculture (USDA), establish the necessity of cottonseed as feed for cattle by analyzing the supply and demand of cottonseed and available alternatives prior to approving a methyl bromide pesticide tolerance. The commenter also asserts that EPA implies that cottonseed is the only dairy cattle feed available. EPA's response to this concern is twofold. First, and most important, EPA's discussion of the decreased availability of cottonseed in the proposed rule was included only for the purpose of explaining the context of the Agency action. It did not provide the legal basis for the proposed tolerance. The legal standard for the establishment of a tolerance is whether the tolerance is safe. 21 U.S.C. 346a(b)(2)(A)(i). The degree of shortage of cottonseed does not affect this safety determination. Thus, both this comment and the comments from the trade association and dairy expert do not address the legal basis for establishing the proposed methyl bromide tolerance on cottonseed. Second, while not relevant to the ultimate decision on safety, EPA's statements regarding the current shortage of cottonseed were accurate. According to USDA, drought conditions in Texas have reduced cotton production by 13% between the 2010/2011 and 2011/2012 seasons. In 2011, the average U.S. yield of cotton per harvested acre was the lowest it had been since 2003. Moreover, as noted in the proposal and as supported by the
The commenter questions two decisions and assumptions made by EPA in its decision to establish a tolerance: The use of fumigation trials on tree nuts as a surrogate for cottonseed and the assumption that methyl bromide would undergo chemical reactions in the digestive system of dairy cattle. The Agency believes that nuts are an adequate surrogate in the case of methyl bromide commodity fumigation. In controlled trials with numerous commodities, nuts had the highest residues of any commodity. Studies with other small seeds such as poppy seeds and sesame seeds showed residues of 35 ppm, in contrast to the nuts where a maximum residue of 138 ppm was observed. To be protective, the Agency chose to translate from nuts to cottonseed, since they both contain oils. While the Agency does not have specific studies on the metabolism of methyl bromide in cattle, oral metabolism studies in rats have indicated methyl bromide undergoes chemical transformations in the digestive system to compounds that are thought to be less toxic. Ruminants such as cattle have complex digestive systems with four compartments, including a fermentation chamber. Therefore, given the complexity of the ruminant digestive system, there is considerably more opportunity for digestion and detoxification of a simple molecule such as methyl bromide in cattle as compared to rats. Finally, the commenter also claims that EPA failed to consider the impact of methyl bromide pesticide levels in cottonseed used as feed on the health of livestock. EPA expects methyl bromide exposure to cattle to be very low. Cottonseed is very unlikely to comprise more than 15% of the dairy cattle diet and cottonseed and residues of methyl bromide in all other potential feed items are much lower than the levels anticipated in cottonseed. Further, residues of methyl bromide in the cottonseed will be very low, as the residues will largely dissipate after fumigation, especially given the time needed to ship cottonseed to the United States. For commodity fumigations with methyl bromide the Agency generally sets tolerances based on residue levels 24 hours after completion of fumigation. Commodities such as nuts and cottonseed are stored for much longer than 24 hours before they are distributed for consumption. Controlled trials with nuts as well as other commodities indicate that residues dissipate considerably with time. For example, residues in nuts dissipated to residues ranging from <0.1 to 11 ppm after only 1 week of storage. Mammalian oral toxicity studies available to the Agency indicate that much higher concentrations of methyl bromide in the diet would be needed to elicit any sort of toxic effect (the maximum reasonable dietary burden for dairy cattle is approximately 20 ppm (assuming upper bound residues), and the no-observed effect level in long-term oral toxicity studies in rats is approximately 50 ppm).
The commenter asserts that approving the use of methyl bromide fumigation on cottonseed imports will increase occupational exposure to methyl bromide and requests that EPA weigh the risks of occupational exposure against the benefits of imported cottonseed. However, under the existing legal framework provided by section 408 of the FFDCA EPA is authorized to establish pesticide tolerances or exemptions where it has been demonstrated that the tolerance meets the safety standard imposed by that statute. In making this determination, EPA is specifically prohibited from considering occupational exposure to a pesticide. 21 U.S.C. 346a(b)(2)(D)(vi). If an applicant sought to register methyl bromide for use in the United States, the issue of risks from occupational exposure would be considered by EPA in making a determination on registration of such a use under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136
An adequate analytical method, the head-space procedure of King et al. is available for enforcement of methyl bromide tolerances. Samples are blended with water at high speed in airtight jars for 5 minutes. After 15 minutes, the partitioned gas phase is sampled and analyzed by gas chromatography with electron capture detection (GC/EC). See the February 22, 2002, Residue Chemistry Chapter for the methyl bromide RED available in Docket EPA–HQ–OPP–2005–0123.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for methyl bromide on cottonseed.
Based on the information, analysis, and conclusions in the April 6, 2012 proposal (77 FR 20752) (FRL–9345–1), as well as the consideration of public comments discussed herein, a tolerance is established for residues of methyl bromide in or on cottonseed at 150 ppm.
This final rule establishes tolerances under FFDCA section 408(d) on EPA's own initiative. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Pursuant to the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4).
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(b)
(c)
(d)
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Request for information.
The U.S. Department of Energy (DOE) is requesting data and information about the impact of its recently amended energy conservation standards for residential electric water heaters on utility programs that use high-storage-volume (above 55 gallons) electric storage water heaters to reduce peak electricity demand. DOE amended its standards for residential water heaters on April 16, 2010, and compliance with the amended standards is required beginning on April 16, 2015. Of particular relevance, the amended standards for residential water heaters raised the minimum requirements for electric storage water heaters with storage volumes above 55 gallons to levels that are currently achieved through the use of heat pump water heater technology. Utilities have expressed concerns that the amended levels will negatively impact programs designed to reduce peak energy demand by heating water only during off-peak times and storing the water for use during peak demand periods. This request for information solicits feedback on the effects of the amended energy conservation standards for electric storage water heaters on such utility programs.
DOE will accept written comments, data, and information on this notice until July 13, 2012.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
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All submissions received must include the agency name and docket number and/or RIN for this rulemaking. No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document (Public Participation).
A link to the docket web page can be found at:
For further information on how to review the docket, contact Ms. Brenda Edwards at (202) 586–2945 or by email:
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:
Mr. Ari Altman, U.S. Department of Energy, Office of the General Counsel, Mailstop GC–71, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 287–6307. Email:
The following section briefly discusses the statutory authority underlying the U.S. Department of Energy's (DOE's) standards for residential water heaters, as well as some of the relevant historical background related to the establishment of standards for residential water heaters.
Title III, Part B
Under EPCA, this program generally consists of four parts: (1) Testing; (2) labeling; (3) establishing 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. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6293) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA.
DOE must follow specific statutory criteria for prescribing amended standards for covered products. As indicated above, any amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) Moreover, DOE may not prescribe a standard: (1) For certain products, including residential water heaters, if no test procedure has been established for the product, or (2) if DOE determines by rule that the proposed standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)–(B)) In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven factors:
1. The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
2. The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the imposition of the standard;
3. The total projected amount of energy, or as applicable, water, savings likely to result directly from the imposition of the standard;
4. Any lessening of the utility or the performance of the covered products likely to result from the imposition of the standard;
5. The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the imposition of the standard;
6. The need for national energy and water conservation; and
7. Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)(I)–(VII)).
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. See 42 U.S.C. 6295(o)(2)(B)(iii).
Additionally, 42 U.S.C. 6295(q)(1) specifies requirements when promulgating a standard for a type or class of covered product that has two or more subcategories. DOE must specify a different standard level than that which applies generally to such type or class of products for any group of covered products that have the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)). A rule prescribing an energy conservation standard for a type (or class) of covered products shall specify a level of energy use or efficiency higher or lower than that which applies (or would apply) for such type (or class) for any group of covered products that have the same function or intended use, if the Secretary determines that covered products within such group consume a different kind of energy from that consumed by other covered products within such type (or class); or have a capacity or other performance-related feature that other products within such type (or class) do not have and such feature justifies a higher or lower standard from that which applies (or will apply) to other products within such type (or class). Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. (42 U.S.C. 6295(q)(2))
Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)–(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d)).
Before being amended by the National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100–12), Title III of EPCA included water heaters equipment as covered products. NAECA's amendments to EPCA established energy conservation
The energy conservation standards for residential water heaters in the April 2010 Final Rule will apply to products manufactured on or after April 16, 2015. 75 FR 20112. This final rule completed the second amended standards rulemaking for water heaters required under 42 U.S.C. 6295(e)(4)(B). The standards consist of minimum energy factors (EF) that vary based on the storage volume of the water heater, the type of energy it uses (
Electric thermal storage (ETS) programs, also known as load shifting or demand response programs, are potentially an effective way for utilities to manage peak demand load by limiting the times when certain appliances are operated. As part of such programs, utilities typically provide an incentive for consumers (such as reduced electricity rates, subsidized cost of a new appliance, or annual fixed payment incentives) to enroll in a program allowing the utility company to control when the appliance cycles on and off. The appliance is cycled on during off-peak hours, and the electricity consumed is stored by the appliance as thermal energy for use during peak demand times. In the case of water heaters, the utility typically offers some incentive for its customers to enroll in the ETS program, and in return the utility is allowed to control the operation of the customer's water heater (typically through using either a timed switch or a radio controlled switch) in a manner that prevents the appliance from turning on during peak load times and forces the water heating operation to occur during off-peak demand times. Several stakeholders (including the National Rural Electric Cooperative Association (NRECA), PJM Interconnection, American Public Power Association (APPA), and Steffes Corporation) have indicated to DOE that the consumer is often responsible for the purchase and installation cost of the water heater, but such cost may be offset in part by the utility, and the utility typically covers the cost of the control technology with no charge to the consumer. Since these programs allow water heating only during non-peak times, the heated water must be stored in the tank to meet consumer needs during peak demand times. Because the water heater cannot operate during peak demand times, these programs typically utilize electric storage water heaters with a larger tanks than would otherwise be required to meet the typical demand required by the consumer. The additional tank storage capacity ensures that the consumer will have enough hot water to meet their needs without the need for power during peak-demand hours.
The Department is aware of numerous ETS load shifting programs for residential water heaters in the United States. According to Great River Energy and Arrowhead Electric Cooperative, there are more than 100 electric cooperatives nationwide that have installed more than 150,000 ETS water heaters in 20 states. Information provided by utilities indicates a similar estimate, as a recent survey showed 109 cooperatives in 22 states using such programs with more than 150,000 water heaters. Additionally, the utilities noted that the number of programs nationwide is growing, with 22 additional cooperatives in 7 other states considering adopting similar programs. As noted above, these programs typically employ large electric storage water tanks capable of heating enough water during off-peak demand times to serve consumers during peak demand times when the water heater would not be powered. These tanks are ideal because they are highly insulated and make use of the heated water as a thermal storage device, storing the energy conducted to the water from the electric resistance element for later use.
DOE believes that ETS programs offer benefits to both utilities and consumers. Because ETS programs force water heating to occur during off-peak times, the energy used for heating water is from sources that are potentially less expensive and less polluting than sources that must be used during peak demand times. The utilities indicated that a survey found that 49 cooperatives use ETS programs to store energy from wind generation and 52 cooperatives
While DOE recognizes that these programs are valuable to utilities in their efforts to reduce peak demand loads, to consumers in reducing overall costs, and to the Nation in allowing for increased use of renewable energy resources and reduced emissions from fossil fuels, it is not apparent that these programs reduce energy consumption. In fact, DOE believes that the additional standby losses from storing water in a large storage tank and at an increased temperature may increase energy consumption as compared to using a smaller tank and heating the water when it is needed.
The Department is interested in receiving comment and information on utility ETS programs for residential water heaters. In particular, DOE would like to receive data and information on the penetration of such programs throughout the U.S. (i.e., what percentage of total water heaters installed are used in these programs), data on the financial benefits to consumers, and information on the energy savings (if any) or other National benefits that are achieved through the use of such programs. This is identified as issue 1 in section III.B, “Issues on Which DOE Seeks Comment.”
In response to the April 2010 Final Rule amending the energy conservation standards for water heaters, stakeholders (
DOE recognizes that the potential elimination of utility ETS programs due to the efficiency requirements in the April 2010 Final Rule for large-volume electric water heaters would have the potential to increase peak-demand load and may impact both utilities and consumers participating in such programs. If consumers who otherwise would have purchased a large-volume electric resistance tank and participated in an ETS program instead purchase a smaller size tank (
As a result of the concerns with the standards promulgated in the April 2010 Final Rule, some stakeholders have requested that DOE consider the creation of a new product class of electric water heaters for “grid-interactive water heaters.” These stakeholders proposed that such products would be defined as an electric storage water heater that has: (1) A storage tank volume greater than 55 gallons; (2) a control device capable of receiving communication from a grid operator, electric utility, or other energy services company that provides real-time control of the heating element; (3) and agreement to be enrolled in a grid operator, electric utility, or other energy services company program to provide demand response or other electric grid services; and (4) a thermostatic mixing valve if the water heater is capable of heating water greater than 120 °F. DOE is considering its legal authority to promulgate such a rule. As it does so,
DOE is interested in receiving comment on potential solutions to mitigate the concerns of utility companies described above, including the creation of a new product class for “grid-interactive storage water heater,” as proposed by the utilities. Other possible solutions may include: (1) A waiver system that would allow manufacturers to produce small quantities of electric resistance models at storage volumes above 55 gallons and sell them directly to utilities that operate such programs; (2) using multiple smaller water heaters in place of a single large water heater to satisfy the needs of consumers who participate in these programs; or (3) using large-storage-volume heat pump water heaters to satisfy the needs of consumers who participate in these programs. DOE is interested in receiving comment on the merits and drawbacks of the potential solutions identified, as well as any other potential solutions that could address this issue. This is identified as issue 2 in section III.B, “Issues on Which DOE Seeks Comment.”
DOE will accept comments, data, and information regarding this request for information until the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section below.
DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
DOE considers public participation to be a very important part of the process for developing energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of the rulemaking process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the rulemaking process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this rulemaking should contact Ms. Brenda Edwards at
Although DOE welcomes comments on any aspect of this request for information, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1. Information on the effects of utility programs designed to reduce peak energy demand by heating water only during off-peak times and storing the water for use during peak demand periods. In particular, DOE is interested in information on the penetration of residential water heater load shifting programs throughout the U.S. (
2. Information on the effects of the amended energy conservation standards for electric storage water heaters with rated storage volumes above 55 gallons on utility programs designed to reduce peak energy demand by heating water only during off-peak times and storing the water for use during peak demand periods.
3. Information on capacity or other performance-related feature(s) for residential water heaters which other water heaters do not have that are used in demand-response programs and whether such feature(s) justifies a separate standard from that which will apply to other electric water heaters with rated storage volumes above 55 gallons.
4. Information on potential solutions that would resolve the concerns of utilities that administer load shifting programs for residential water heaters that require the use of large-volume electric storage water heaters, including the potential approaches identified in this RFI.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (NPRM); extension of the comment period.
We are revising an earlier NPRM for Costruzioni Aeronautiche Tecnam srl Model P2006T airplanes. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as cracking, bulging, deformation, or oil leakage in the lower lid of the landing gear emergency accumulator, which could result in decreasing the airplane's structural integrity and jeopardizing the landing gear emergency extension in case of system failure in normal mode. We are issuing this proposed AD to require actions to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 30, 2012.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
•
•
•
For service information identified in this proposed AD, contact Costruzioni Aeronautiche TECNAM Airworthiness Office, Via Maiorise—81043 Capua (CE) Italy; telephone: +39 0823 620134; fax: +39 0823 622899; email:
You may examine the AD docket on the Internet at
Albert Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; phone: (816) 329–4119; fax: (816) 329–4090; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the
Since that NPRM (76 FR 48045, August 8, 2011) was issued, TECNAM found that the replacement part number could cause a deformation of the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2012–0043, dated March 19, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During a pre-flight inspection of a P2006T aeroplane, the lower skin of the fuselage aft tail cone was found damaged. This damage was caused by the lower lid of the LG emergency accumulator, which had detached from the LG emergency accumulator, violently hitting the lower skin of the fuselage aft tail cone and damaging the accumulator cylinder.
This condition, if not detected and corrected, could impair the aeroplane structural integrity and jeopardize the LG emergency extension in case of system failure in normal mode.
For the reasons described above, EASA issued Emergency AD 2011–0063–E to require a one-time inspection of the LG emergency accumulator cylinder for cracks, deformation or oil leakage and, depending on findings, the accomplishment of the applicable corrective actions.
After that AD was issued, Costruzioni Aeronautiche TECNAM developed a modification (MOD 2006–108) and published Service Bulletin (SB) SB–048–CS Revision 1, dated 06 July 2011, that contained the instructions for that modification. Prompted by this development, EASA issued PAD 11–070 for consultation until 16 August 2011, proposing to require incorporation of this modification on all affected aeroplanes, and to require certain post-modification repetitive inspections.
During the consultation period of PAD 11–070, an operator who had applied Costruzioni Aeronautiche TECNAM SB–048–CS on his aeroplane, reported finding abnormal deformation of the emergency accumulator, to such an extent that it would jeopardize the LG emergency extension in case of system failure in normal mode. To address this additional safety concern, Costruzioni Aeronautiche TECNAM issued SB–068–CS which contains instructions to inspect post-modification aeroplanes.
For the reasons described above, EASA AD 2011–0153–E retained the requirements of EASA AD 2011–0063–E, which was superseded, and required modification of the landing gear emergency accumulator by installation of safety rings and repetitive inspections after modification. In addition, prompted by the recent post-modification findings, EASA AD 2011–0153–E reduced the compliance time for the modification as originally proposed and required additional first-flight-of-the-day repetitive inspections for the LG emergency accumulator cylinder and replacement of the LG emergency accumulator if cracks, deformation, or oil leakage is detected.
AD Revision 2011–0153R1 was issued in order to allow Pilot-Owners to accomplish the daily pre-flight inspection of the modified LG emergency accumulator.
After that AD Revision, Costruzioni Aeronautiche TECNAM designed a new LG emergency accumulator part number 26–9–9500–000, identified as modification MOD 2006–121, and published SB–080–CS dated 02 January 2012, which contains instructions for replacement and installation of the newly designed LG emergency accumulator.
This AD, which supersedes EASA AD 2011–0153R1, requires the installation of the new landing gear emergency accumulator part number 26–9–9500–000, as well as to inspect after the installation the LG emergency accumulator and the LG retraction/extension system.
Costruzioni Aeronautiche TECNAM has issued Service Bulletin No. SB 80–CS, dated January 2, 2012. 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on the proposed AD.
We estimate that this proposed AD will affect 7 products of U.S. registry. We also estimate that it would take about 7 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 $1,300 per product.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $13,265, or $1,895 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.
(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, 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 30, 2012.
None.
This AD applies to Costruzioni Aeronautiche Tecnam srl Model P2006T airplanes, serial numbers (S/N) 001/US through S/N 88/US, certificated in any category.
Air Transport Association of America (ATA) Code 32: Landing Gear.
This proposed AD was prompted by cracking, bulging, deformation, or oil leakage in the lower lid of the landing gear emergency accumulator, which could result in decreasing the airplane's structural integrity and jeopardizing the landing gear emergency extension in case of system failure in normal mode. We are issuing this proposed AD to require actions to address the unsafe condition on these products.
Unless already done, do the following actions:
(1) Within 90 days after the effective date of this AD, replace the landing gear (LG) emergency accumulator with a new emergency accumulator part number 26–9–9500–000, following the instructions in Costruzioni Aeronautiche Tecnam Service Bulletin SB 80–CS, dated January 2, 2012.
(2) Within 300 hours time-in-service (TIS) after compliance with paragraph (f)(1) of this AD and repetitively thereafter at intervals not to exceed 300 hours TIS, inspect the LG emergency accumulator and the LG retraction/extension system for damage and leakage following the applicable instructions in Costruzioni Aeronautiche TECNAM P2006T Aircraft Maintenance Manual Chapter 5, Inspection Program.
(3) If any damage or leakage is found as a result of any inspection required in paragraph (f)(2) of this AD, before further flight, do the applicable corrective actions following the instructions in Costruzioni Aeronautiche TECNAM P2006T Aircraft Maintenance Manual, Document No. 2006/045, 2nd Edition—Revision 1, dated April 27, 2011.
The following provisions also apply to this AD:
Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2012–0043, dated March 19, 2012; Costruzioni Aeronautiche Tecnam Service Bulletin SB 80–CS, dated January 2, 2012; Costruzioni Aeronautiche TECNAM P2006T Aircraft Maintenance Manual Chapter 5, Inspection Program; and Costruzioni Aeronautiche Tecnam P2006T Maintenance Manual, 2nd Edition, Revision 1, dated April 7, 2011, for related information. For service information related to this AD, contact Costruzioni Aeronautiche TECNAM Airworthiness Office, Via Maiorise—81043 Capua (CE) Italy; telephone: +39 0823 620134; fax: +39 0823 622899; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the Bell Helicopter Textron, Inc. (BHTI) Model 205A, 205A–1, and 205B helicopters with certain starter/generator power cable assemblies (power cable assemblies). This proposed AD is prompted by the determination that the power cable assembly connector (connector) can deteriorate, causing a short in the connector that may lead to a fire. This AD would require replacing the power cable assemblies and their associated parts, and performing continuity readings. We are proposing this AD to prevent a short in the connector that may lead to a fire in the starter/generator, smoke in the cockpit that reduces visibility, and subsequent loss of helicopter control.
We must receive comments on this proposed AD by August 13, 2012.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
For service information identified in this proposed AD, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280–3391; fax (817) 280–6466; or at
Andy Shaw, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 222–5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
We propose to adopt a new AD for the BHTI Model 205A, 205A–1, and 205B helicopters with power cable assemblies, part number (P/N) 205–075–902–017 and P/N 205–075–911–007. The AD would require replacing the power cable assemblies with airworthy power cable assemblies, P/N 205–075–265–103 and 205–075–265–105S, and replacing associated parts included in the starter/generator cable kit, P/N CT205–07–94–1. After the power cable assemblies and associated parts are replaced, the AD would require performing a continuity test at the power cable connections using a multimeter. This proposal is prompted by the determination that the connector can deteriorate, causing a short in the connector P81 (J81) pins. This condition, if not corrected, could result in a fire in the starter/generator, smoke in the cockpit that could reduce visibility, and subsequent loss of structural integrity and helicopter control.
We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We have reviewed BHTI Alert Service Bulletin (ASB) No. 205–07–94, Revision A, dated December 8, 2008, for Model 205A and 205A–1 helicopters; and BHTI ASB No. 205B–08–50, dated December 8, 2008, for the Model 205B helicopter. These ASBs describe procedures for replacing the power cable assemblies and associated parts. The ASBs specify that operators can obtain a starter/generator cable kit that contains the required replacement parts.
This proposed AD would require, within six months, replacing the power cable assemblies and associated parts with airworthy parts contained in the starter/generator kit, and performing a continuity test using a multimeter. The actions would be required to be accomplished by following specified portions of the ASBs described previously.
We estimate that this proposed AD would affect 31 helicopters of U.S. registry. The proposed actions would take about 10 work-hours per helicopter to accomplish at an average labor rate of $85 per work hour. Required parts would cost about $12,654 for the power cable assembly replacement kit. Based on these figures, the cost of the proposed AD on U.S. operators would be $13,504 per helicopter, or $418,624 for the fleet.
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.
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 to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this 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 Airworthiness Directive (AD):
This AD applies to BHTI Model 205A, 205A–1, and 205B helicopters with starter/generator power cable assemblies (power cable assemblies), part numbers (P/N) 205–075–902–017 and P/N 205–075–911–007 installed, certificated in any category.
This AD was prompted by the determination that the power cable assembly connector (connector) can deteriorate, causing a short in the connector that may lead to a fire. We are issuing this AD to prevent a short in the connector that may lead to a fire in the starter/generator, smoke in the cockpit that reduces visibility, and subsequent loss of helicopter control.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within six months, replace the power cable assemblies using the parts contained in starter/generator kit P/N CT205–07–94–1, perform a continuity test, and connect wires to the starter generator as follows:
(1) For Model 205A and 205A–1 helicopters, follow the Accomplishment Instructions, paragraphs 2 through 16(c), of BHTI Alert Service Bulletin No. 205–07–94, Revision A, dated December 8, 2008.
(2) For the Model 205B helicopters, follow the Accomplishment Instructions, paragraphs 2 through 16(c), of BHTI Alert Service Bulletin No. 205B–08–50, dated December 8, 2008.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Andy Shaw, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
For service information identified in this AD, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone (817) 280–3391; fax (817) 280–6466; or at
Joint Aircraft Service Component (JASC) Code: 2497, electrical power system wiring.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to expand the vertical limits and time of designation of restricted area R–6601, Fort A.P. Hill, VA. The U. S. Army requested this action to provide the additional airspace needed to conduct training in high-angle weapons systems employment.
Comments must be received on or before July 30, 2012.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M–30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001; telephone: (202) 366–9826. You must identify FAA Docket No. FAA–2012–0561 and Airspace Docket No. 12–AEA–7, at the beginning of your comments. You may also submit comments through the Internet at
Paul Gallant, Airspace, Regulations and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA–2012–0561 and Airspace Docket No. 12–AEA–7) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2012–0561 and Airspace Docket No. 12–AEA–7.” The postcard will be date/time stamped and returned to the commenter.
Comments on environmental and land use aspects to should be directed to: Director of Environmental and Natural Resource Division, U.S. Army Garrison, Fort A.P. Hill, VA, 22427; telephone: 804–633–8223.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
Fort A.P. Hill has a continuing requirement to conduct training in the use of various high- angle weapons systems. This training cannot be contained within the current 5,000-foot MSL ceiling of restricted area R–6601. Currently, this training is conducted in a controlled firing area (CFA) situated above R–6601. However, the FAA determined that the activities no longer meet the criteria for a CFA. As a result, military units have had to cancel high-angle weapon system training. Recurring training in these events is necessary to maintain currency. This training is even more critical for units that are preparing to deploy into a theater of operations where the use of these tactics is required.
The FAA is proposing an amendment to 14 CFR part 73 to expand the vertical limits and the time of designation for restricted area R–6601, Fort A.P. Hill, VA. R–6601 currently extends from the “surface to 5,000 feet MSL,” with a time of designation of “0700 to 2300 local time daily; other times by NOTAM at least 48 hours in advance.”
The proposed new restricted airspace would extend up to 9,000 feet MSL and would consist of three sub-areas designated R–6601A, R–6601B and R–6601C. R–6601A would extend from the surface to but not including 4,500 feet MSL, instead of the current 5,000 feet MSL for R–6601. R–6601B would extend from 4,500 feet MSL to but not including 7,500 feet MSL; and R–6601C would extend from 7,500 feet MSL to 9,000 feet MSL. Subdividing the airspace in this manner would allow activation of only that portion of restricted airspace required for training while leaving the remaining airspace available for other users. In addition, a Letter of Agreement would be concluded between the using and controlling agencies stipulating that the controlling agency can recall the airspace in the event of Severe Weather Avoidance Plan (SWAP) implementation, weather diverts and emergencies.
R–6601A would have the same lateral boundaries as the original R–6601. R–6601B and R–6601C would overlie the boundaries of R–6601A, except at the northeast end where the shared R–6601B and R–6601C boundary would be moved southwesterly approximately
The proposed time of designation for R–6601A would be changed from the current “0700 to 2300 local time daily,” to “0700 to 0200 local time daily,” an increase of three hours daily. In addition, the advance NOTAM requirement for activation of R–6601A at other times would be reduced from the current 48 hours to 24 hours. The time of designation for both R–6601B and R–6601C would be “By NOTAM 24 hours in advance.”
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in SubtitleVII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would restructure the restricted airspace at Fort A.P. Hill, VA, to support essential military training activities.
This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Prohibited Areas, Restricted Areas.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. § 73.66 is amended as follows:
Boundaries. Beginning at lat. 38°04′37″ N., long. 77°18′44″ W.; then along U.S. Highway 301; to lat. 38°09′45″ N., long. 77°11′59″ W.; then along U.S. Highway 17; to lat. 38°07′50″ N., long. 77°08′29″ W.; to lat. 38°05′30″ N., long. 77°09′05″ W.; to lat. 38°04′40″ N., long. 77°10′19″ W.; to lat. 38°03′12″ N., long. 77°09′34″ W.; to lat. 38°02′22″ N., long. 77°11′39″ W.; to lat. 38°02′30″ N., long. 77°14′39″ W.; to lat. 38°01′50″ N., long. 77°16′07″ W.; to lat. 38°02′15″ N., long. 77°18′03″ W.; to lat. 38°02′40″ N., long. 77°18′59″ W.; then to the point of beginning.
Designated altitudes. Surface to but not including 4,500 feet MSL.
Time of Designation. 0700 to 0200 local time daily. Other times by NOTAM 24 hours in advance.
Controlling agency. FAA, Potomac TRACON.
Using agency. U.S. Army, Commander, Fort A.P. Hill, VA.
Boundaries. Beginning at lat. 38°04′37″ N., long. 77°18′44″ W.; then along U.S. Highway 301 to lat. 38°09′38″ N., long. 77°12′07″ W.; to lat. 38°07′09″ N., long. 77°08′40″ W.; to lat. 38°05′30″ N., long. 77°09′05″ W.; to lat. 38°04′40″
Designated altitudes. 4,500 feet MSL to but not including 7,500 feet MSL.
Time of designation. By NOTAM 24 hours in advance.
Controlling agency. FAA, Potomac TRACON.
Using agency. U.S. Army, Commander, Fort A.P. Hill, VA.
Boundaries. Beginning at lat. 38°04′37″ N., long. 77°18′44″ W.; then along U.S. Highway 301 to lat. 38°09′38″ N., long. 77°12′07″ W.; to lat. 38°07′09″ N., long. 77°08′40″ W.; to lat. 38°05′30″ N., long. 77°09′05″ W.; to lat. 38°04′40″ N., long. 77°10′19″ W.; to lat. 38°03′12″ N., long. 77°09′34″ W.; to lat. 38°02′22″ N., long. 77°11′39″ W.; to lat. 38°02′30″ N., long. 77°14′39″ W.; to lat. 38°01′50″ N., long. 77°16′07″ W.; to lat. 38°02′15″ N., long. 77°18′03″ W.; to lat. 38°02′40″ N., long. 77°18′59″ W.; then to the point of beginning.
Designated altitudes. 7,500 feet MSL to 9,000 feet MSL.
Time of designation. By NOTAM 24 hours in advance.
Controlling agency. FAA, Potomac TRACON.
Using agency. U.S. Army, Commander, Fort A.P. Hill, VA.
Bureau of Industry and Security, Department of Commerce.
Proposed rule.
This proposed rule describes how articles the President determines no longer warrant control under Category IX (Military Training Equipment and Training) of the United States Munitions List (USML) would be controlled under the Commerce Control List (CCL) in new Export Control Classification Numbers (ECCNs) 0A614, 0B614, 0D614, and 0E614.
This rule is one in a planned series of proposed rules describing how various types of articles the President determines, as part of the Administration's Export Control Reform Initiative, no longer warrant USML control, would be controlled on the CCL and by the EAR. This proposed rule is being published in conjunction with a proposed rule from the Department of State, Directorate of Defense Trade Controls, which would amend the list of articles enumerated in USML Category IX. The revisions in this rule are part of Commerce's retrospective plan under EO 13563 completed in August 2011. Commerce's full plan can be accessed at:
Comments must be received by July 30, 2012.
You may submit comments by any of the following methods:
•
• By email directly to
• By mail or delivery to Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th Street and Pennsylvania Avenue NW., Washington, DC 20230. Refer to RIN 0694–AF54.
Daniel Squire, Office of National Security and Technology Transfer Controls, Sensors and Aviation Division, tel. 202 482 3710, email
On July 15, 2011, as part of the Administration's ongoing Export Control Reform Initiative, BIS published a proposed rule (76 FR 41958) (herein “the July 15 proposed rule”) that set forth a framework for how articles the President determines, in accordance with section 38(f) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(f)), would no longer warrant control on the United States Munitions List (USML) and would be controlled on the Commerce Control List (CCL) in Supplement No. 1 to Part 774 of the Export Administration Regulations (EAR). On November 7, 2011, BIS published a rule (76 FR 68675) proposing several changes to the framework initially proposed in the July 15 rule.
Following the structure of the July 15 and November 7 proposed rules, this proposed rule describes BIS's proposal for controlling under the EAR and its CCL military training equipment and related articles now controlled by the ITAR's USML under Category IX but that would no longer be so controlled if the State Department's proposed revision to the Category were to become final. The changes described in this proposed rule and the State Department's proposed companion rule to Category IX of the USML are based on a review of Category IX by the Defense Department, which worked with the Departments of State and Commerce in preparing the proposed amendments. The review was focused on identifying the types of articles that are now enumerated in USML Category IX that are either (i) inherently military and otherwise warrant control on the USML or (ii) common to non-military training equipment applications, possess parameters or characteristics that provide a critical military or intelligence advantage to the United States, and almost exclusively available from the United States. If an article satisfied one or both of those criteria, the article remained on the USML. If an article did not satisfy either standard but was nonetheless a type of article that is, as a result of differences in form and fit, “specially designed” for military applications, it was identified in the new ECCNs proposed in this notice. The licensing requirements and other EAR-specific controls for such items described in this notice would enhance national security by permitting the U.S. Government to focus its resources on controlling, monitoring, investigating, analyzing, and, if need be, prohibiting exports and reexports of more significant items to destinations, end uses, and end users of greater concern than our NATO allies and other multi-regime partners.
Pursuant to section 38(f) of the AECA, the President shall review the USML “to determine what items, if any, no longer warrant export controls under” the AECA. The President must report the results of the review to Congress and wait 30 days before removing any such items from the USML. The report must “describe the nature of any controls to be imposed on that item under any other provision of law.” 22 U.S.C. 2778(f)(1).
In the July 15 proposed rule, BIS proposed creating a series of new ECCNs to control items that would be removed from the USML, or that are items from the Munitions List of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies List (Wassenaar Arrangement Munitions List or WAML) that are already controlled elsewhere on the CCL. The proposed rule referred to this series as the “600 series” because the third character in each of the new ECCNs would be a “6.” The first two characters of the 600 series ECCNs serve the same function as any other ECCN as described in § 738.2 of the EAR. The first character is a digit in the range 0 through 9 that identifies the Category on the CCL in which the ECCN is located. The second character is a letter in the range A through E that identifies the product group within a CCL Category. In the 600 series, the third character is the number 6. With few exceptions, the final two characters identify the WAML category that covers items that are the same or similar to items in a particular 600 series ECCN.
This proposed rule would create four such ECCNs: 0A614, 0B614, 0D614, and 0E614. ECCN 0A614 would control military training equipment and specific “parts,” “components,” and “accessories and attachments” therefor. ECCN 0B614 would control test, inspection, and production “equipment,” including related “parts,” “components,” and “accessories and attachments,” for the “production” or “development” of commodities controlled by ECCN 0A614 or articles controlled by USML Category IX. ECCN 0D614 would control “software” for the “development,” “production,” operation or maintenance of items controlled by ECCNs 0A614 or 0B614. ECCN 0E614 would control “technology” for the “development,” “production,” operation, installation, maintenance, repair or overhaul of commodities controlled by ECCNs 0A614 or 0B614 or “software” controlled by ECCN 0D614.
The revisions in this rule are part of Commerce's retrospective plan under EO 13563 completed in August 2011. Commerce's full plan can be accessed at:
BIS will publish additional
Proposed ECCN 0A614 would impose national security (NS Column 1), regional stability (RS Column 1), and anti-terrorism controls on military training “equipment” not controlled by the USML and on most “parts,” “components,” and “accessories and attachments” “specially designed” for such military training “equipment.” ECCN 0A614 also would apply the same controls to “parts,” “components,” and “accessories and attachments” for military training “equipment” controlled by Category IX of the USML unless such “parts,” “components,” or “accessories and attachments” are specifically controlled by the USML or another ECCN on the Commerce Control List. Notes to proposed ECCN 0A614 would identify how specific commodities would be classified under ECCN 0A614, including simulators for non-combat military aircraft, certain radar training units, and training “equipment” for ground military operations. ECCN 0A614.y would impose only anti-terrorism controls on specific “parts,” “components,” and “accessories and attachments” that are “specially designed” for a commodity controlled by ECCN 0A614 and not specified elsewhere in the CCL.
Proposed ECCN 0B614 would impose national security (NS Column 1), regional stability (RS Column 1), and anti-terrorism controls on test, inspection and production equipment, and on “parts,” “components,” and “accessories and attachments” therefor, that are “specially designed” for the “production” of commodities controlled by ECCN 0A614 or USML Category IX. ECCN 0B614.y would impose only anti-terrorism controls on specific “parts,” “components,” and “accessories and attachments” that are “specially designed” for a commodity controlled by ECCN 0B614 and not specified elsewhere in the CCL.
Proposed ECCN 0D614 would impose national security, (NS Column 1), regional stability (RS Column 1), and anti-terrorism (AT Column 1) controls on “software” “specially designed” for the “development,” “production,” operation or maintenance of commodities controlled by ECCNs 0A614 or 0B614 (except the .y paragraphs of these ECCNs). ECCN 0D614.y would impose only anti-terrorism controls on specific “software” that is “specially designed” for the “production,” “development,” operation or maintenance of commodities controlled by ECCNs 0A614.y or 0B614.y.
Proposed ECCN 0E614 would impose national security (NS Column 1), regional stability (RS Column 1), and anti-terrorism (AT Column 1) controls on “technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, or overhaul of commodities controlled by 0A614 or 0B614, or software controlled by 0D614 (except the .y paragraphs of these ECCNs). ECCN 0E614.y would impose only anti-terrorism controls on specific “technology” that is “required” for the “production,” “development,” operation, installation, maintenance, repair or overhaul of commodities controlled by ECCNs 0A614.y or 0B614.y or software controlled by ECCN 0D614.y.
Proposed new ECCNs 0A614, 0B614, 0D614 and 0E614 also would contain a paragraph “.y.99” that would control any item that meets all of the following criteria: (i) The item is not listed on the CCL; (ii) the item was previously determined to be subject to the EAR in an applicable commodity jurisdiction determination issued by the U.S. Department of State; and (iii) the item would otherwise be controlled under one of these 0x614 ECCNs because, for example, the item was “specially designed” for a military use.
To implement the regional stability controls that apply to the four new “600 series” ECCNs noted above, this proposed rule would revise § 742.6(a)(1) of the EAR to apply the RS Column 1 licensing policy to items classified
The July 15 proposed rule, as modified by the November 7 proposed rule, would preclude use of License Exception STA for end-items in 600 series ECCNs unless eligibility for such use was applied for and approved by BIS. This proposed rule would exempt end items classified under ECCN 0A614 (military training “equipment”) and classified under ECCN 0B614 (test, inspection and production “equipment” for military training “equipment”) from that requirement. BIS notes this proposed policy by including in the STA paragraphs of these two ECCNs a statement that reads: “Paragraph (c)(1) of License Exception STA (§ 740.20(c)(1)) may be used for items in 0A614 without the need for a determination described in § 740.20(g).” This provision would prevail over the elements of the July 15 proposed rule, as modified by the November 7 proposed rule, that indicated that “600 series” “end items” may not be exported, reexported or transferred pursuant to License Exception STA unless those end items have been identified by BIS in writing or published as an eligible item for License Exception STA in response to a License Exception STA eligibility request in accordance with § 740.20(g) of the EAR.
All comments must be in writing and submitted via one or more of the methods listed under the
As referenced above, the purpose of the July 15 proposed rule was to set up the framework to support the transfer of items from the USML to the CCL. To facilitate that goal, the July 15 proposed rule contained definitions and concepts that were meant to be applied across categories. However, as BIS undertakes rulemakings to move specific categories of items from the USML to the CCL, there may be unforeseen issues or complications that may require BIS to reexamine those definitions and concepts. The comment period for the July 15 proposed rule closed on September 13, 2011. In the November 7 proposed rule, BIS proposed several changes to those definitions and concepts. The comment period for the November 7 proposed rule closed on December 22, 2011.
To the extent that this rule's proposals affect any provision in either of those proposed rules or any provision in either of those proposed rules affect this proposed rule, BIS will consider comments on those provisions so long as they are within the context of the changes proposed in this rule.
BIS believes that the following aspects of the July 15 proposed rule and the November 7 proposed rule are among those that could affect this proposed rule:
•
• Restrictions on use of license exceptions in §§ 740.2, 740.10, 740.11, and 740.20;
• Change to national security licensing policy in § 742.4;
• Licensing policy in § 742.4(b)(1)(ii);
• Addition of 600 series items to Supplement No. 2 to Part 744—List of Items Subject to the Military End-Use Requirement of § 744.21;
• Addition of U.S. arms embargo policy regarding 600 series items set forth in § 742.4(b)(1)(ii) (national security) of the July 15 proposed rule to § 742.6(b)(1) (regional stability) of the November 7 proposed rule; and
• Definitions of terms in § 772.1.
The July 15 proposed rule would impose certain unique
Military training “equipment” and test, inspection, and production “equipment” therefor currently on the USML that would be classified under ECCNs 0A614 and 0B614 would become eligible for several license exceptions, including STA, which would be available for exports to certain government agencies of NATO and other multi-regime close allies. The exchange of information and statements required under STA is substantially less burdensome than are the license application requirements currently required under the ITAR, as discussed in more detail in the “Regulatory Requirements” section of this proposed rule. None of the military training “equipment” or test, inspection and production “equipment” therefor that would be controlled by ECCNs 0A614 or 0B614 would be subject to the provision in the July 15 proposed rule that proposes to preclude the use of License Exception STA for “600 series” end items unless approval for such use is sought from and granted by BIS. The items covered by this rule also would be eligible for the following license exceptions: LVS (limited value shipments), up to $1500; TMP (temporary exports); and RPL (servicing and parts replacement).
The Administration has stated since the beginning of the Export Control Reform Initiative that the reforms will be consistent with U.S. obligations to the multilateral export control regimes. Accordingly, the Administration will, in this and subsequent proposed rules, exercise its national discretion to implement, clarify, and, to the extent feasible, align its controls with those of the regimes. This proposed rule would align controls on the items that it adds to the CCL by placing them in new 600 series ECCNs ending in “14” to parallel Category ML14 on the Wassenaar Arrangement Munitions List (“ ‘Specialised equipment for military training' or for simulating military scenarios, simulators specially designed for training in the use of any firearm or weapon specified by ML.1 or ML.2, and specially designed components and accessories therefor”). Items in proposed ECCN 0A614 are covered by WAML Category ML 14.
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 12, 2011, 76 FR 50661 (August 16, 2011), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).
2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
As stated in the proposed rule published at 76 FR 41958 (July 15, 2011), BIS believes that the combined effect of all rules to be published adding items to the EAR that would be removed from the ITAR as part of the administration's Export Control Reform Initiative would increase the number of license applications to be submitted by approximately 16,000 annually, resulting in an increase in burden hours of 5,067 (16,000 transactions at 17 minutes each) under control number 0694–0088.
Military training “equipment,” related test, inspection, and production “equipment,” “parts,” “components,” “accessories and attachments,” “software” and “technology” formerly on the USML would become eligible for License Exception STA under this rule. As stated in the July 15 proposed rule, BIS believes that the increased use of License Exception STA resulting from combined effect of all rules to be published adding items to the EAR that would be removed from the ITAR as part of the administration's Export Control Reform Initiative would increase the burden associated with control number 0694–0137 by about 23,858 hours (20,450 transactions @ 1 hour and 10 minutes each).
BIS expects that this increase in burden would be more than offset by a reduction in burden hours associated with approved collections related to the ITAR. The largest impact of the proposed rule would likely apply to exporters of replacement parts for military training “equipment” that has been approved under the ITAR for export to allies and regime partners. Because, with few exceptions, the ITAR allows exemptions from license requirements only for exports to Canada, most exports of such parts, even when destined to NATO and other close allies, require specific State Department authorization. Under the EAR, as proposed in this notice, such parts as well as non-combat military trainers, certain radar trainers and training “equipment” for ground military operations along with related test, inspection, and production “equipment” would become eligible for export to NATO and other multi-regime allies under License Exception STA. Use of License Exception STA imposes a paperwork and compliance burden because, for example, exporters must furnish information about the item being exported to the consignee and obtain from the consignee an acknowledgement and commitment to comply with the EAR. However, the Administration understands that complying with the burdens of STA is likely less burdensome than applying for licenses. For example, under License Exception STA, a single consignee statement can apply to an unlimited number of products, need not have an expiration date, and need not be submitted to the government in advance for approval. Suppliers with regular customers can tailor a single statement and assurance to match their business relationship rather than applying repeatedly for licenses with every purchase order to supply reliable customers in countries that are close allies or members of export control regimes or both.
Even in situations in which a license would be required under the EAR, the burden is likely to be reduced compared to the license requirement of the ITAR. In particular, license applications for exports of technology controlled by ECCN 0E614 are likely to be less complex and burdensome than the authorizations required to export ITAR-controlled technology,
3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
The Bureau of Industry and Security (BIS) does not collect data on the size of entities that apply for and are issued export licenses. Although BIS is unable to estimate the exact number of small entities that would be affected by this rule, it acknowledges that this rule would affect some unknown number.
This proposed rule is part of the Administration's Export Control Reform Initiative. Under that initiative, the United States Munitions List (22 CFR part 121) (USML) would be revised to be a “positive” list,
Changing the jurisdictional status of Category IX items would reduce the burden on small entities (and other entities as well) through:
In addition, parts and components controlled under the ITAR remain under ITAR control when incorporated into foreign-made items, regardless of the significance or insignificance of the item, discouraging foreign buyers from incorporating such U.S. content. The availability of
Many exports and reexports of the Category IX articles that would be placed on the CCL, as proposed in this rule, particularly parts and components, would become eligible for license exceptions that apply to shipments to U.S. Government agencies, shipments valued at less than $1,500, parts and components being exported for use as replacement parts, temporary exports, and License Exception Strategic Trade Authorization (STA), reducing the number of licenses that exporters of these items would need. License exceptions under the EAR would allow suppliers to send routine replacement parts and low level parts to NATO and other close allies and export control regime partners for use by those governments and for use by contractors building equipment for those governments or for the U.S. Government without having to obtain export licenses. Under License Exception STA, the exporter would need to furnish information about the item being exported to the consignee and obtain a statement from the consignee that, among other things, would commit the consignee to comply with the EAR and other applicable U.S. laws. Because such statements and obligations can apply to an unlimited number of transactions and have no expiration date, they would impose a net reduction in burden on transactions that the government routinely approves through the license application process that the License Exception STA statements would replace.
Even for exports and reexports in which a license would be required, the process would be simpler and less costly under the EAR. When a USML Category IX article is moved to the CCL, the number of destinations for which a license is required would remain unchanged. However, the burden on the license applicant would decrease because the licensing procedure for CCL items is simpler and more flexible than the license procedure for USML articles.
Under the USML licensing procedure, an applicant must include a purchase order or contract with its application. There is no such requirement under the CCL licensing procedure. This difference gives the CCL applicant at least two advantages. First, the applicant has a way of determining whether the U.S. government will authorize the transaction before it enters into potentially lengthy, complex and expensive sales presentations or contract negotiations. Under the USML procedure, the applicant will need to caveat all sales presentations with a reference to the need for government approval and is more likely to have to engage in substantial effort and expense only to find that the government will reject the application. Second, a CCL license applicant need not limit its application to the quantity or value of one purchase order or contract. It may apply for a license to cover all of its expected exports or reexports to a particular consignee over the life of a license (normally two years, but may be longer if circumstances warrant a longer period), reducing the total number of licenses for which the applicant must apply.
In addition, many applicants exporting or reexporting items that this rule would transfer from the USML to the CCL would realize cost savings through the elimination of some or all registration fees currently assessed under the ITAR's licensing procedure. Currently, ITAR applicants must pay to use the ITAR licensing procedure even if they never actually are authorized to export. Registration fees for manufacturers and exporters of articles on the USML start at $2,500 per year, increase to $2,750 for organizations applying for one to ten licenses per year and further increases to $2,750 plus $250 per license application (subject to a maximum of three percent of total application value) for those who need to apply for more than ten licenses per year. There are no registration or application processing fees for applications to export items listed on the CCL. Once the Category IX items that are the subject to this rulemaking are removed from the USML and added to the CCL, entities currently applying for licenses from the Department of State would find their registration fees reduced if the number of ITAR licenses those entities need declines. If an entity's entire product line is moved to the CCL, then its ITAR registration and registration fee requirement would be eliminated.
BIS is still considering comments made in response to the July 15 rule pertaining to these proposed new
BIS is unable to determine the precise number of small entities that would be affected by this rule. Based on the facts and conclusions set forth above, BIS believes that any burdens imposed by this rule would be offset by a reduction in the number of items that would require a license, increased opportunities for use of license exceptions for exports to certain countries, simpler export license applications, reduced or eliminated registration fees and application of a de minimis threshold for foreign-made items incorporating U.S.-origin parts and components, which would reduce the incentive for foreign buyers to design out or avoid U.S.-origin content. For these reasons, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted in final form, would not have a significant economic impact on a substantial number of small entities. Accordingly, no IRFA is required, and none has been prepared.
Exports, Terrorism.
Exports, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, parts 742 and 774 of the Export Administration Regulations (15 CFR parts 730–774) are proposed to be amended as follows:
1. The authority citation for 15 CFR part 742 continues to read as follows:
50 U.S.C. app. 2401
2. Section 742.6 is amended by revising paragraph (a)(1) to read as follows:
(a)
(1)
3. The authority citation for 15 CFR part 774 continues to read as follows:
50 U.S.C. app. 2401
4. In Supplement No. 1 to Part 774, the Commerce Control List, add, between the entries for Export Control Classification Numbers 0A018 and 0A918, a new entry for Export Control Classification Number 0A614 to read as follows:
a. “Equipment” “specially designed” for military training that is not enumerated in USML Category IX.
This entry includes operational flight trainers, radar target trainers, flight simulators for aircraft classified under ECCN 9A610.a, human-rated centrifuges, radar trainers for radars classified under ECCN 3A611, instrument flight trainers for military aircraft, navigation trainers for military items, target equipment, armament trainers, military pilotless aircraft trainers, mobile training units and training “equipment” for ground military operations.
This entry does not apply to “equipment” “specially designed” for training in the use of hunting or sporting weapons.
b. through w. [Reserved]
x. “Parts,” “components,” and “accessories and attachments” that are “specially designed” for a commodity controlled by this entry or an article enumerated in USML Category IX, and not specified elsewhere in the CCL or the USML.
Forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by material composition, geometry, or function as commodities controlled by ECCN 0A614.x are controlled by ECCN 0A614.x.
y. Specific “parts,” “components,” “accessories and attachments” “specially designed” for a commodity subject to control in this ECCN and not elsewhere specified in the CCL, as follows:
y.1 to y.98 [Reserved]
y.99. Commodities not identified on the CCL that (i) have been determined, in an applicable commodity jurisdiction determination issued by the U.S. Department of State, to be subject to the EAR and (ii) would otherwise be controlled elsewhere in ECCN 0A614.
5. In Supplement No. 1 to Part 774, the Commerce Control List, add, between the entries for Export Control Classification Numbers 0B006 and 0B968, a new entry for Export Control Classification Number 0B614 to read as follows:
a. Test, inspection, and other production “equipment” “specially designed” for the “production” of commodities controlled by ECCN 0A614 or articles enumerated in USML Category IX.
b. through .w [Reserved]
x. “Parts,” “components,” and “accessories and attachments” that are “specially designed” for a commodity controlled by ECCN 0B614.
Forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by material composition, geometry, or function as commodities controlled by ECCN 0B614.x are controlled by ECCN 0B614.x.
y. Specific “parts,” “components,” and “accessories and attachments” “specially designed” for a commodity subject to control in this ECCN and not elsewhere specified in the CCL, as follows:
y.1 to y.98 [Reserved]
y.99. Commodities not identified elsewhere on the CCL that (i) have been determined, in an applicable commodity jurisdiction determination issued by the U.S. Department of State, to be subject to the EAR and (ii) would otherwise be controlled elsewhere in this entry.
6. In Supplement No. 1 to Part 774, the Commerce Control List, add, between the entries for Export Control Classification Number 0C201 and before the header that reads “D. Software” a new entry for Export Control Classification Number 0D614 to read as follows:
a. “Software” (other than “software” controlled in paragraph .y of this entry) “specially designed” for the “development,” “production,” operation or maintenance of commodities controlled by ECCNs 0A614 (except 0A614.y) or 0B614 (except 0B614.y).
b. to x. [RESERVED]
y. Specific “software” “specially designed” for the “production,” “development,” or operation or maintenance of commodities controlled by ECCNs 0A614 or 0B614, as follows:
y.1. Specific “software” “specially designed” for the “production,” “development,” operation or maintenance of commodities controlled by ECCNs 0A614.y or 0B614.y.
y.2 through y.98 [RESERVED]
y.99. “Software” that would otherwise be controlled elsewhere in this entry but that (i) has been determined to be subject to the EAR in a commodity jurisdiction determination issued by the U.S. Department of State and (ii) is not otherwise identified elsewhere on the CCL.
7. In Supplement No. 1 to Part 774, the Commerce Control List, add, between the entries for Export Control Classification Numbers 0E018 and 0E918, a new entry for Export Control Classification Number 0E614 to read as follows:
a. “Technology” (other than “technology” controlled by paragraph .y of this entry) “required” for the “development,” “production,” operation, installation, maintenance, repair overhaul, or refurbishing of commodities or “software” controlled by ECCNs 0A614 (except 0A614.y), 0B614 (except 0B614.y), or 0D614 (except 0D614.y).
b. through x. [RESERVED]
y. Specific “technology” “required” for the “production,” “development,” operation, installation, maintenance, repair, or overhaul of commodities controlled by ECCNs 0A614.y or 0B614.y, or “software” controlled by ECCN 0D614.y, as follows:
y.1. Specific “technology” “required” for the “production,” “development,” operation, installation, maintenance, repair or overhaul of commodities controlled by ECCNs 0A614.y or 0B614.y or “software” controlled by ECCN 0D614.y.
y.2. through y.98 [RESERVED]
y.99. “Technology” that would otherwise be controlled elsewhere in this entry but that (i) has been determined to be subject to the EAR in a commodity jurisdiction determination issued by the U.S. Department of State and (ii) is not otherwise identified elsewhere on the CCL.
Food and Drug Administration, HHS.
Notice of petition.
The Food and Drug Administration (FDA) is announcing that Gruma Corporation, Spina Bifida Association, March of Dimes Foundation, American Academy of Pediatrics, Royal DSM N.V., and National Council of La Raza have jointly filed a petition proposing that the food additive regulations be amended to provide for the safe use of folic acid in corn masa flour.
Judith Kidwell, Center for Food Safety and Applied Nutrition (HFS–265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740–3835, 240–402–1071.
Under the Federal Food, Drug, and Cosmetic Act (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), notice is given that a food additive petition (FAP 2A4796) has been jointly filed by Gruma Corporation, Spina Bifida Association, March of Dimes Foundation, American Academy of Pediatrics, Royal DSM N.V., and National Council of La Raza, c/o Alston & Bird, LLP, 950 F Street NW., Washington, DC 20004–1404. The petition proposes to amend the food additive regulations in § 172.345 Folic acid (folacin) (21 CFR 172.345) to provide for the safe use of folic acid in corn masa flour.
The Agency has determined under 21 CFR 25.32(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
Department of State.
Proposed rule.
As part of the President's Export Control Reform effort, the Department of State proposes to amend the International Traffic in Arms Regulations (ITAR) to revise Category IX (military training equipment) of the U.S. Munitions List (USML) to describe more precisely the materials warranting control on the USML. The revisions to this rule are part of the Department of State's retrospective plan under E.O. 13563 completed on August 17, 2011.
The Department of State will accept comments on this proposed rule until July 30, 2012.
Interested parties may submit comments within 45 days of the date of publication by one of the following methods:
•
•
Comments received after that date will be considered if feasible, but consideration cannot be assured. Those submitting comments should not include any personally identifying information they do not desire to be made public or information for which a claim of confidentiality is asserted because those comments and/or transmittal emails will be made available for public inspection and copying after the close of the comment period via the Directorate of Defense Trade Controls Web site at
Ms. Candace M. J. Goforth, Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663–2792; email
The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120–130). The items subject to the jurisdiction of the ITAR,
The Departments of State and Commerce described in their respective Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the Administration's plan to make the USML and the CCL positive, tiered, and aligned so that eventually they can be combined into a single control list (see “Commerce Control List: Revising Descriptions of Items and Foreign Availability,” 75 FR 76664 (December 9, 2010) and “Revisions to the United States Munitions List,” 75 FR 76935 (December 10, 2010)). The notices also called for the establishment of a “bright line” between the USML and the CCL to reduce government and industry uncertainty regarding export jurisdiction by clarifying whether particular items are subject to the jurisdiction of the ITAR or the EAR. While these remain the Administration's ultimate Export Control Reform objectives, their concurrent implementation would be problematic in the near term. In order to more quickly reach the national security objectives of greater interoperability with U.S. allies, enhancing the defense industrial base, and permitting the U.S. Government to focus its resources on controlling and monitoring the export and reexport of more significant items to destinations, end-uses, and end-users of greater concern than NATO allies and other multi-regime partners, the Administration has decided, as an interim step, to propose and implement revisions to both the USML and the CCL that are more positive, but not yet tiered.
Specifically, based in part on a review of the comments received in response to the December 2010 notices, the Administration has determined that fundamentally altering the structure of the USML by tiering and aligning it on a category-by-category basis would significantly disrupt the export control compliance systems and procedures of exporters and reexporters. For example, until the entire USML was revised and became final, some USML categories would follow the legacy numbering and control structures while the newly revised categories would follow a completely different numbering structure. In order to allow for the national security benefits to flow from re-aligning the jurisdictional status of defense articles that no longer warrant control on the USML on a category-by-category basis while minimizing the impact on exporters' internal control and jurisdictional and classification marking systems, the Administration plans to proceed with building positive lists now and afterward return to structural changes.
This proposed rule would revise USML Category IX, covering military training equipment, to further the national security objectives set forth above and to more accurately describe the articles within the category in order to establish a “bright line” between the USML and the CCL for the control of these articles.
The title of the category is changed to indicate that it covers training equipment only. Training on a defense article would be a defense service covered under the category in which the defense article is enumerated.
Paragraph (a) is to list all the types of training equipment covered in the category.
Paragraph (b) is also revised to more specifically describe the items (simulators) controlled therein. Radar target generators are to be controlled in Category XI(a). Infrared scene generators are to be controlled in Category XII(c).
Tooling and production equipment, currently controlled in paragraph (c), are to be covered on the CCL in proposed ECCN 0B614.
The most significant aspect of this more positive, but not yet tiered, proposed USML category is that it does not contain controls on all generic parts, components, accessories, and attachments (currently captured in paragraph (d)) that are in any way specifically designed or modified for a defense article, regardless of their significance to maintaining a military advantage for the United States. These items are to be subject to the new 600 series controls in Category 0 of the CCL, to be published separately by the Department of Commerce. Parts, components, accessories, or attachments of a simulator that are common to the simulated system or end-item are to be controlled under the same USML Category or CCL ECCN as the parts, components, accessories, and attachments of the simulated system or end-item.
Although one of the goals of the export control reform initiative is to describe USML controls without using design intent criteria, a few of the controls in the proposed revision nonetheless use the term “specially designed.” It is, therefore, necessary for the Department to define the term. Two
The Department first provided a draft definition for “specially designed” in the December 2010 ANPRM (75 FR 76935) and noted the term would be used minimally in the USML, and then only to remain consistent with the Wassenaar Arrangement or other multilateral regime obligation or when no other reasonable option exists to describe the control without using the term. The draft definition provided at that time is as follows: “For the purposes of this Subchapter, the term `specially designed' means that the end-item, equipment, accessory, attachment, system, component, or part (see ITAR § 121.8) has properties that (i) distinguish it for certain predetermined purposes, (ii) are directly related to the functioning of a defense article, and (iii) are used exclusively or predominantly in or with a defense article identified on the USML.”
The Department of Commerce subsequently published on July 15, 2011, for public comment, the Administration's proposed definition of “specially designed” that would be common to the CCL and the USML. The public provided more than 40 comments on that proposed definition on or before the September 13 deadline for comments. The Departments of State, Commerce, and Defense are now reviewing those comments and related issues, and the Departments of State and Commerce plan to publish for public comment another proposed rule on a definition of “specially designed” that would be common to the USML and the CCL. In the interim, and for the purpose of evaluation of this proposed rule, reviewers should use the definition provided in the December ANPRM.
As the U.S. Government works through the proposed revisions to the USML, some solutions have been adopted that were determined to be the best of available options. With the thought that multiple perspectives would be beneficial to the USML revision process, the Department welcomes the assistance of users of the lists and requests input on the following:
(1) A key goal of this rulemaking is to ensure the USML and the CCL together control all the items that meet Wassenaar Arrangement commitments embodied in Munitions List Category 14 (WA–ML14). To that end, the public is asked to identify any potential lack of coverage brought about by the proposed rules for Category IX contained in this notice and the new Category 0 ECCNs published separately by the Department of Commerce when reviewed together.
(2) The key goal of this rulemaking is to establish a “bright line” between the USML and the CCL for the control of these articles. The public is asked to provide specific examples of articles whose jurisdiction would be in doubt based on this revision.
The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from § 553 (Rulemaking) and § 554 (Adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule with a 45-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function. As noted above, and also without prejudice to the Department position that this rulemaking is not subject to the APA, the Department previously published a related Advance Notice of Proposed Rulemaking (RIN 1400–AC78), and accepted comments for 60 days.
Since the Department is of the opinion that this rule is exempt from the rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.
This proposed amendment does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This proposed amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.
This proposed amendment will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this proposed amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this proposed amendment.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).
The Department of State has reviewed the proposed amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, Executive Order 13175 does not apply to this rulemaking.
Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Arms and munitions, Exports.
Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 121 is proposed to be amended as follows:
1. The authority citation for part 121 continues to read as follows:
Secs. 2, 38, and 71, Pub. L. 90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105–261, 112 Stat. 1920.
2. Section 121.1 is amended by revising U.S. Munitions List Category IX to read as follows:
(a) Training equipment, as follows:
(1) Ground, surface, submersible, space, or towed airborne targets that:
(i) Have an infrared, radar, acoustic, magnetic, or thermal signature that mimic a specific defense article, other item, or person; or
(ii) Are instrumented to provide hit/miss performance information;
Target drones are controlled in Category VIII(a).
(2) Devices that are mockups of articles enumerated in this subchapter used for maintenance training or disposal training for ordnance enumerated in this subchapter;
(3) Air combat maneuvering instrumentation and ground stations therefor;
(4) Physiological flight trainers for fighter aircraft or attack helicopters;
(5) Radar trainers “specially designed” for training on radars controlled by Category XI;
(6) Training devices “specially designed” to be attached to a crew station, mission system, or weapon of an article controlled in this subchapter;
This paragraph includes stimulators that are built-in or add-on devices that cause the actual equipment to act as a trainer.
(7) Anti-submarine warfare trainers;
(8) Missile launch trainers;
(9) Any training device that:
(i) Is classified;
(ii) Contains classified software;
(iii) Is manufactured using classified production data; or
(iv) Is being developed using classified information.
“Classified” means classified pursuant to Executive Order 13526, or predecessor order, and a security classification guide developed pursuant thereto or equivalent, or to the corresponding classification rules of another government.
Training equipment does not include combat games without item signatures or tactics, techniques, and procedures covered by this subchapter.
(b) Simulators, as follows:
(1) System specific simulators that replicate the operation of an individual crew station, a mission system, or a weapon of an end-item that is controlled in this subchapter;
(2) [Reserved]
(3) [Reserved]
(4) Software and associated databases not elsewhere enumerated in this subchapter that can be used to simulate the following:
(i) Trainers specified by this category;
(ii) Battle management;
(iii) Military test scenarios/models; or
(iv) Effects of weapons enumerated in this subchapter;
(5) Simulators that:
(i) Are classified;
(ii) Contain classified software;
(iii) Are manufactured using classified production data; or
(iv) Are being developed using classified information.
“Classified” means classified pursuant to Executive Order 13526, or predecessor order, and a security classification guide developed pursuant thereto or equivalent, or to the corresponding classification rules of another government.
(c) [Reserved]
(d) [Reserved]
(e) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (b) of this category.
(f) [Reserved]
Parts, components, accessories, or attachments of a simulator that are common to the simulated system or end-item are controlled under the same USML Category or CCL ECCN as the parts, components, accessories, and attachments of the simulated system or end-item.
Notice of Proposed Rulemaking.
The Coast Guard proposes a Special Local Regulation for the “Swim Harbor Island” swim event, to be held on the waters adjacent to and surrounding Harbor Island in Wrightsville Beach, North Carolina. This Special Local Regulation is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic on the Atlantic Intracoastal Waterway within 550 yards north and south of the U.S. 74/76 Bascule Bridge crossing the Atlantic Intracoastal Waterway, mile 283.1, at Wrightsville Beach, North Carolina, during the swim event.
Comments and related material must be received by the Coast Guard on or before July 13, 2012.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, call or email BOSN3 Joseph M. Edge, Coast Guard Sector North Carolina, Coast Guard; telephone 252–247–4525, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under
On September 29, 2012 from 7 a.m. to 11 a.m., Without Limits Coaching will sponsor “Swim Harbor Island” on the waters adjacent to and surrounding Harbor Island in Wrightsville Beach, North Carolina. The swim event will consist of up to 200 swimmers swimming a 3.5 mile course around Harbor Island in Wrightsville Beach, North Carolina. To provide for the safety of participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during this event.
The Coast Guard is proposing establishing a safety zone on the navigable waters of the Atlantic Intracoastal Waterway 550 yards north and south of the U.S. 74/76 Bascule Bridge, mile 283.1, latitude 34°13′06″
In an effort to enhance safety of event participants the channel in the vicinity of the U.S. 74/76 Bascule Bridge at Wrightsville Beach, North Carolina will remain closed during the event on September 29, 2012 from 7 a.m. to 11 a.m. The Coast Guard will temporarily restrict access to this section of Atlantic Intracoastal Waterway during the event. In the interest of participant safety, general navigation within the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Coast Guard Captain of the Port or his representative, no person or vessel may enter or remain in the regulated area.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will restrict access to the area, the effect of this rule will not be significant because the regulated area will be in effect for a limited time, from 7 a.m. to 11 a.m., on September 29, 2012. The Coast Guard will provide advance notification via maritime advisories so mariners can adjust their plans accordingly. The regulated area will apply only to the section of Atlantic Intracoastal Waterway in the immediate vicinity of U.S. 74/76 Bascule Bridge at Wrightsville Beach, North Carolina. Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz).
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will affect the following entities, some of which may be small entities: The owners or operators of recreational vessels intending to transit the specified portion of Atlantic Intracoastal Waterway from 7 a.m. to 11 a.m. on September 29, 2012.
This proposed rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule will only be in effect for four hours from 7 a.m. to 11 a.m. The regulated area applies only to the section of Atlantic Intracoastal Waterway in the vicinity of the U.S. 74/76 Bascule Bridge at Wrightsville Beach, North Carolina. Vessel traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the swim course. The Patrol Commander will allow non-participating vessels to transit the event area once all swimmers are safely clear of navigation channels and vessel traffic areas. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation,
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. This special local regulation is necessary to provide for the safety of the general public and event participants from potential hazards associated with movement of vessels near the event area. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2–1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. Add a temporary § 100.35T05–0482 to read as follows:
(a)
(b)
(2)
(3)
(4)
(c)
(2) The Coast Guard Patrol Commander may terminate the event, or the operation of any support vessel participating in the event, at any time it is deemed necessary for the protection of life or property. The Coast Guard may be assisted in the patrol and enforcement of the regulated area by other Federal, State, and local agencies.
(3) Vessel traffic, not involved with the event, may be allowed to transit the regulated area with the permission of the Patrol Commander. Vessels that desire passage through the regulated area shall contact the Coast Guard Patrol Commander on VHF–FM marine band radio for direction. Only participants and official patrol vessels are allowed to enter the regulated area.
(4) All Coast Guard vessels enforcing the regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz) and channel 22 (157.1 MHz). The Coast Guard will issue marine information broadcast on VHF–FM marine band radio announcing specific event date and times.
(d)
Forest Service, USDA.
Notice of proposed rule; request for public comment.
The United States Department of Agriculture, Forest Service, is proposing to supplement its National Environmental Policy Act (NEPA) regulations (36 CFR Part 220) with three new categorical exclusions for activities that restore lands negatively impacted by water control structures, natural and human caused events, and roads and trails. These categorical exclusions will allow the Forest Service to more efficiently analyze and document the potential environmental effects of soil and water restoration projects that are intended to restore the flow of waters into natural channels and floodplains by removing water control structures, such as dikes, ditches, culverts and pipes; restore lands and habitat to pre-disturbance conditions, to the extent practicable, by removing debris, sediment, and hazardous conditions following natural or human-caused events; and restore lands occupied by roads and trails to natural conditions.
The proposed road and trail restoration category would be used for restoring lands impacted by non-system roads and trails that are no longer needed and no longer maintained. This category would not be used to make access decisions about which roads and trails are to be designated for public use.
Comments must be received in writing on or before August 13, 2012.
Submit comments online at
All comments, including names and addresses, when provided, will be placed in the record and will be available for public inspection and copying.
Peter Gaulke, Ecosystem Management Coordination Staff, (202) 205–1521. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at (800) 877–8339 between 8:00 a.m. and 8:00 p.m. eastern standard time, Monday through Friday.
In 2009, Secretary of Agriculture Tom Vilsack called for restoring forestlands to protect water resources, the climate, and terrestrial and aquatic ecosystems. The Forest Service spends significant resources on NEPA analyses and documentation for a variety of land management projects. The Agency believes that it is possible to improve the efficiency of the NEPA process to speed the pace of forest and watershed restoration, while not sacrificing sound environmental analysis.
For decades, the Forest Service has implemented terrestrial and aquatic restoration projects. Some of these projects encompassed actions that promoted restoration activities related to floodplains, wetlands and watersheds, or past natural or human-caused damage. The Forest Service has found that under normal circumstances the environmental effects of some restoration activities have not been individually or cumulatively significant. The Forest Service's experience predicting and evaluating the environmental effects of the category of activities outlined in this proposed rule has led the Agency to propose supplementing its NEPA regulations by adding three new categorical exclusions for activities that achieve soil and water restoration objectives.
The Forest Service's proposed categorically excluded actions promote hydrologic, aquatic, and landscape restoration activities. All three categorical exclusions involve activities that are intended to maintain or restore ecological functions and better align the Agency's regulations, specifically its categorical exclusions, with the Agency's current activities and experiences related to restoration.
The restoration of lands occupied by unmaintained non-system roads and trails (National Forest System Roads and Trails are defined at 36 CFR 212.1) is important to promote hydrologic, aquatic, and watershed restoration. Activities that restore lands occupied by a road or trail may include reestablishing former drainage patterns, stabilizing slopes, restoring vegetation, blocking the entrance to the road, installing waterbars, removing culverts, removing unstable fills, pulling back road shoulders, and completely eliminating the road bed by restoring natural contours and slopes. The Forest Service experience is that the majority of issues associated with road and trail decommissioning arise from the initial decision whether to close a road or trail to public use rather than from implementing individual restoration projects.
The Forest Service believes it is appropriate to establish soil and water restoration categorical exclusions based on NEPA implementing regulations at 40 CFR § 1500.4(p) and 1500.5(k), which identify a categorical exclusion as a means to reduce paperwork and delays in project implementation, and the Agency's abundance of information showing that the majority of these identified restoration actions have no significant impacts.
Pursuant to CEQ's implementing regulations at 40 CFR § 1507.3 and the November 23, 2010, CEQ guidance memorandum on “Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act,” the Forest Service gathered information supporting establishment of these three categorical exclusions using the following four methods:
(1) The Forest Service reviewed EAs that implemented actions that were entirely or partially covered under one of the proposed categorical exclusions. This review showed that these projects did not individually or cumulatively result in a significant effect on the human environment.
(2) The Forest Service consulted with professional staff and experts who have experience leading interdisciplinary teams and conducting environmental analysis of project proposals, implementing restoration activities, guiding the development and execution of restoration programs, and studying the techniques, effects, and outcomes associated with soil and water restoration activities. The experience of these professional staff included persons from every Forest Service and nearly every geographic region across the United States, including Alaska.
(3) The Forest Service also studied peer-reviewed scientific analyses, research papers, and monitoring reports about activities identified under these categorical exclusions.
(4) Finally, the Forest Service reviewed categorical exclusions adopted by eight other federal agencies that cover activities that are comparable in size and scope and that are implemented under similar natural resource conditions with similar environmental impacts to those covered under the categories in this proposed rule.
Based on this review, the Forest Service finds that the proposed categorical exclusions would not individually or cumulatively have significant effects on the human environment. The Agency's finding is
Actions relying on one of these categorical exclusions remain subject to agency requirements to conduct scoping and require a determination that there are not extraordinary circumstances that would otherwise require documentation in an EA or EIS. These proposed categorical exclusions would require a project or case file and decision memo, including, in part, a rationale for using the categorical exclusion and a finding that extraordinary circumstances do not require documentation in an EA or EIS.
The intent of the proposed rule is to increase administrative efficiency in connection with conducting important restoration activities on National Forest System lands while assuring that no significant environmental effects occur. The proposed amendment of Forest Service NEPA Regulations (36 CFR 220.6) concerns NEPA documentation for certain types of soil and water restoration activities. The Council on Environmental Quality does not direct agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the CEQ regulations for implementing NEPA. Agencies are required to adopt NEPA procedures that establish specific criteria for, and identification of, three classes of actions: Those that require preparation of an EIS; those that require preparation of an EA; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). Categorical exclusions are one part of those agency procedures, and therefore establishing categorical exclusions does not require preparation of a NEPA analysis or document. Agency NEPA procedures are internal procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The determination that establishing categorical exclusions does not require NEPA analysis and documentation has been upheld in
This proposed rule has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. The Office of Management and Budget has determined that this is not a significant rule. The proposed rule would not have an annual effect of $100 million or more on the economy, nor would it adversely affect productivity, competition, jobs, the environment, public health or safety, or state or local government. This proposed rule would not interfere with an action taken or planned by another agency, nor would it raise new legal or policy issues. Finally, this proposed rule would not alter the budgetary impacts of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients of such programs.
This proposed rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602
The Agency has considered this proposed rule under the requirements of Executive Order 13132, “Federalism.” The Agency has concluded that the proposed rule conforms with the federalism principles set out in this Executive Order; would not impose any compliance costs on the states; and would not have substantial direct effects on the states or the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no further assessment of federalism implications is necessary.
Pursuant to Executive Order 13175 of November 6, 2000, “Consultation and Coordination with Indian Tribal Governments,” the Agency has assessed the impact of this proposed rule on Indian Tribal governments and has determined that it would not significantly or uniquely affect communities of Indian Tribal governments. The proposed rule deals with requirements for NEPA analysis and has no direct effect on occupancy and use of National Forest System lands. The Agency has also determined that this proposed rule would not impose substantial direct compliance costs on Indian Tribal governments or preempt Tribal law. Therefore, it has been determined that this proposed rule would not have Tribal implications requiring advance consultation with Indian Tribes.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights.” The Agency has determined that the proposed rule would not pose the risk of a taking of protected private property.
The Agency has reviewed this proposed rule under Executive Order 12988 of February 7, 1996, “Civil Justice Reform.” After adoption of this proposed rule, (1) all state and local laws and regulations that conflict with this rule or that would impede full implementation of this rule would be preempted; (2) no retroactive effect would be given to this proposed rule; and (3) the proposed rule would not require the use of administrative proceedings before parties could file suit in court challenging its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538), which the President signed into law on March 22, 1995, the Agency has assessed the effects of this proposed rule on state, local, and Tribal governments and the private sector. This proposed rule would not compel the expenditure of $100 million or more by any state, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.
The Agency has reviewed this proposed rule under Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” The Agency has determined that this proposed rule does not constitute a significant energy action as defined in the Executive Order.
This proposed rule does not contain any additional record keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use, and therefore, imposes no additional paperwork burden on the public. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Administrative practices and procedures, Environmental impact statements, Environmental protection, National forests, Science and technology.
For the reasons set out in the preamble, the Forest Service proposes to amend part 220 of title 36 of the Code of Federal Regulations as follows:
1. The authority citation for 36 CFR part 220 continues to read as follows:
42 U.S.C. 4321
2. In § 220.6, add paragraphs (e)(18), (19), and (20) categorical exclusion categories read as follows:
(e) * * *
(18) Restoring wetlands, streams, and riparian areas by removing, replacing, or modifying water control structures such as, but not limited to, dams, levees, dikes, ditches, culverts, pipes, valves, gates, and fencing, to allow waters to flow into natural channels and floodplains and restore natural flow regimes to the extent practicable. Examples include but are not limited to:
(i) Removing, replacing, or repairing existing water control structures that are no longer functioning properly; only minimal dredging, excavation, or placement of fill is required and do not involve releasing hazardous substances;
(ii) Installing a newly designed culvert that replaces an existing inadequate culvert to improve aquatic organism passage or prevent resource or property damage where the road or trail maintenance level does not change; and
(iii) Removing a culvert and installing a bridge to improve aquatic and/or terrestrial organism passage or prevent resource or property damage where the road or trail maintenance level does not change.
(19) Removing debris and sediment following natural or human-caused disturbance events (such as floods, hurricanes, tornados, mechanical/engineering failures, etc.) to restore uplands, wetlands, or riparian systems to pre-disturbance conditions, to the extent practicable, such that site conditions will not impede or negatively alter natural processes. Examples include but are not limited to:
(i) Removing deposited debris and sediment resulting from natural or human-caused disturbance events from impacted sites using manual or mechanized equipment where minimal excavation is required;
(ii) Clean-up and removal of infrastructure debris, such as, benches, tables, outhouses, concrete, culverts, and asphalt following a flood event from a stream reach and/or adjacent wetland area;
(iii) Removal of downed or damaged trees that limit or reduce public access, result in potential risks to public safety, or where removal is needed to restore wildlife, or protect infrastructure; and
(iv) Stabilizing stream banks and associated stabilization structures to reduce erosion through bioengineering techniques following a natural or human-caused event, including the utilization of living and nonliving plant materials in combination with natural and synthetic support materials, such as rocks, riprap, geo-textiles, for slope stabilization, erosion reduction, and vegetative establishment and establishment of appropriate plant communities (bank shaping and planting, brush mattresses, log, root wad, and boulder stabilization methods).
(20) Activities that restore, rehabilitate, or stabilize lands occupied by non-National Forest System roads and trails to a more natural condition that may include removing, replacing, or modifying drainage structures and ditches, reestablishing vegetation, reshaping natural contours and slopes, reestablishing drainage-ways, or other activities that would restore site productivity and reduce environmental impacts. Examples include but are not limited to:
(i) Decommissioning of anon-system road to a more natural state by restoring natural contours and removing construction fills, revegetating the roadbed and removing ditches and culverts;
(ii) Restoring a non-system trail by reestablishing natural drainage patterns, stabilizing slopes, reestablishing vegetation, and installing water bars;
(iii) Completely eliminating the roadbed of unauthorized roads by loosening compacted soils, removing culverts, reestablishing natural drainage patterns, restoring natural contours, and restoring vegetation; and
(iv) Installing boulders, logs, and berms on a non-system trail segment to promote naturally regenerated grass, shrub, and tree growth.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a revision to the applicable minor New Source Review (NSR) State Implementation Plan (SIP) for New Mexico submitted by the state of New Mexico on April 25, 2005, which incorporates a new regulation related to minor NSR preconstruction permitting for particulate matter emissions from cotton ginning facilities. The submitted Cotton Gin regulation provides an alternative preconstruction process for cotton ginning facilities that will emit no more than 50 tons per year of particulate matter. The new regulation prescribes, at a minimum, best technical control equipment standards, opacity limitations, and fugitive dust management plan requirements to minimize particulate matter emissions and establishes a minimum setback distance from the gin to the property
Comments must be received on or before July 13, 2012.
Comments may be mailed to Ms. Ashley Mohr, Air Permits Section (6PD–R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202–2733. Comments may also be submitted electronically of through hand delivery/courier by following the detailed instructions in the Addresses section of the direct final rule located in the rules section of this
Ms. Ashley Mohr, Air Permits Section (6PD–R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202–2733, telephone (214) 665–7289; fax number (214) 665–6762; email address
In the final rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
For additional information, see the direct final rule which is located in the rules section of this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from the manufacture of polystyrene, polyethylene, and polypropylene products. We are approving a local rule that regulates these emission sources under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.
Any comments must arrive by July 13, 2012.
Submit comments, identified by docket number EPA–R09–OAR–2011–0546, by one of the following methods:
1.
2.
3.
Rynda Kay, EPA Region IX, (415) 947–4118,
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rule addressed by this proposal with the date that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On March 13, 2012, EPA determined that the submittal for SJVUAPCD Rule 4682 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
We approved an earlier version of Rule 4682 into the SIP on June 13, 1995 (60 FR 31086). The SJVUAPCD adopted revisions to the SIP-approved version on September 20, 2007 and CARB submitted them to us on March 7, 2008. On July 15, 2011 (76 FR 41745), we proposed a limited approval and limited disapproval of the 2007 version of SJVUAPCD Rule 4682. However, the 2011 version of the rule superseded the 2007 version, and we do not intend to finalize action on the 2007 version.
VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. Rule 4682 was designed to reduce emissions of VOCs from the manufacturing, processing and storage of products composed of polystyrene, polyethylene, and polypropylene. EPA's technical support document (TSD) has more information about this rule.
Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see sections 182(a)(2) and (b)(2)), and must not relax existing requirements (see sections 110(l) and 193). The SJVUAPCD regulates an ozone nonattainment area (see 40 CFR part 81), so Rule 4682 must fulfill RACT.
Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:
1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).
2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
3. “Averaging Times for Compliance With VOC Emission Limits—SIP Revision Policy,” memorandum from John R. O'Connor, OAQPS, dated January 20, 1984.
On July 15, 2011 (76 FR 41745), we proposed a limited approval and limited disapproval of a previous version of SJVUAPCD Rule 4682. We determined that the rule largely fulfills the relevant criteria summarized above. The rule improves the SIP by clarifying language, adding definitions, and adding control requirements. The rule also improves the SIP by adding requirements for compliance plans, record keeping, and testing. The rule is generally clear and contains appropriate monitoring, reporting, and recordkeeping requirements to ensure that emission limits are adequately enforceable. We found our approval of the submittal would comply with CAA section 110(l), because the proposed SIP revision would not interfere with the on-going process for ensuring that requirements for RFP and attainment of the National Ambient Air Quality Standards are met, and the submitted SIP revision is at least as stringent as the rule previously approved into the SIP. While we found the rule largely fulfilled relevant Clean Air Act 110 and Part D requirements, we identified one deficiency.
The rule established an emission limit of 2.4 pounds of VOC per 100 pounds of total material processed, as averaged on a monthly basis. EPA generally cannot approve compliance periods exceeding 24 hours unless specific criteria are met, including a clear explanation of why the application of RACT is not economically or technically feasible on a daily basis. The District revised the rule and added supporting documentation to address the deficiency.
The District identified two major processes covered by Rule 4682, extrusion foam and expanded polystyrene molding production, and split the rule requirements by process type. Both processes are still subject to an emission limit of 2.4 pounds of VOC per 100 pounds of total material processed, calculated over a monthly period. Expandable polystyrene molding facilities, however, are now subject to an additional emission limit of 3.4 pounds of VOC per 100 pounds of total material processed, calculated daily. Based on the evaluation of the revision, we propose that Rule 4682 is consistent with RACT and the criteria for approving averaging times exceeding 24 hours. The TSD has detailed information on our evaluation.
On January 10, 2012, EPA partially approved and partially disapproved the RACT SIP submitted by California on June 18, 2009 for the SJV extreme ozone nonattainment area (2009 RACT SIP), based in part on our conclusion that the State had not fully satisfied CAA section 182 RACT requirements for polystyrene manufacturing operations. See 77 FR 1417, 1425 (January 10, 2012). Final approval of Rule 4682 would satisfy California's obligation to implement RACT under CAA section 182 for this source category for the 1-hour ozone and 1997 8-hour ozone NAAQS and thereby terminate all CAA sanction and Federal Implementation Plan (FIP) implications of our RACT SIP action as it relates to polystyrene manufacturing.
The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule but are not currently the basis for rule disapproval.
Because EPA believes the submitted rule fulfills all relevant requirements, we are proposing to fully approve it as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally enforceable SIP.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act.
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from crude oil production sumps and refinery wastewater separators. We are approving local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.
Any comments must arrive by July 13, 2012.
Submit comments, identified by docket number EPA–R09–OAR–2012–0359, by one of the following methods:
1.
2.
3.
Nicole Law, EPA Region IX, (415) 947–4126,
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rules addressed by this proposal with the dates that they were amended by the local air agency and submitted by the California Air Resources Board (CARB).
On March 13, 2012, EPA determined that the submittal for SJVUAPCD Rule 4402 and SJVUPACD Rule 4625 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
On July 7, 2011 (76 FR 39777), we finalized a limited approval into the SIP of earlier versions of Rule 4402 and 4625 because these rules largely fulfilled relevant CAA requirements. We simultaneously finalized a limited disapproval of these rules, identifying several rule deficiencies. The SJVUAPCD adopted revisions to the SIP-approved versions on December 15, 2011 and CARB submitted them to us on February 23, 2012.
VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. The submitted Rule 4402, Crude Oil Production Sumps, controls VOC emissions from sumps by prohibiting first stage sumps, requiring covers, requiring recordkeeping, and limiting emergency pit use. The submitted Rule 4625, Wastewater Separators, controls VOC emissions from wastewater separators at refineries by requiring inspections, removing exemptions, and requiring recordkeeping. The rules were revised largely to address the deficiencies identified in EPA's July 7, 2011 limited disapproval. EPA's technical support documents (TSDs) have more information about these rules.
Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see sections 182(b)(2) and 182(f)), and must not relax existing requirements (see sections 110(l) and 193). The SJVUAPCD regulates an ozone nonattainment area (see 40 CFR part 81), so Rules 4402 and 4625 must fulfill RACT.
Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:
1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).
2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
3. “Technical Support Document for Suggested Control Measure for the Control of Organic Compound Emissions from Sumps Used in Oil Production Operations,” California Air Resources Board, August 11, 1988.
We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs have more information on our evaluation and explain how the revised submittal adequately addresses all deficiencies identified in our previous limited disapproval by revisions to the rule and/or the District's supporting documentation.
We recommend SJVUAPCD develop a more current inventory of all oil production sumps, ponds, and pits in the District for its next ozone plan. This inventory could identify the number of sumps and ponds by size, type (lined, unlined, excavation, above ground, etc.), VOC content and operator production rate. The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules but are not currently the basis for rule disapproval.
Because EPA believes the submitted rules fulfill all relevant requirements, we are proposing to fully approve them as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate these rules into the federally enforceable SIP. If we finalize this action as proposed, this action would terminate all sanction and FIP clocks associated with our July 2011 limited disapproval.
On January 10, 2012, EPA partially approved and partially disapproved the RACT SIP submitted by California on June 18, 2009 for the SJV extreme ozone nonattainment area (2009 RACT SIP), based in part on our conclusion that the State had not fully satisfied CAA Section 182 RACT requirements for crude oil production sumps and refinery wastewater separators. See 77 FR 1417, 1425 (January 10, 2012). Final approval of Rule 4402 and 4625 would satisfy California's obligation to implement RACT under CAA section 182 for this source category for the 1-hour ozone and 1997 8-hour ozone NAAQS and thereby terminate both the sanctions clocks and the Federal Implementation Plan (FIP) clock associated with these rules.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) for the genetically modified microorganism identified generically as
Comments must be received on or before July 13, 2012.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2010–0994, by one of the following methods:
•
•
•
You may be potentially affected by this action if you manufacture, import, process, or use products that contain living microorganisms subject to TSCA, especially if you know that your products contain or may contain
• Manufacturers, importers, or processors of chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the list of chemical substances excluded by TSCA section 3(2)(B) and the applicability provisions in § 725.105(c) for SNUR related obligations. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemical substances subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 725.920), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is proposing this SNUR for the genetically modified microorganism identified generically as
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” (see 40 CFR part 725, subparts L and M). EPA must make this determination by rule after considering all relevant factors, including the TSCA section 5(a)(2) factors, listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. Persons who must report are described in § 725.105(c).
EPA has interpreted the TSCA section 3(2) definition of “chemical substance” as authorizing EPA to regulate microorganisms under TSCA. See the
General provisions for SNURs for microorganisms appear in 40 CFR part 725, subpart L. These provisions describe persons subject to the proposed rule, recordkeeping requirements, exemptions to reporting requirements, and applicability to uses occurring before the effective date of the final rule. Provisions relating to user fees appear at 40 CFR part 700. Persons subject to this SNUR must comply with the notice requirements under TSCA section 5(a)(1)(A) and must submit a MCAN, using the procedures set out in 40 CFR part 725, subpart D, and additional “Significant New Uses of Microorganisms” procedures at 40 CFR part 725, subpart L.
Under 40 CFR part 725, EPA has adopted a more narrow interpretation of the TSCA section 5(h)(3) exemption for small quantities used in research than it has for other chemical substances under 40 CFR part 721. Under § 725.3, EPA has defined small quantities solely for research and development as “quantities of a microorganism manufactured, imported, or processed or proposed to be manufactured, imported, or processed solely for research and development that meet the requirements of § 725.234.” Any other research and development activity of a microorganism subject to a SNUR must comply with the TSCA section 5(a)(1)(A) notification requirements unless that activity has been excluded from coverage under the SNUR. See § 725.3, subparts E and F of 40 CFR part 725, and the April 11, 1997
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
To determine what would constitute a significant new use for the chemical substance that is the subject of this proposed SNUR, EPA considered the available information relating to the four bulleted factors listed in TSCA section 5(a)(2) factors listed in this unit, and other relevant factors. This includes relevant information about the toxicity of the chemical substance and likely human exposures and environmental releases associated with possible uses. See the risk assessment in the docket under docket ID number EPA–HQ–OPPT–2010–0994 for this information and other relevant factors.
EPA is proposing to establish significant new use and recordkeeping requirements for only the microorganism identified generically as
1. Investigation of whether paracelsin will be produced, and at what levels if the genetically modified
2. If paracelsin is produced, a study of whether paracelsin would be denatured/inactivated during production and processing.
3. If paracelsin is released from the facility, a study of whether paracelsin would be degraded/inactivated during wastewater treatment.
4. If released to the environment, studies on the persistence, stability, dissemination, accumulation, and the potential resulting biological activity of paracelsin with exposure to aquatic and terrestrial organisms in the environment.
5. Studies to determine the ability of the MCAN microorganism to survive in the environment relative to the survival of the unmodified parent or recipient strain, and to assess its competitiveness with other fungi in the environment. This study may require some supplementation with one or more carbon sources and the use of various soil types.
6. A study to determine survival of the fungus during an anaerobic fermentation for production of ethanol by an ethanologen, and survival of the fungus during ethanol distillation or at the distillation temperature for ethanol.
During review of the specific
EPA is proposing this SNUR for a chemical substance that has undergone review to achieve the following objectives with regard to the significant new uses designated in this proposed rule:
• EPA would receive notice of any person's intent to manufacture, import, or process a listed chemical substance for the described significant new use before that activity begins.
• EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing a listed chemical substance for the described significant new use.
• EPA would be able to determine whether regulation of prospective manufacturers, importers, or processors of a listed chemical substance is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7, and impose any necessary requirements before the described significant new use of that chemical substance occurs.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available electronically at
To establish a significant “new” use, EPA must determine that the use is not ongoing. EPA solicits comments on whether any of the uses proposed as significant new uses are ongoing.
As discussed in the
EPA has promulgated provisions to allow persons to comply with this proposed SNUR before the effective date. If a person were to meet the conditions of advance compliance under 40 CFR 725.912(a), the person would be considered exempt from the requirements of the SNUR.
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. There are two exceptions:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see 40 CFR 725.25(a)(2)). However, upon review of MCANs and SNUNs, the Agency has the authority to require appropriate testing. In this case, EPA recommends persons, before performing any testing, to consult with the Agency pertaining to protocol selection.
The recommended testing specified in Unit IV. may not be the only means of addressing the potential risks for the chemical substance. However, SNUNs submitted without any test data may increase the likelihood that EPA will respond by taking action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior submission. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substance.
• Potential benefits of the chemical substance.
• Information on risks posed by the chemical substance compared to risks posed by potential substitutes.
Persons subject to this SNUR must comply with the notice requirements under TSCA section 5(a)(1)(A) and must submit a MCAN, using the procedures set out in 40 CFR part 725, subpart D, and additional “Significant New Uses of Microorganisms” procedures at 40 CFR part 725, subpart L. SNUNs must be submitted to EPA on EPA Form No. 6300–07, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 725.25 and 40 CFR 725.27. E–PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers, importers, and processors of the chemical substance subject to this proposed rule. EPA's complete Economic Analysis is available in the docket under docket ID number EPA–HQ–OPPT–2010–0994.
This proposed rule would establish a SNUR for a chemical substance that was the subject of a MCAN. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).
According to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070–0012 (EPA ICR No. 574). This action would not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUN submitted by any small entity would not cost significantly more than $8,300.
A copy of that certification is available in the docket for this proposed rule.
This proposed rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit IX. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300. Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reason to believe that any State, local, or Tribal government would be impacted by this proposed rule. As such, EPA has determined that this proposed rule would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4).
This action would not have a substantial direct effect on 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, entitled “Federalism” (64 FR 43255, August 10, 1999).
This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this proposed rule.
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
Chemicals, Environmental protection, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
1. The authority citation for part 725 continues to read as follows:
15 U.S.C. 2604, 2607, 2613, and 2625.
2. Add § 725.1077 to subpart M to read as follows:
(a)
(2)(i) The significant new use is any manufacturing, processing, or use of the microorganism other than in a
(A) Submerged fermentation (i.e., growth of the microorganism occurs beneath the surface of the liquid growth medium).
(B) No solid plant material or insoluble substrate is included with the microorganism for fermentation.
(C) Any fermentation of solid plant material or insoluble substrate, to which fermentation broth is added, is initiated only after the inactivation of the microorganism as delineated in 40 CFR 725.422(d).
(ii) [Reserved]
(b) [Reserved]
Federal Communications Commission.
Proposed rule.
This document seeks comment on the privacy and data security practices of mobile wireless services providers with respect to customer information stored on their users' mobile communications devices. In addition, the document seeks comment on the application of existing privacy and security requirements to such information.
Comments may be filed on or before July 13, 2012, and reply comments may be filed on or before July 30, 2012.
You may submit comments, identified by CC Docket No. 96–115, by any of the following methods:
For further information regarding this proceeding, contact Douglas Klein, Office of General Counsel, (202) 418–1720.
This is a summary of a Public Notice released by the Wireline Competition Bureau, the Wireless Telecommunications Bureau, and the Office of General Counsel on May 25, 2012. The full text of this document is available for public inspection and copying during regular business hours in the Commission's Reference Information Center, Portals II, 445 12th Street SW., Room CY–A257, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone (202) 488–5300, facsimile (202) 488–5563 or via email
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
Documents will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, Room CY–A257, 445 12th Street SW., Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488–5300, facsimile (202) 488–5563, TTY (202) 488–5562,
The Commission has designated this proceeding as a “permit-but-disclose” proceeding in accordance with the Commission's
This Public Notice seeks comment on the privacy and data security practices of mobile wireless service providers with respect to customer information stored on their users' mobile communications devices and the application of existing privacy and security requirements to that information. Since the Commission last solicited public input on this question five years ago, technologies and business practices have evolved dramatically. The devices consumers use to access mobile wireless networks have become more sophisticated and powerful, and their expanded capabilities have at times been used by wireless providers to collect information about particular customers' use of the network—sometimes, it appears, without informing the customer. Service providers' collection and use of this information may be a legitimate and effective way to improve the quality of wireless services. At the same time, the collection, transmission, and storage of this customer-specific network information raise new privacy and security concerns.
Section 222 of the Communications Act of 1934, as amended, establishes the duty of every telecommunications carrier to “protect the confidentiality of proprietary information of, and relating to * * * customers.” Further, every carrier must protect “customer proprietary network information” (CPNI) that it receives or obtains by virtue of its provision of a telecommunications service and may use, disclose, or permit access to such information only in limited circumstances. The Commission is charged with enforcing those obligations.
In 2007, the Commission updated its rules implementing these statutory obligations to address the practice of “pretexting” and to reaffirm that carriers are responsible for taking all reasonable steps to protect their customers' private information. At the same time, the Commission adopted a Further Notice of Proposed Rulemaking to address another emerging privacy issue: the obligations of mobile carriers to secure the privacy of customer information stored in mobile communications devices. Although the Commission's particular focus in 2007 was on carriers' duty to erase customer information on mobile equipment prior to refurbishing the equipment, the issue of customer information on mobile devices has recently gained greater prominence. In particular, carriers recently have acknowledged using software embedded or preinstalled on wireless devices to collect information about the performance of the device and the provider's network.
Comparing the record collected by the Commission five years ago to the publicly available facts today highlights the need to refresh our record. In response to the 2007 Further Notice, AT&T Inc., for example, emphasized consumers' control of the information residing on their devices, stating: “[D]ecisions about what personal data to store, or not to store, on a mobile device rest with the consumer. Carriers do not typically have access to such information and play no role in determining what information a consumer chooses to store on mobile devices or how that information is used. Indeed, in some respects, mobile communications devices are becoming more like computers, laptops, personal digital assistants and other devices that permit customers to store their information. In the same vein that consumers erase information stored on those devices (or shred paper copies of bills or other documents that contain personal information), consumers are necessarily in the best position to know what data they have stored on their mobile devices and to take responsibility for safeguarding and erasing that information before disposal or recycling the device.” Sprint similarly stated in 2007 that “[w]ireless carriers are not well-positioned to guarantee the privacy of customer information stored on devices” because those devices are manufactured by suppliers and “in the physical control and custody of customers.”
In recent months, it has become clear that these submissions are badly out of date. Mobile carriers are directing the collection and storage of customer-specific information on mobile devices. In response to questions from Congress concerning its use of Carrier IQ software, AT&T explained that it gathers customer-specific data as an “enhance[ment of] its network reporting capabilities” and to collect information about its network from the perspective of its users' devices, “a view that cannot be obtained from the network alone.” Answering the same questions, Sprint identified a “legitimate need to deploy and use diagnostic software in the maintenance and operation of [Sprint's] services” and described how Sprint worked with the software vendor to customize data collection for Sprint's devices and network. T–Mobile likewise stated that it uses software on its customers' mobile devices to “assist[] T–Mobile in improving our customers' wireless experience by capturing and analyzing a narrow set of data related to some of the most common issues our customers experience.” The data collected in this manner may be shared with a third party for purposes of network diagnostics or improving customer care.
Commission staff has itself inquired into practices of mobile wireless service providers with respect to information stored on their customers' mobile communications devices. The staff's inquiry has focused on possible harms to consumers and on what service provider obligations, if any, apply or should apply under section 222 and other provisions of law within the Commission's jurisdiction. In light of these developments, we now seek to refresh the record in this docket concerning the practices of mobile wireless service providers with respect to information stored on their customers' mobile communications devices. How have those practices evolved since we collected information on this issue in the 2007 Further Notice? Are consumers given meaningful notice and choice with respect to service providers' collection of usage-related information on their devices? Do current practices serve the needs of service providers and consumers, and in what ways? Do current practices raise concerns with respect to consumer privacy and data security? How are the risks created by these practices similar to or different from those that historically have been addressed under the Commission's CPNI rules? Have these practices created actual data-security vulnerabilities? Should privacy and data security be greater considerations in the design of software for mobile devices, and, if so, should the Commission take any steps to encourage such privacy by design? What role can disclosure of service providers' practices to wireless consumers play? To what extent should consumers bear responsibility for the privacy and
Specifically with respect to section 222, we seek comment on the applicability and significance in this context of telecommunications carriers' duty under section 222(a) to protect customer information. Further, the definition of CPNI in section 222(h)(1) includes information “that is made available to a carrier by the customer solely by virtue of the carrier-customer relationship,” a phrase that on its face could apply to information collected at a carrier's direction even before it has been transmitted to the carrier. We seek comment on this analysis. We further seek comment on which, if any, of the following factors are relevant to assessing a wireless provider's obligations under section 222 and the Commission's implementing rules, or other provisions of law within this Commission's jurisdiction, and in what ways: whether the device is sold by the service provider; whether the device is locked to the service provider's network so that it would not work with a different service provider; the degree of control that the service provider exercises over the design, integration, installation, or use of the software that collects and stores information; the service provider's role in selecting, integrating, and updating the device's operating system, preinstalled software, and security capabilities; the manner in which the collected information is used; whether the information pertains to voice service, data service, or both; and the role of third parties in collecting and storing data.
Are any other factors relevant? If so, what are these other factors, and what is their relevance? What privacy and security obligations should apply to customer information that service providers cause to be collected by and stored on mobile communications devices? How does the obligation of carriers to “take reasonable measures to discover and protect against attempts to gain unauthorized access to CPNI” apply in this context? What should be the obligations when service providers use a third party to collect, store, host, or analyze such data? What would be the advantages and disadvantages of clarifying mobile service providers' obligations, if any, with respect to information stored on mobile devices—for instance through a declaratory ruling? What are the potential costs and benefits associated with such clarification?
National Highway Traffic Safety Administration (NHTSA), DOT.
Notice of proposed rulemaking.
This document proposes fees for Fiscal Year 2013 and until further notice, as authorized by 49 U.S.C. 30141, relating to the registration of importers and the importation of motor vehicles not certified as conforming to the Federal motor vehicle safety standards (FMVSS). These fees are needed to maintain the registered importer (RI) program.
You should submit your comments early enough to ensure that Docket Management receives them not later than July 13, 2012.
Comments should refer to the docket and notice numbers above and be submitted by any of the following methods:
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•
•
•
Clint Lindsay, Office of Vehicle Safety Compliance, NHTSA (202–366–5291). For legal issues, you may call Nicholas Englund, Office of Chief Counsel, NHTSA (202–366–5263). You may call Docket Management at 202–366–9324. You may visit the Docket in person from 9 a.m. to 5 p.m., Monday through Friday.
NHTSA published a notice on June 24, 1996 (61 FR 32411) fully discussing the rulemaking history of 49 CFR Part 594 and the fees authorized by the Imported Vehicle Safety Compliance Act of 1988, Public Law 100–562, since recodified at 49 U.S.C. 30141–47. The reader is referred to that notice for background information relating to this rulemaking action. Certain fees were initially established to become effective January 31, 1990, and have been periodically adjusted since then.
We are required to review and make appropriate adjustments at least every two years in the fees established for the administration of the RI program.
Proposed fees are based on time and costs associated with the tasks for which the fees are assessed. The fees proposed
Section 30141(a)(3) of Title 49, U.S. Code provides that RIs must pay the annual fees established “to pay for the costs of carrying out the registration program for importers. * * *” This fee is payable both by new applicants and by existing RIs. To maintain its registration, each RI, at the time it submits its annual fee, must also file a statement affirming that the information it furnished in its registration application (or in later submissions amending that information) remains correct. 49 CFR 592.5(f).
To comply with the statutory directive, we reviewed the existing fees and their bases in an attempt to establish fees that would be sufficient to recover the costs of carrying out the registration program for importers for at least the next two fiscal years. The initial component of the Registration Program Fee is the fee attributable to processing and acting upon registration applications. We have tentatively determined that this fee should be increased from $320 to $330 for new applications. We also have tentatively determined that the fee for the review of the annual statement should be increased from $195 to $201. The proposed adjustments reflect our time expenditures in reviewing both new applications and annual statements with accompanying documentation, and the small increases in indirect costs attributed to the agency's overhead costs in the two years since the fees were last adjusted.
We must also recover costs attributable to maintenance of the registration program that arise from the need for us to review a registrant's annual statement and to verify the continuing validity of information already submitted. These costs also include anticipated costs attributable to the possible revocation or suspension of registrations and reflect the amount of time that we have devoted to those matters in the past two years.
Based upon our review of these costs, the portion of the fee attributable to the maintenance of the registration program is approximately $475 for each RI. When this $475 is added to the $330 representing the registration application component, the cost to an applicant for RI status comes to $805, which is the fee we propose. This represents an increase of $10 over the existing fee. When the $475 is added to the $201 representing the annual statement component, the total cost to an RI for renewing its registration comes to $676, which represents an increase of $6.
Sec. 594.6(h) enumerates indirect costs associated with processing the annual renewal of RI registrations. The provision states that these costs represent a
Section 30141(a)(3)(B) also requires registered importers to pay other fees the Secretary of Transportation establishes to cover the costs of “making the decisions under this subchapter.” This includes decisions on whether the vehicle sought to be imported is substantially similar to a motor vehicle that was originally manufactured for importation into and sale in the United States and certified by its original manufacturer as complying with all applicable FMVSS, and whether the vehicle is capable of being readily altered to meet those standards. Alternatively, where there is no substantially similar U.S. certified motor vehicle, the decision is whether the safety features of the vehicle comply with, or are capable of being altered to comply with, the FMVSS based on destructive test information or such other evidence that NHTSA deems to be adequate. These decisions are made in response to petitions submitted by RIs or manufacturers, or on the Administrator's own initiative.
The fee for a vehicle imported under an eligibility decision made in response to a petition is payable in part by the petitioner and in part by other importers. The fee to be charged for each vehicle is the estimated
Since we last amended the fee schedule, the overall number of vehicle imports by RIs has increased, while the number of petitions has remained approximately the same. The total number of vehicles that RIs imported between 2009 and 2011 more than doubled from approximately 10,000 to 23,000, respectively. Over the same period, the number of vehicles imported under an import eligibility petition that was submitted by an RI (as opposed to an import eligibility decision initiated by the agency) increased from 485 in 2009 to 514 in 2010. That number subsequently decreased to 404 in 2011. Because the number of petitions has remained level over the past two years—averaging 12 per year—the agency has devoted approximately the same amount of staff time reviewing and processing import eligibility petitions.
Based on these trends, the
We are proposing no increase in the current fee of $175 that covers the initial processing of a “substantially similar” petition. Likewise, we are also proposing to maintain the existing fee of $800 to cover the initial costs for processing petitions for vehicles that have no substantially similar U.S.-
The importation fee varies depending upon the basis on which the vehicle is determined to be eligible. For vehicles covered by an eligibility decision on the agency's own initiative (other than vehicles imported from Canada that are covered by import eligibility numbers VSA–80 through 83, for which no eligibility decision fee is assessed), we are proposing that the fee remain $125. NHTSA determined that the costs associated with previous eligibility determinations on the agency's own initiative would be fully recovered by October 1, 2012. We propose to apply the fee of $125 per vehicle only to vehicles covered by determinations made by the agency on its own initiative on or after October 1, 2012.
Section 30141(a)(3) also requires a registered importer to pay any other fees the Secretary of Transportation establishes “to pay for the costs of—(A) processing bonds provided to the Secretary of the Treasury * * *.” upon the importation of a nonconforming vehicle to ensure that the vehicle would be brought into compliance within a reasonable time, or if it is not brought into compliance within such time, that it be exported, without cost to the United States, or abandoned to the United States.
The Department of Homeland Security (Customs) exercises the functions associated with the processing of these bonds. To carry out the statute, we make a reasonable determination of the costs that Department incurs in processing the bonds. In essence, the cost to Customs is based upon an estimate of the time that a GS–9, Step 5 employee spends on each entry, which Customs has judged to be 20 minutes.
When the fee schedule was last amended, we projected General Schedule salary raises to be effective in January 2011 and 2012. Based on our projections over the next two fiscal years, we are proposing that the processing fee be decreased by $0.84, from $9.93 per bond to $9.09. This decrease reflects the fact that GS–9 salaries have been frozen since we last amended the fee schedule in 2010. The $9.09 proposed fee would more closely reflect the direct and indirect costs that should be associated with processing the bonds.
In lieu of sureties on a DOT conformance bond, an importer may offer United States money, United States bonds (except for savings bonds), United States certificates of indebtedness, Treasury notes, or Treasury bills (collectively referred to as “cash deposits”) in an amount equal to the amount of the bond. 49 CFR 591.10(a). The receipt, processing, handling, and disbursement of the cash deposits that have been tendered by RIs cause the agency to consume a considerable amount of staff time and material resources. NHTSA has concluded that the expense incurred by the agency to receive, process, handle, and disburse cash deposits may be treated as part of the bond processing cost, for which NHTSA is authorized to set a fee under 49 U.S.C. 30141(a)(3)(A). We first established a fee of $459 for each vehicle imported on and after October 1, 2008, for which cash deposits or obligations of the United States are furnished in lieu of a conformance bond.
The agency considered its direct and indirect costs in calculating the fee for the review, processing, handling, and disbursement of cash deposits submitted by importers and RIs in lieu of sureties on a DOT conformance bond. We are proposing to decrease the fee from $514 to $495, which represents a decrease of $19. The factors that the agency has taken into account in proposing the fee include time expended by agency personnel, the slight increase in overhead costs, and the reduction in projected salary costs based on the General Schedule salary freeze since January 2010.
Each RI is currently required to pay $17 per vehicle to cover the costs the agency incurs in reviewing a certificate of conformity. We estimate that these costs will decrease from $17 to an average of $12 per vehicle. Although our overhead costs increased, the salary and benefit costs are less than our previous projections based on the General Schedule salary freeze. The number of certificates of conformity submitted for agency review has increased. This has decreased the agency's cost attributed to the review of each certificate of conformity. Based on these estimates, we are proposing to decrease the fee charged for vehicles for which a paper entry and fee payment is made, from $17 to $12, a difference of $5 per vehicle. However, if an RI enters a vehicle through the Automated Broker Interface (ABI) system, has an email address to receive communications from NHTSA, and pays the fee by credit card, the cost savings that we realize allow us to significantly reduce the fee to $6. We propose to apply the fee of $6 per vehicle if all the information in the ABI entry is correct.
Errors in ABI entries not only eliminate any time savings, but also require additional staff time to be expended in reconciling the erroneous ABI entry information to the conformity data that is ultimately submitted. Our experience with these errors has shown that staff members must examine records, make time-consuming long distance telephone calls, and often consult supervisory personnel to resolve the conflicts in the data. We have calculated this staff and supervisory time, as well the telephone charges, to amount to approximately $57 for each erroneous ABI entry. Adding this to the $6 fee for the review of conformity packages on automated entries yields a total of $63, representing no increase in the fee that is currently charged when there are one or more errors in the ABI entry or in the statement of conformity.
The proposed effective date of the final rule is October 1, 2012.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking is not significant. Accordingly, the Office of Management and Budget has not reviewed this rulemaking document under Executive Order 12886. Further, NHTSA has determined that the rulemaking is not significant under Department of Transportation's regulatory policies and procedures. Based on the level of the fees and the volume of affected vehicles, NHTSA currently anticipates that if made final, the costs of the proposed rule would be so minimal as not to warrant preparation of a full regulatory evaluation. The action does not involve any substantial public interest or controversy. If made final, the rule would have no substantial effect upon State and local governments. There would be no substantial impact upon a major transportation safety program. A regulatory evaluation analyzing the economic impact of the final rule establishing the registered importer program, adopted on September 29, 1989, was prepared, and is available for review in the docket.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
The agency has considered the effects of this proposed rulemaking under the Regulatory Flexibility Act, and certifies that if the proposed amendments are adopted they would not have a significant economic impact upon a substantial number of small entities.
The following is NHTSA's statement providing the factual basis for the certification (5 U.S.C. 605(b)). The proposed amendments would primarily affect entities that currently modify nonconforming vehicles and that are small businesses within the meaning of the Regulatory Flexibility Act; however, the agency has no reason to believe that these companies would be unable to pay the fees proposed by this action. In most instances, these fees would not be changed or be only modestly increased (and in some instances decreased) from the fees now being paid by these entities. Moreover, consistent with prevailing industry practices, these fees should be passed through to the ultimate purchasers of the vehicles that are altered and, in most instances, sold by the affected registered importers. The cost to owners or purchasers of nonconforming vehicles that are altered to conform to the FMVSS may be expected to increase (or decrease) to the extent necessary to reimburse the registered importer for the fees payable to the agency for the cost of carrying out the registration program and making eligibility decisions, and to compensate Customs for its bond processing costs.
Governmental jurisdictions would not be affected at all since they are generally neither importers nor purchasers of nonconforming motor vehicles.
Executive Order 13132 on “Federalism” requires NHTSA 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.” Executive Order 13132 defines the term “policies that have federalism implications” to include regulations that 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.” Under Executive Order 13132, NHTSA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.
The proposed rule would 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. Moreover, NHTSA is required by statute to impose fees for the administration of the RI program and to review and make necessary adjustments in those fees at least every two years. Thus, the requirements of section 6 of the Executive Order do not apply to this rulemaking action.
NHTSA has analyzed this action for purposes of the National Environmental Policy Act. The action would not have a significant effect upon the environment because it is anticipated that the annual volume of motor vehicles imported through registered importers would not vary significantly from that existing before promulgation of the rule.
Pursuant to Executive Order 12988 “Civil Justice Reform,” the agency has considered whether this proposed rule would have any retroactive effect. NHTSA concludes that this proposed rule would not have any retroactive effect. Judicial review of a rule based on this proposal may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with the base year of 1995). Before promulgating a rule for which a written assessment is needed, Section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-
Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
If you have any responses to these questions, please include them in your comments on this document.
Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Part 594 includes collections of information for which NHTSA has obtained OMB Clearance No. 2127–0002, a consolidated collection of information for “Importation of Vehicles and Equipment Subject to the Federal Motor Vehicle Safety, Bumper and Theft Prevention Standards,” approved through 01/31/2014. This proposed rule, if made final, would not affect the burden hours associated with Clearance No. 2127–0002 because we are proposing only to adjust the fees associated with participating in the registered importer program. These proposed new fees will not impose new collection of information requirements or otherwise affect the scope of the program.
Executive Order 13045 applies to any rule that (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned rule is preferable to other potentially effective and reasonably feasible alternatives considered by us. This rulemaking is not economically significant and does not concern an environmental, health, or safety risk.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs the agency to provide Congress, through the OMB, explanations when we decide not to use available and applicable voluntary consensus standards.
In this proposed rule, we propose to adjust the fees associated with the registered importer program. We propose no substantive changes to the program nor do we propose any technical standards. For these reasons, Section 12(d) of the NTTAA would not apply.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long. 49 CFR 553.21. We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Please submit two copies of your comments, including the attachments, to Docket Management at the beginning of this document, under
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit the following to the NHTSA Office of Chief Counsel (NCC–110), 1200 New Jersey Avenue SE., Washington, DC 20590: (1) A complete copy of the submission; (2) a redacted copy of the submission with the confidential information removed; and (3) either a second complete copy or those portions of the submission containing the material for which confidential treatment is claimed and any additional information that you deem important to the Chief Counsel's consideration of your confidentiality claim. A request for confidential treatment that complies with 49 CFR Part 512 must accompany the complete submission provided to the Chief Counsel. For further information, submitters who plan to request confidential treatment for any portion of their submissions are advised to review 49 CFR Part 512, particularly those sections relating to document submission requirements. Failure to adhere to the requirements of Part 512 may result in the release of confidential information to the public docket. In addition, you should submit two copies from which you have deleted the claimed confidential business information, to Docket Management at the address given at the beginning of this document under
We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated at the beginning of this notice under DATES. In accordance with our policies, to the extent possible, we will also consider comments that Docket Management receives after the specified comment closing date. If Docket Management receives a comment too late for us to consider in developing the proposed rule, we will consider that comment as
You may read the comments received by Docket Management at the address and times given near the beginning of this document under
You may also see the comments on the Internet. To read the comments on the Internet, go to
You may download the comments. The comments are imaged documents, in either TIFF or PDF format. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically search the Docket for new material.
The Department of Transportation assigns a regulation identifier number (RIN) 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. You may use the RIN that appears in the heading on the first page of this document to find this action in the Unified Agenda.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 594 as follows:
Imports, Motor vehicle safety, Motor vehicles.
1. The authority citation for part 594 continues to read as follows:
49 U.S.C. 30141, 31 U.S.C. 9701; delegation of authority at 49 CFR 1.50.
2. Amend § 594.6 by:
(a) Revising the introductory text of paragraph (a);
(b) Revising paragraph (b);
(c) Revising in paragraph (d) the first sentence;
(d) Revising the second sentence of paragraph (h); and
(e) Revising paragraph (i) to read as follows:
(a) Each person filing an application to be granted the status of a Registered Importer pursuant to part 592 of this chapter on or after October 1, 2012, must pay an annual fee of $805, as calculated below, based upon the direct and indirect costs attributable to: * * *
(b) That portion of the initial annual fee attributable to the processing of the application for applications filed on and after October 1, 2012, is $330. The sum of $330, representing this portion, shall not be refundable if the application is denied or withdrawn.
(d) That portion of the initial annual fee attributable to the remaining activities of administering the registration program on and after October 1, 2012, is set forth in paragraph (i) of this section. * * *
(h) * * * This cost is $21.66 per man-hour for the period beginning October 1, 2012.
(i) Based upon the elements and indirect costs of paragraphs (f), (g), and (h) of this section, the component of the initial annual fee attributable to administration of the registration program, covering the period beginning October 1, 2012, is $475. When added to the costs of registration of $330, as set forth in paragraph (b) of this section, the costs per applicant to be recovered through the annual fee are $805. The annual renewal registration fee for the period beginning October 1, 2012, is $676.
3. Amend § 594.7 by revising the first sentence of paragraph (e) to read as follows:
(e) For petitions filed on and after October 1, 2012, the fee payable for seeking a determination under paragraph (a)(1) of this section is $175. * * *
4. Amend § 594.8 by revising the first sentence of paragraph (b) and the first sentence of (c) to read as follows:
(b) If a determination has been made pursuant to a petition, the fee for each vehicle is $101. * * *
(c) If a determination has been made on or after October 1, 2012, pursuant to the Administrator's initiative, the fee for each vehicle is $125. * * *
5. Amend § 594.9 by revising paragraph (c) and (e) to read as follows:
(c) The bond processing fee for each vehicle imported on and after October 1, 2012, for which a certificate of conformity is furnished, is $9.09.
(e) The fee for each vehicle imported on and after October 1, 2012, for which cash deposits or obligations of the United States are furnished in lieu of a conformance bond, is $495.
6. Amend § 594.10 by revising the first sentence of paragraph (d) to read as follows:
(d) The review and processing fee for each certificate of conformity submitted on and after October 1, 2012 is $12. * * *
Transportation Security Administration, DHS.
Notice of proposed rulemaking (NPRM).
The Transportation Security Administration (TSA) has a statutory obligation to recover its costs for conducting security threat assessments (STAs) and credentialing for Hazardous Materials Endorsements (HMEs) and Transportation Worker Identification Credentials (TWICs). These fees reimburse TSA for the costs of administering the programs. The proposed rule advises that future revisions to fee schedules will be published in the
Submit comments by July 30, 2012.
You may submit comments, identified by the TSA docket number to this rulemaking, to the Federal Docket Management System (FDMS), a government-wide, electronic docket management system, using any one of the following methods:
See
Carolyn Mitchell, Office of Security Policy and Industry Engagement, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598–6002; telephone (571) 227–2372; email
TSA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action. See
With each comment, please identify the docket number at the beginning of your comments. TSA encourages commenters to provide their names and addresses. The most helpful comments reference a specific portion of the rulemaking, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, in person, by mail, or fax as provided under
If you would like TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.
TSA will file all comments to our docket address, as well as items sent to the address or email under
Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in
TSA will not place comments containing SSI in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. TSA will hold documents containing SSI, confidential business information, or trade secrets in a separate file to which the public does not have access, and place a note in the public docket explaining that commenters have submitted such documents. TSA may include a redacted version of the comment in the public docket. If an individual requests to examine or copy information that is not in the public docket, TSA will treat it as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Department of Homeland Security's (DHS') FOIA regulation found in 6 CFR part 5.
Please be aware that anyone is able to search the electronic form of all comments in any of our dockets by the name of the individual who submitted the comment (or signed the comment, if an association, business, labor union, etc., submitted the comment). You may review the applicable Privacy Act Statement published in the
You may review TSA's electronic public docket on the Internet at
You can get an electronic copy using the Internet by—
(1) Searching the electronic Federal Docket Management System (FDMS) Web page at
(2) Accessing the Government Printing Office's Web page at
(3) Visiting TSA's Security Regulations Web page at
In addition, copies are available by writing or calling the individual in the
Approximately 2 million workers, including Coast Guard-credentialed merchant mariners, port facility employees, longshore workers, truck drivers, and others requiring unescorted access to secure areas of maritime facilities and vessels regulated under the Maritime Transportation Security Act (MTSA)
As part of the process for obtaining a TWIC, applicants must pay a fee made up of three segments: Enrollment Segment, Full Card Production/Security Threat Assessment Segment, and Federal Bureau of Investigation (FBI) Segment.
In the TSA Hazardous Materials Endorsement Threat Assessment Program (HME Program), TSA conducts an STA for any driver seeking to obtain, renew, or transfer a hazardous materials endorsement (HME) on a state-issued commercial driver's license (CDL). The program was implemented to meet a statutory requirement that prohibits states from issuing a license to transport hazardous materials (hazmat) in commerce unless a determination has been made that the driver does not pose a security risk. The Act further requires that the risk assessment include checks of criminal history records, legal status, and relevant international databases.
Applicants for an HME pay a fee to cover the (1) costs of performing and adjudicating STAs, appeals, and waivers (Threat Assessment Fee); (2) the costs of collecting and transmitting fingerprints and applicant information (Information Collection Fee); and (3) the fee charged by the FBI to perform a criminal history records check (CHRC), called the FBI Fee.
These TWIC and HME fee amounts, which reimburse TSA for the costs of administering the programs, are specifically identified in current 49 CFR 1572.403 (state collection of HME fees), 1572.405 (TSA collection of HME fees), and 1572.501 (collection of TWIC fee). After receiving and evaluating public comments, TSA proposes to publish a final rule that removes specific fee amounts for these programs in 49 CFR part 1572, and instead publish any revisions to fee schedules in the
This proposed rule consists of an administrative revision. Therefore, there are no industry costs associated with the proposal. TSA costs for implementing the proposed rule would consist of administrative costs largely covered by current operations and therefore considered de minimis.
MTSA required DHS to issue regulations to prevent individuals from entering secure areas of vessels or MTSA-regulated port facilities unless such individuals undergo a successful STA and hold TWICs. In addition, nearly all credentialed merchant mariners are required to hold these transportation security cards.
Under 49 U.S.C. 5103a, a State is prohibited from issuing or renewing a commercial driver's license (CDL) unless the Secretary of Homeland Security has first determined that the driver does not pose a security threat warranting denial of the HME.
Congress directed TSA to collect user fees to cover the costs of its vetting and credentialing programs.
The statute requires that any fee collected must be available only to pay for the costs incurred in providing services in connection with performing the STA or providing the credential. The funds generated by the fee do not have a limited period of time in which they must be used; as fee revenue and service costs do not always match perfectly for a given period, a program may need to carry over funding from one fiscal year to the next to ensure that sufficient funds are available to continue normal program operations.
The following table identifies current fees for obtaining a TWIC
TSA has a statutory obligation to recover its costs for the HME and TWIC STA programs through user fees. These fees reimburse TSA for the costs of administering the program. Pursuant to the general user fee statute (31 U.S.C. 9701) and OMB circular A–25, TSA establishes user fees after providing the public notice and an opportunity to comment on the amount of the fee and the methodology TSA used to develop the fee amount.
The methodology and considerations supporting TWIC fee determinations are explained in detail in the preamble to the TWIC Final Rule.
The methodology and considerations supporting the HME fee determinations were explained in detail in the preamble to the HME Fees Final Rule.
In finalizing these methodologies, TSA considered comments from individual commercial drivers; labor organizations; trucking industry associations; State Departments of Motor Vehicles; associations representing the agricultural, chemical, explosives, and petroleum industries; and associations representing State governments.
As explained in the methodology discussion for the TWIC and HME rules, there are certain factors that could cause changes in the fees, such as inflation. Fees could also be affected by cost changes in contractual services for enrollment, adjudication, credentialing and other factors. For example, as explained in the methodologies proposed for TWIC and HME fees,
In addition, pursuant to the Chief Financial Officers Act of 1990 (Pub. L. 101–576, 104 Stat. 2838, Nov. 15, 1990), DHS/TSA is required to review fees no less than every two years (31 U.S.C. 3512). Upon review, if TSA finds that the fees are either too high (that is, total fees exceed the total cost to provide the services) or too low (total fees do not cover the total costs to provide the services) TSA must adjust the fee.
As previously discussed, TSA has a statutory requirement to sustain the HME and TWIC STA programs through user fees. Currently, TSA is at risk of having to suspend issuance of credentials to meet HME or TWIC program requirements or decreasing services until a rule change is completed to reflect any changes in fee amounts. To address this issue, TSA is proposing to revise existing regulations to ensure that TSA can continue to fund these programs on an ongoing basis, provide notice to affected stakeholders of any revisions to the fees, and meet contractual obligations with vendors.
TSA is proposing to amend 49 CFR 1572.403(a) (state collection of HME fees), 1572.405(a) (TSA collection of HME fees), and 1572.501(b) (collection of TWIC fees) to remove references to specific fee amounts, and instead publish any revisions to fee schedules in the
These amendments would make the provisions for HME and TWIC fees consistent with regulations regarding fees for STAs collected under 49 CFR part 1540, subpart C (related to civil aviation security). They would also be consistent with methods for communicating changes for fees required by the FBI
These proposed revisions would not affect FBI fees, as specified in 49 CFR 1572.403(a)(2) (state collection of HME fees), 1572.405(a)(3) (TSA collection of HME fees), and 1572.501(b)(3). The proposed revisions would also not affect the ability of a State to collect any other fees that it may impose on an individual who applies to obtain or renew an HME, as specified in current 49 CFR 1572.403(b)(3).
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
TSA has two collection requirements relevant to this rulemaking. For TWIC purposes (OMB 1652–0047), TSA collects information needed to process TWIC enrollment and conduct the STA. At the enrollment center, applicants verify their biographic information and provide identity documentation, biometric information, and proof of immigration status (if required). This information allows TSA to complete a comprehensive STA. If TSA determines that the applicant is qualified to receive a TWIC, TSA notifies the applicant that their TWIC is ready for activation. Once activated, this credential will be used for identification verification and access control. TSA also conducts a survey to capture worker overall satisfaction with the enrollment process; this optional survey is provided during the activation period. For purposes of the HME (OMB 1652–0027), the collection involves applicant submission of biometric and biographic information for TSA's STA in order to obtain the HME on a CDL issued by the States and the District of Columbia. Both of these collections are currently pending renewal.
Changes to Federal regulations must undergo several types of economic analyses. First, Executive Orders (E.O.s) 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531–2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this act requires agencies to consider international standards and, where appropriate to use them as the basis for U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation).
In conducting these analyses, TSA provides the following conclusions and summary information:
1. TSA has determined that this rulemaking is not a “significant regulatory action” as defined in E.O. 12866;
2. TSA has certified that this rulemaking would not have a significant impact on a substantial number of small entities;
3. TSA has determined that this rulemaking imposes no significant barriers to international trade as defined by the Trade Agreement Act of 1979; and
4. TSA has determined that this rulemaking does not impose an unfunded mandate on state, local, or tribal governments, or on the private sector as defined by the Unfunded Mandates Reform Act (UMRA).
The basis for these conclusions is set forth below.
This proposed rule consists of an administrative revision. Therefore, there are no industry costs associated with the proposal. TSA costs for implementing the proposed rule would consist of administrative costs largely covered by current operations and therefore considered de minimis.
By statute, TSA must sustain the HME and TWIC STA programs through user fees. The proposed revisions to existing regulations would increase TSA's flexibility to modify fees, as necessary, to ensure that STA, enrollment and credentialing fees reflect their associated costs, thus creating a more efficient process. This ability would facilitate the continual and ongoing funding of the TWIC and HME programs, allow TSA to timely meet contractual obligations with vendors, and still provide sufficient notice to affected stakeholders of any revisions to the fees.
Absent the ability to amend fees through notice rather than rulemaking, TSA is less likely to make timely changes to fees when associated costs change, such as contracts or vendor pricing, and when such changes are made, there is an increased likelihood that they would be more dramatic. Amending fees through notice would allow for more incremental changes and reduce the risk of TSA suspending issuance of credentials to meet HME or TWIC program requirements or
When an agency issues a proposed rulemaking, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities,”
The proposed rule is an administrative revision to 49 CFR 1572 Subpart E (“Fees for Security Threat Assessments for Hazmat Drivers”) and Subpart F (“Fees for Security Threat Assessments for Transportation Worker Identification Credential (TWIC)”) and does not impose any additional direct costs on the maritime or hazardous material transportation industries, including costs incurred by small entities. Therefore, TSA certifies that this rulemaking would not have a significant economic impact on a substantial number of small entities. However, TSA invites comments from members of the public who believe there would be a significant impact.
Small entities impacted by current HME and TWIC fee collection regulations, which this proposed rule is revising, include maritime industries associated with ports (
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this rulemaking and as TSA has determined that there are no associated industry costs, it does not impose significant barriers to international trade.
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”
This rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply and TSA has not prepared a statement under the Act.
TSA has analyzed this final rule under the principles and criteria of E.O. 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.
TSA has reviewed this action for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4347) and has determined that this action will not have a significant effect on the human environment.
The energy impact of the action has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94–163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.
Appeals, Commercial Driver's License, Criminal history background checks, Explosives, Facilities, Hazardous materials transportation, Maritime security, Merchant mariners,
For the reasons set forth in the preamble, the Transportation Security Administration proposes to amend part 1572 of Chapter XII of Title 49, Code of Federal Regulations, as follows:
1. The authority citation for part 1572 continues to read as follows:
46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and 46105; 18 U.S.C. 842, 845; 6 U.S.C. 469.
2. In § 1572.403 revise parapgraphs (a) through (a)(3) to read as follows:
(a)
(2) TSA shall publish the Threat Assessment Fee described in this subpart for an individual who applies to obtain or renew and HME as a notice in the
(3) The FBI Fee required for the FBI to process fingerprint identification records and name checks required under 49 CFR part 1572 is determined by the FBI under Public Law 101–515. If the FBI amends this fee, the individual must remit the amended fee.
3. In § 1572.405 revise paragraphs (a)(1) through (a)(4) to read as follows:
(a)
(2) TSA shall publish the Information Collection Fee and Threat Assessment Fee described in this subpart for an individual who applies to obtain or renew and HME as a notice in the
(3) The FBI Fee required for the FBI to process fingerprint identification records and name checks required under 49 CFR part 1572 is determined by the FBI under Pub. L. 101–515. If the FBI amends this fee, TSA or its agent, will collect the amended fee.
3. Amend § 1572.501 by revising introductory paragraph (b) through (b)(3), (c)(1) through (c)(2), (d), and (g) to read as follows:
(b)
(1) The Enrollment Segment Fee covers the costs for TSA or its agent to enroll applicants.
(2) The Full Card Production/Security Threat Assessment Segment Fee covers the costs for TSA or its agent to conduct a security threat assessment and produce the TWIC.
(3) The FBI Segment Fee covers the costs for the FBI to process fingerprint identification records, and is the amount collected by the FBI under Pub. L. 101–515. If the FBI amends this fee, TSA or its agent will collect the amended fee.
(c) * * *
(1) The Enrollment Segment Fee covers the costs for TSA or its agent to enroll applicants.
(2) The Reduced Card Production/Security Threat Assessment Segment covers the costs for TSA to conduct a portion of the security threat assessment and issue a TWIC.
(d)
(g)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule, extension of public comment period.
The National Marine Fisheries Service (NMFS) is extending
The deadline for receipt of comments on the proposed rule published on May 23, 2012 (77 FR 30486), is extended to August 21, 2012.
You may submit comments on this document, identified by FDMS Docket Number NOAA–NMFS–2012–0030, by any of the following methods:
•
•
•
Karl Moline at 301–427–8225.
On May 23, 2012, NMFS published a proposed rule at 77 FR 30486 that would revise existing regulations on the handling of information required to be maintained as confidential under the Magnuson-Stevens Act. The purposes of the proposed rule is to make both substantive and non-substantive changes necessary to comply with the MSA as amended by the 2006 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA) and the 1996 Sustainable Fisheries Act (SFA). In addition, the rule proposes to address some significant issues that concern NMFS' application of the MSA confidentiality provision to requests for information.
NMFS received several requests from fishery management councils and representatives of fishing and environmental organizations to extend the comment period on the proposed rule in order to allow the councils and other organizations to review the proposed rule and solicit feedback from their members. We have considered these requests and conclude that a 60-day extension is appropriate.
5 U.S.C. 561 and 16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) 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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
In the Matter of: Mohammad Reza Vaghari, a/k/a Mitch Vaghari, currently incarcerated at: Inmate Number: 63541–066, CI
On June 3, 2011, in the U.S. District Court, Eastern District of Pennsylvania, Mohammad Reza Vaghari, a/k/a Mitch Vaghari (“Vaghari”) was convicted of crimes relating to his participation in illegal business transactions with Iran between 2005 and 2008. Specifically, Vaghari was convicted of two counts of violating the International Emergency Economic Powers Act (50 U.S.C. 1701
Vaghari was also convicted of one count of conspiracy to violate IEEPA (18 U.S.C. 371) and one count of naturalization fraud stemming from his attempt to procure U.S. citizenship (18 U.S.C. 1425). Vaghari was sentenced to 33 months in prison followed by three years supervised release and a special assessment of $400.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
I have received notice of Vaghari's conviction for violating the IEEPA, and have provided notice and an opportunity for Vaghari to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have not received a submission from Vaghari. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Vaghari's export privileges under the Regulations for a period of 10 years from the date of Vaghari's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Vaghari had an interest at the time of his conviction.
Pursuant to Sections 766.25(h) and 766.23 of the Regulations, the Director of BIS's Office of Exporter Services, in consultation with the Director of BIS's Office of Export Enforcement, may take action to name persons related to a Respondent by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business in order to prevent evasion of a denial order. Because Vaghari is the president of Saamen Company LLC (“Saamen”), Saamen is related to Vaghari by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business. BIS believes that naming Saamen as a related person to Vaghari is necessary to avoid evasion of the denial order against Vaghari.
As provided in Section 766.23 of the Regulations, I gave notice to Saamen that its export privileges under the Regulations could be denied for up to 10 years due to its relationship with Vaghari and that BIS believes naming it as a person related to Vaghari would be necessary to prevent evasion of a denial order imposed against Vaghari. In providing such notice, I gave Saamen an opportunity to oppose its addition to the Vaghari Denial Order as a related party. Having received no submission, I have decided, following consultations with BIS's Office of Export Enforcement, including its Director, to name Saamen as a Related Person to the Vaghari Denial Order, thereby denying its export privileges for 10 years from the date of Vaghari's conviction.
I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which the Related Person had an interest at the time of Vaghari's conviction. The 10-year denial period will end on June 3, 2021.
Accordingly, it is hereby ordered
I. Until June 3, 2021 Mohammad Reza Vaghari, a/k/a Mitch Vaghari with last known addresses at: Currently incarcerated at: Inmate Number: 63541–066, CI Moshannon Valley, Correctional Institution, 555 Geo Drive, Philipsburg, PA 16866 and 116 Moore Road, Downington, PA 19335–1831, and when acting for or on behalf of Vaghari, his representatives, assigns, agents or employees (collectively referred to hereinafter as the “Denied Person”), and the following person related to the Denied Person as defined by Section 766.23 of the Regulations: Saamen Company LLC, with a last known address at: 3405 West Chester Pike Ste B105, Newtown Square, PA 19073–4250, and when acting for or on behalf of Saamen, its successors or assigns, agents, or employees (“the Related Person”) (together, the Denied Person and the Related Person are “Persons Subject to this Order”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
II. No person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the Persons Subject to this Order any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Persons Subject to this Order of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Persons Subject to this Order acquire or attempt to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Persons Subject to this Order of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Persons Subject to this Order in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Persons Subject to this Order, or service any item, of whatever origin, that is owned, possessed or controlled by the Persons Subject to this Order if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
III. In addition to the Related Person named above, after notice and opportunity for comment as provided in section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to the Denied Person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this Order if necessary to prevent evasion of the Order.
IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.
V. This Order is effective immediately and shall remain in effect until June 3, 2021.
VI. In accordance with Part 756 of the Regulations, Vaghari may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.
VII. In accordance with Part 756 of the Regulations, the Related Person may also file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.
VIII. A copy of this Order shall be delivered to the Denied Person and the Related Person. This Order shall be published in the
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service (CS) is organizing a Biotech Life Sciences trade mission to Australia, October 29–November 2, 2012. The mission to Australia is intended to include representatives from a variety of U.S. biotechnology and life science firms. The goals of the trade mission to Australia are to (1) increase U.S. exports to Australia, (2) introduce U.S. participants to potential strategic partners, (3) introduce U.S. participants to industry and government officials in Australia to learn about various opportunities, and (4) to educate the participants about trade policy and regulatory matters involved in doing business in Australia. Participating in an official U.S. industry delegation, rather than traveling to Australia independently, will increase the participants' profile and enhance the ability to secure meetings in Australia. The mission will include site visit(s) to prominent biotech organizations, government meetings, and briefings and receptions during the AusBiotech National Conference in Melbourne, Australia. Trade mission participants will have the opportunity to interact with CS staff to discuss industry developments, opportunities, and sales strategies.
U.S. biotech and life science firms consider Australia a harbor, with strong intellectual property rights protection and enforcement, and a transitional market that is strategically positioned to serve as a gateway to Asian markets. Australia is the leading biotechnology hub of the Asia-Pacific, with over 1,000 biotechnology companies, and clinical trials that meet the requirements under EU and FDA regulations. The Australian biotechnology sector covers human therapeutics, industrial applications, the agriculture sector, food technology, medical devices and diagnostics, and clean tech. Australia's consumer base and impressive economic strength further reinforce the importance of the market for U.S. firms.
Australia's US$11.39 billion pharmaceutical market is among the five largest in the Asia-Pacific region. Australia also has the region's second highest annual spending on medicine, after Japan. Much of this spending is on patented drugs, which account for 67% of the total pharmaceutical expenditure. Australia remains attractive to pharmaceutical firms—per-capita healthcare spending is high (US$5,077) and the regulatory regime is comparable to those in other developed countries. According to UN Comtrade, Australia imported finished medicine worth US$7.1 billion in 2010. Additionally, the current U.S. dollar-Australian dollar exchange rate is advantageous for U.S. product and services exports to Australia.
The AusBiotech National Conference is a venue that attracts not only biotech companies in the medical sector, but also in the diagnostics, agriculture, industrial and environmental biotech segments. The annual event has earned a reputation as the industry's premier biotechnology conference for the Asia Pacific region and has proved its relevance to the Australian and international biotechnology industries, attracting more than 1,100 participants including 233 international participants from 20 countries. This program presents an opportunity for the entire gamut of U.S. biotech companies looking to sell into Australia and spring board into Asia.
A U.S. Department of Commerce-led trade mission offers an attractive entrée for U.S. firms in the Australian market.
The goals of the trade mission to Australia are to (1) increase U.S. exports
In Melbourne, the U.S. mission members will be briefed by International Trade Administration CS staff, and other key U.S. government officials. Senior American Consulate officials will host a networking event for the group with Australian biotech and life science industry organizations and multipliers. During the mission, U.S. participants will benefit from attending the AusBiotech National Conference, customized one-on-one matchmaking with potential partners using the biopartnering.com platform, an efficient and easy to use personalized intelligent scheduling internet platform that facilitates scheduling appointments to connect with key people. And, receive a market briefing by the International Trade Administration Commercial Specialist for the biotech life science sector at the American Consulate, and networking activities. A site visit to Australia's top biotech company and/or leading research institution will be offered.
Participation in the mission will include the following:
• Pre-travel briefings/webinar on the Australian market and doing business in Australia;
• Pre-scheduled meetings with potential partners in Australia via the biopartnering.com platform;
• Transportation to a site visit to Australia's top biotech company and/or leading research institution;
• Meetings with Australian government officials;
• Participation in AusBiotech National Conference;
• Participation in the U.S. Pavilion at the BioIndustry Exhibition at AusBiotech;
• Participation in industry networking events in Melbourne;
• Meetings with International Trade Administration CS Australia's life science industry specialist.
Mission participants will be encouraged to arrive October 28 or 29, 2012 and the mission program will proceed from October 29 through November 2, 2012.
All parties interested in participating in the Biotech Life Sciences Trade Mission to Australia must complete and submit an application for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A minimum of 10 and a maximum of 12 participants will be selected for the mission from the applicant pool. U.S. companies already involved with and/or doing business in Australia as well as U.S. companies seeking exposure to the market for the first time are encouraged to apply.
After a company or trade association has been selected to participate in the mission, a participation fee paid to the U.S. Department of Commerce is required. The participation fee for one company representative will be $4,504 for small or medium-sized enterprises (SME)
• An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. If the U.S. Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the applications.
• Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content.
• In the case of a trade association or trade organization, the applicant must certify that for each company to be represented by the association or trade organizations, the products and/or services the represented company seeks to export are either produced in the United States or, if not, marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content.
Selection will be based on the following criteria:
• Suitability of a company's (or in the case of a trade association or trade organization, represented companies') products or services to the mission's goals
• Company's (or in the case of a trade association or trade organization, represented companies') potential for business in Australia, including likelihood of exports resulting from the trade mission
• Consistency of the applicant's (or in the case of a trade association or trade organization, represented companies') goals and objectives with the stated scope of the trade mission
Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process.
Mission recruitment will be conducted in an open and public manner, including publication in the
Recruitment for the mission will begin immediately and close on July 15, 2012. Selection decisions will be made on a rolling basis until 10–12 participants are selected. Although applications will be accepted through July 15, 2012, interested U.S. firms and trade associations are encouraged to submit their applications as soon as possible. We will inform applicants of selection decisions as the decisions are made. Applications received after July 15, 2012 will be considered only if space and scheduling constraints permit.
U.S. & Foreign Commercial Service, International Trade Administration, Department of Commerce.
Notice and request for comment.
The U.S. & Foreign Commercial Service (US&FCS) within the International Trade Administration (ITA) publishes this notice to announce its intent to adjust user fees in light of an independent cost of service study finding, which concluded that the US&FCS is not fully covering its costs for providing trade promotion services under the current fee structure. ITA provides a wide range of trade promotion information and services to U.S. businesses that are exporting or seeking to export. The services considered here are a subset of ITA activities that involve relatively more intensive time engagements with particular client firms; ITA will continue to provide its core information and services without charge. The primary objective of the adjustment to the User Fee Schedule is to ensure that the fees for the more intensive services reflect, to the extent possible, the actual costs incurred by the United States for providing these more intensive trade promotion services. The fee revenue is expected to continue to contribute to ITA's capabilities for assisting U.S. businesses in accessing export markets.
In addition, in revising the user fees, the US&FCS proposes to revise the small & medium-sized enterprises (SME) hourly rate discount as well as the SME incentive program piloted in 2008. The US&FCS has historically offered a discount to SME's, defined as those which employ 500 or less persons. Under the User Fee Schedule proposed in this notice, US&FCS will offer a discount of 50 percent per hour to SMEs.
The purpose of this notice is to align user fees and authorized activities with actual program costs; and improve our ability to properly recover direct and indirect costs associated with service delivery.
We will consider all comments that we receive on or before 60 days after publication in the
You may submit comments by either of the following methods:
Supporting documents and any comments we receive on this docket may be viewed at
The statutory mission of US&FCS is to “place primary emphasis on the promotion of exports of goods and services from the United States, particularly by small businesses and medium-sized businesses, and on the protection of United States business interests abroad * * * through activities that include assisting United States exporters.” 15 U.S.C. 4721(b). The statute further defines the term “United States exporter” at 15 U.S.C. 4721(j) as a U.S. citizen, U.S. corporation, or foreign corporation that is more than 95% U.S.-owned that “exports or seeks to export, goods or services produced in the United States.” User fees may be collected from U.S. exporters that meet the Service Eligibility Policy issued in FY 2011.
The Office of Management and Budget (OMB) Circular A–25 encourages the
The direct or indirect cost of a service provided by the Federal Government includes, but is not limited to, the following:
• Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement. Retirement costs should include all (funded or unfunded) accrued costs not covered by employee contributions as specified in Circular A–11.
• Physical overhead, consulting, or other indirect costs including material and supply costs, utilities, insurance travel, and rents or imputed rents on land, buildings, and equipment.
• The management and supervisory costs.
• The costs of enforcement, collection, research, establishment of standards, and regulation, including any environmental impact statements.
The US&FCS offers Trade Promotion Services to U.S. businesses that consist of Standard Services and Customized Services. For each of these services, the US&FCS collects fees according to the User Fee Schedule that is made available on its Web site and agency publications. The “Standard Services” listed in the User Fee Schedule are services that are performed in the same manner by all US&FCS field units. Other “Customized Services,” not shown in the chart below, entail substantive variation of the scope of work.
The US&FCS proposes to modify the user fees for both Standard Services and Customized Services. The Standard Services described below will no longer be assigned a standard global price. The proposed new User Fee Schedule provided below lists each standard service and the estimated number of hours for completion of service delivery. To determine the fee for any service, a flat hourly rate of $55.33 is multiplied by the estimated workload hours. Direct costs, such as transportation or an interpreter, will be discussed with the client and assessed in addition to the user fee. For Customized Services, the estimated workload hours will vary but the user fee will be calculated based on the flat rate of $55.33 per hour.
The Standard Services that will be assessed under the new fees are described below.
1.
2.
3.
4.
5.
6.
The US&FCS currently offers various discounts to SMEs. For all SMEs, the hourly rate is discounted 65 percent. In addition, the SME Incentive Program offers new-to-exporting firms a 50 percent discount from the full rate on the first Gold Key service, International Company Profile service or International Partner Search service, provided the firm meets the following criteria: (1) The firm's products are eligible for US&FCS fee-based assistance; (2) the firm has not exported in the prior 24 months; and (3) the firm has not previously received assistance from US&FCS. Other discounts involving bundling or bulk service orders were also offered in the past.
Under this notice, US&FCS proposes to eliminate the SME incentive program. A SME discount of 50 percent per hour will be offered as an exception to the OMB full cost recovery guidance, resulting in a hourly rate of $27.66 for all SMEs.
Full cost rates and SME discount rates are provided on the next page so that the public can comment upon the implications of full and SME rates.
The cost of service methodology developed by US&FCS was designed to bring the organization closer to full cost recovery guidance set forth in OMB Circular A–25. To set prices that are “self sustaining,” the US&FCS had to determine the true cost of providing various trade promotion services.
Federal Accounting Standards permit US&FCS to use an activity-based costing model to determine the true cost of services listed in the proposed User Fee Schedule. The activities were defined in accordance with the US&FCS list of eleven (11) services offered by US&FCS, including both standard (6) and customized (5) services.
As part of the cost of service study, the US&FCS conducted a workload survey to obtain a more accurate estimate of the true cost for delivery of specific services. The workload survey was designed and distributed to all US&FCS international and domestic field units. An operational audit technique was used for this workload survey. The operational data is based on level of effort exerted by a cross-section of staff members who are subject matter experts and practitioners. The independent contractor commissioned for the cost of service study reviewed the workflow process for delivery of standard and customized services, breaking out the discrete steps of each activity to obtain the estimated time to complete each step, then combined the step workload to determine the total workload estimate per service. The data submitted by various US&FCS field units was then aggregated to determine the global average of workload for each standard or customized service.
The proposed global average hourly rate of $55.33 was based on actual staffing data and payroll for staff specifically engaged in the delivery of trade promotion services, rather than data aggregated from US&FCS staff as a whole. This resulted in a weighted average hourly rate that did not include overhead, benefits and other burdening factors. (These burdening factors were later added to produce the burdened hourly rate of $55.33.) Using FY2010 ITA budget data, fringe benefits and non-labor related costs (e.g. materials, supplies, rent, utilities, equipment) were prorated to determine the burdening rate that was to be added to the hourly rate. This resulted in an hourly rate that accounts for all applicable labor and non-labor costs specifically related to the delivery of services, which is consistent with federal accounting standards.
Based on the information provided above, the US&FCS believes its proposed fees are consistent with the objective of OMB Circular A–25 to “promote efficient allocation of the nation's resources by establishing charges for special benefits provided to the recipient that are at least as great as the cost to the U.S. Government of providing the special benefits * * * ” OMB Circular A–25(5)(b).
Ms. Erin Sullivan, U.S. & Foreign Commercial Service, Office of Strategic Planning & Resource Management, 1400 Constitution Avenue NW., Rm. C125, Washington, DC 20235, Phone: (202) 482–1539.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; fishery opening date.
NMFS is announcing the opening date of the commercial Atlantic region non-sandbar large coastal shark fishery. This action is necessary to inform fishermen and dealers about the fishery opening date.
The commercial Atlantic region non-sandbar large coastal shark fishery will open on July 15, 2012.
Karyl Brewster-Geisz or Guy DuBeck, 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
On January 24, 2012 (77 FR 3393), the National Marine Fisheries Service (NMFS) published a final rule that established quota levels and opening dates for the 2012 Atlantic commercial shark fisheries. In the final rule, we stated that the 2012 Atlantic non-sandbar large coastal shark (LCS) fishery would open on either the effective date of the final rule implementing the Atlantic HMS electronic dealer
All of the shark fisheries will remain open until December 31, 2012, unless we determine that the fishing season landings have reached, or are projected to reach, 80 percent of the available quota. At that time, consistent with § 635.27(b)(1), we will file for publication with the Office of the Federal Register a closure action for that shark species group and/or region that will be effective no fewer than 5 days from the date of filing. From the effective date and time of the closure until we announce, via a
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
Four Assessment Workshops via webinars are being added to SEDAR 28. The webinars will be held July 10, 2012, July 24, 2012, August 9, 2012, and August 30, 2012. All webinars will begin at 1 p.m. (Eastern) and are expected to last four hours. The SEDAR 28 Review Workshop was originally scheduled for August 6–10, 2012 and will now be held October 29–November 2, 2012. This is the twenty-eighth SEDAR. See
The SEDAR 28 Assessment Workshops via webinar will be held July 10, 2012, July 24, 2012, August 9, 2012, and August 30, 2012. The SEDAR 28 Review Workshop will take place October 29–November 2, 2012. See
The SEDAR 28 Review Workshop will be held at the DoubleTree Atlanta-Buckhead, 3342 Peachtree Rd., Atlanta, GA 30326, telephone: (404) 231–1234. The Assessment Workshop webinars will be held via online webinar. The webinars and Review workshop are open to members of the public. Those interested in participating in the webinars should contact Kari Fenske and Ryan Rindone at SEDAR (
Kari Fenske, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone: (843) 571–4366; email:
The original notice for the SEDAR 28 Review Workshop was published in the
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR includes three workshops: (1) Data Workshop, (2) Stock Assessment Workshop and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Stock Assessment Workshop is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Consensus Summary documenting Panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Panelists for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office and Southeast Fisheries Science Center. SEDAR participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
July 10, 2012: 1 p.m.–5 p.m.; July 24, 2012: 1 p.m.–5 p.m.; August 9, 2012: 1 p.m.–5 p.m.; August 30, 2012: 1 p.m.–5 p.m.
The established time may be adjusted as necessary to accommodate the timely completion of discussion relevant to the data workshop process. Such adjustments may result in the meeting being extended from, or completed prior to the time established by this notice.
October 29, 2012: 1 p.m.–8 p.m.; October 30, 2012: 8 a.m.–8 p.m.; October 31, 2012: 8 a.m.–8 p.m.; November 1, 2012: 8 a.m.–8 p.m.; November 2, 2012: 8 a.m.–1 p.m.
The Review Workshop is an independent peer review of the assessment developed during the Data and Assessment Workshops. Workshop Panelists will review the assessment and document their comments and recommendations in a Consensus Summary.
Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. 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 Fishery Conservation and Management Act, provided the public
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council's (Council) VMS/Enforcement Committee and Advisory Panel will meet to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Thursday, June 28, 2012 at 9:30 a.m.
The meeting will be held at the Hilton Garden Inn, One Thurber Street, Warwick, RI 02886; telephone: (401) 734–9600; fax: (401) 734–9700.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The items of discussion in the committee's agenda are as follows:
The VMS/Enforcement Committee and Advisory Panel will make recommendations for NOAA enforcement priorities for 2013. They will provide an open session for public comments concerning Compliance and Effectiveness of Regulations for New England Fishery Management Plans (FMPs). The
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided 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
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The North Pacific Fishery Management Council's (Council) Golden King Crab Price Formula Committee is holding a meeting at the North Pacific Fishery Management Council office, Room 205.
The meeting will be held on June 28, 2012 from 1 p.m. to 5 p.m. and June 29, 2012, from 8:30 a.m. to 5 p.m.
The meeting will be held at the North Pacific Fishery Management Council, 605 W 4th Avenue, Suite 306, Anchorage, AK 99501.
Mark Fina, Council staff; telephone: (907) 271–2809.
The Committee is meeting concerning the arbitration system that is part of the Bering Sea and Aleutian Islands crab rationalization program. The Committee will give specific attention to the development of the price formula for golden king crab under the arbitration system. Additional information is posted on the Council Web site:
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. 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 Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271–2809 at least 7 working days prior to the meeting date.
Bureau of Consumer Financial Protection.
Notice of proposed Privacy Act System of Records.
In accordance with the Privacy Act of 1974, as amended, the Bureau of Consumer Financial Protection, hereinto referred to as the Consumer Financial Protection Bureau (“CFPB” or the “Bureau”), gives notice of the establishment of a Privacy Act System of Records.
Comments must be received no later than July 13, 2012. The new system of records will be effective July 23, 2012 unless the comments received result in a contrary determination.
You may submit comments by any of the following methods:
•
•
Comments will be available for public inspection and copying at 1700 G Street
Claire Stapleton, Chief Privacy Officer, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552, (202) 435–7220.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Act”), Public Law 111–203, Title X, established the CFPB. The CFPB administers, enforces, and implements federal consumer financial law, and, among other powers, has authority to protect consumers from unfair, deceptive, and abusive practices when obtaining consumer financial products or services.
Pursuant to Section 1100 of Title X of the Act, authority for the creation and maintenance of a national registration system for residential mortgage loan originators (“MLOs”), as required by Section 1507 of the Secure and Fair Enforcement for Mortgage Licensing Act, 12 U.S.C 5106 (the “S.A.F.E. Act”), was transferred to the Bureau by an amendment to the S.A.F.E. Act.
This national registration system, known as the Nationwide Mortgage Licensing System and Registry (“NMLSR” or the “Federal Registry”), allows MLOs employed by federal agency regulated institutions to register and submit required information about themselves and their backgrounds as required under Section 1507 of the S.A.F.E. Act, 12 U.S.C. 5106, or its implementing regulation, 12 CFR 1007. More information about this system is available at
Information in the NMLSR is available to the Bureau, the Federal banking agencies (as defined in Section 1503 of the S.A.F.E. Act, 12 U.S.C. 5102(2)), and the Farm Credit Administration (“FCA”). An agency may retrieve non-public registration information only with respect to employees of the institutions subject to that agency's respective authority.
While the NMLSR also contains information required by individual states relating to the licensing of individuals who are MLOs practicing in their states, the CFPB does not claim ownership for those records, nor does this notice cover such records.
To ensure full compliance with the Privacy Act of 1974, 5 U.S.C. 552a, as amended, the CFPB is providing notice of the transfer of authority for S.A.F.E. Act activities, including the regulations that require MLOs to register through the NMLSR, the existence and character of records maintained by the system, and the procedures by which such records may be accessed and amended by individuals as allowed under the Privacy Act and the Freedom of Information Act. The CFPB will maintain the records covered by this notice.
The Dodd-Frank Wall Street Reform and Consumer Protection Act amended the S.A.F.E. Act and transferred responsibility for this system of records from the Federal banking agencies and the FCA to the Bureau. Those agencies that previously published notices establishing this system of records will revoke them upon this notice becoming effective, and this notice will serve as the sole notice for this system of records.
The report of a new system of records has been submitted to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated November 30, 2000, and the Privacy Act, 5 U.S.C. 552a(r).
The system of records entitled, “CFPB.019—Nationwide Mortgage Licensing System and Registry” is published in its entirety below.
Nationwide Mortgage Licensing System and Registry.
Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552.
State Regulatory Registry LLC, 1129 20th Street NW., Washington, DC 20036.
Individuals covered by this system include MLOs that are required to be registered under Section 1507 of the S.A.F.E. Act, 12 U.S.C. 5106, or its implementing regulation, 12 CFR 1007.
Records in this system contain identifying information about MLOs including: Names and former or other names used; Social Security numbers; genders; dates and places of birth; home and business contact information; employment dates; criminal histories, including the results of criminal background checks; financial services-related employment histories; civil, criminal, regulatory, and enforcement actions taken against MLOs in connection with their employment in the financial services industry; state license(s) held, status and license numbers, including license revocations and suspensions; fingerprint data; and unique identifiers assigned to NMLSR registrants.
Secure and Fair Enforcement for Mortgage Licensing Act (S.A.F.E. Act), Public Law 110–289, Division A, Title V, Sections 1501–1517, 122 Stat. 2654, 2810–2824 (July 30, 2008), codified at 12 U.S.C. 5106; The Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, Title X, Section 1100 (5), codified at 12 U.S.C. 5106.
The system allows for the registration of MLOs employed by federal agency regulated institutions in a national registry, as required by the S.A.F.E. Act. The information is maintained to support federal regulatory oversight while providing the public with access to certain information concerning MLOs employed by institutions regulated by the Federal banking agencies or the FCA, including names and employment histories of those MLOs.
These records may be disclosed, consistent with the CFPB Disclosure of Records and Information Rules, promulgated at 12 CFR part 1070
(1) Appropriate agencies, entities, and persons when: (a) the CFPB suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the CFPB has determined that, as a result of the suspected or confirmed compromise, there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems
(2) Another federal or state agency to: (a) Permit a decision as to access, amendment or correction of records to be made in consultation with or by that agency; or (b) verify the identity of an individual or the accuracy of information submitted by an individual who has requested access to or amendment or correction of records;
(3) The Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf;
(4) Congressional offices in response to an inquiry made at the request of the individual to whom the record pertains;
(5) Contractors, agents, or other authorized individuals performing work on a contract, service, cooperative agreement, job, or other activity on behalf of the CFPB or Federal Government and who have a need to access the information in the performance of their duties or activities;
(6) The U.S. Department of Justice (“DOJ”) for its use in providing legal advice to the CFPB or in representing the CFPB in a proceeding before a court, adjudicative body, or other administrative body, where the use of such information by the DOJ is deemed by the CFPB to be relevant and necessary to the advice or proceeding, and in the case of a proceeding, such proceeding names as a party in interest:
(a) The CFPB;
(b) Any employee of the CFPB in his or her official capacity;
(c) Any employee of the CFPB in his or her individual capacity where DOJ or the CFPB has agreed to represent the employee; or
(d) The United States, where the CFPB determines that litigation is likely to affect the CFPB or any of its components;
(7) A grand jury pursuant either to a federal or state grand jury subpoena, or to a prosecution request that such record be released for the purpose of its introduction to a grand jury, where the subpoena or request has been specifically approved by a court. In those cases where the Federal Government is not a party to the proceeding, records may be disclosed if a subpoena has been signed by a judge;
(8) A court, magistrate, or administrative tribunal in the course of an administrative proceeding or judicial proceeding, including disclosures to opposing counsel or witnesses (including expert witnesses) in the course of discovery or other pre-hearing exchanges of information, litigation, or settlement negotiations, where relevant or potentially relevant to a proceeding, or in connection with criminal law proceedings;
(9) Appropriate agencies, entities, and persons, including but not limited to potential expert witnesses or witnesses in the course of investigations, to the extent necessary to secure information relevant to the investigation;
(10) Appropriate federal, state, local, foreign, tribal, or self-regulatory organizations or agencies responsible for investigating, prosecuting, enforcing, implementing, issuing, or carrying out a statute, rule, regulation, order, policy, or license if the information may be relevant to a potential violation of civil or criminal law, rule, regulation, order, policy or license;
(11) To institutions employing MLOs that are required to be federally registered under Section 1507 of the S.A.F.E. Act, 12 U.S.C. 5106, for use in registering employees as mortgage loan originators or renewing employee registrations;
(12) To the public when the information relates to the employment history of, and publicly adjudicated disciplinary and enforcement actions against, MLOs that is included in the NMLSR for access by the public in accordance with Section 1507 of the S.A.F.E. Act, 12 U.S.C. 5106; and
(13) To the Federal Banking Agencies, as defined in section 1503 of the S.A.F.E. Act, 12 U.S.C. 5102(2), and the FCA, to carry out their oversight responsibilities for MLOs employed by entities subject to their respective authorities.
Records maintained in this system are stored electronically and in file folders. Paper copies of individual records are made by authorized CFPB staff.
Records are retrievable by a variety of fields including, but not limited to: an individual MLO's name or unique identification number; by the financial institution's name or unique NMLS identification number; or by some combination thereof.
Access to electronic records is restricted to authorized personnel who have been issued non-transferrable access codes and passwords. Other records are maintained in locked file cabinets or rooms with access limited to those personnel whose official duties require access.
The CFPB will maintain computer and paper records indefinitely until the National Archives and Records Administration approves the CFPB's records disposition schedule.
Consumer Financial Protection Bureau, Assistant Director, Supervision, 1700 G Street NW., Washington, DC 20552.
State Regulatory Registry LLC 1129 20th Street NW., Washington, DC 20036.
Records created by a MLO or by a MLO's bank or bank subsidiary employer, or FCA institution or institution subsidiary employer, in the NMLSR may be accessed or amended directly by the MLO about whom the record pertains. If assistance is required to access, contest or amend such a record, individuals may contact the NMLS Call Center at (240) 386–4444, or may inquire in writing in accordance with instructions appearing in Title 12, Chapter 10 of the CFR, “Disclosure of Records and Information.” Address such requests to: Chief Privacy Officer, Bureau of Consumer Financial Protection, 1700 G Street NW., Washington, DC 20552.
See “Notification Procedures” above.
See “Notification Procedures” above.
Information maintained in this system is obtained from MLOs who submit information to the registry and the results of Federal Bureau of Investigation (FBI) background checks.
None.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–23 with attached transmittal, policy justification, and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Republic of Korea has requested a possible sale of (367) CBU–105D/B Wind Corrected Munition Dispenser (WCMD) Sensor Fuzed Weapons (SFW), (28) Captive Air Training Missiles (CATM), (7) Dummy Air Training Missiles (DATM), and (18) spare tails kits for maintenance float, communication equipment, electronic warfare systems, support equipment, spare engine containers, spare and repair parts, tools and test equipment, technical data and publications, personnel training and training equipment, U.S. government and contractor engineering, technical, and logistics support services, and other related elements of logistics and program support. The estimated cost is $325 million.
This proposed sale will contribute to the foreign policy goals and national security objectives of the United States by meeting the legitimate security and defense needs of an ally and partner nation. The Republic of Korea continues to be an important force for peace, political stability, and economic progress in North East Asia.
The Republic of Korea intends to use these CBU–105D/B Sensor Fuzed Weapons to modernize its armed forces and enhance its capability to defeat a wide range of enemy defenses including fortifications, armored vehicles, and maritime threats. Additionally, the munition's precision and low failure rate will reduce incidents of fratricide and increase overall effectiveness. The proposed sale will allow the Republic of Korea Air Force (ROKAF) to expand interoperability with U.S. and other regional coalition forces. The Republic of Korea will have no difficulty absorbing these munitions into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
Employment of the CBU–105D/B Sensor Fuzed Weapon will not result in more than one percent unexploded ordnance across the range of intended operational environments. The agreement applicable to the transfer of the CBU–105D/B and the CBU–105D/B integration test assets will contain a statement by the Government of the Republic of Korea that the cluster munitions and cluster munitions technology will be used only against clearly defined military targets and will not be used where civilians are known to be present or in areas normally inhabited by civilians.
The prime contractor will be Textron Systems Corporation of Wilmington, MA. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require annual trips to the Republic of Korea involving up to two U.S. Government and three contractor representatives for technical reviews/support, and program management for a period of approximately two years. There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The CBU–105D/BD/B Sensor Fuzed Weapon (SFW) is an advanced 1,000-pound class cluster bomb munition containing sensor fuzed sub-munitions that are designed to attack and defeat a wide range of moving or stationary land and maritime threats with minimal collateral damage. The SFW is currently the only combat proven, clean battle weapon that meets U.S. law regarding cluster munition safety standards. In addition to added safety, no other munition is as versatile and effective against so many different target types. Major components and technical data are classified up to Secret. Anti-tamper security measures are incorporated into the munition to prevent exploitation. The munition will be delivered in its Unclassified All-Up-Round configuration.
2. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–25 with attached transmittal, policy justification, and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Finland has requested a possible sale of 70 M–39 Block 1A Army Tactical Missile System (ATACMS) T2K Unitary Missiles, Missile Common Test Device software, ATACMS Quality Assurance Team support, spare and repair parts, tools and test equipment, support equipment, personnel training and training equipment, publications and technical data, U.S. government and contractor engineering and logistics support services, and other related elements of logistics support. The estimated cost is $132 million.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country which has been, and continues to be, an important force for political stability and economic progress in Europe.
Finland intends to use these defense articles and services to expand its existing army architecture and improve its self-defense capabilities. This will contribute to the Finnish Defense Forces' goal of modernizing its capability while further enhancing interoperability between Finland, the United States, and other allies.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be Lockheed Martin Missiles and Fire Control in Dallas, Texas. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require up to two U.S. Government or contractor representatives to travel to Finland for up to one week for equipment de-processing/fielding, system checkout, and training.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The Army Tactical Missile System (ATACMS) Block 1A T2K Unitary is a ground-launched surface-to-surface guided missile system with a unitary warhead. ATACMS are fired from the M270A1 Multiple Launch Rocket System and the High Mobility Artillery Rocket System launchers. The highest classification level for release of the ATACMS M–39 Block 1A is Secret. The highest level of classified information that could be disclosed by a sale or by testing of the end item is Secret. The Fire Direction System, Data Processing Unit, and special application software are Secret. The highest level that must be disclosed for production, maintenance, or training is Confidential. The Communications Distribution Unit software is Confidential. The system specifications and limitations are classified Confidential. The vulnerability data, countermeasures, vulnerability/susceptibility analyses, and threat definitions are classified up to Secret.
2. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures which might reduce weapon system effectiveness or could be used in the development of a system with similar or advanced capabilities.
Department of the Air Force, U.S. Air Force Scientific Advisory Board.
Meeting Notice.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150, the Department of Defense announces that the United States Air Force Scientific Advisory Board (SAB) meeting will take place 27–28 June 2012 at the Secretary of the Air Force Technical and Analytical Support Conference Center, 1550 Crystal Drive, Arlington, VA 22202. The meeting will be from 7:30 a.m.–4:40 p.m. on Wednesday, 27 June 2012, with the sessions from 7:30 a.m.–9:30 a.m. open to the public; and 7:30 a.m.–4:30 p.m. on Thursday, 28 June 2012, with the sessions from 7:30 a.m.–10:00 a.m. and 1:30 p.m.–2:00 p.m. open to the public. The banquet from 6:00 p.m.–8:45 p.m. on 28 June 2012 at the Key Bridge Marriott, 1401 Lee Highway, Arlington, VA 22201 will also be open to the public.
The purpose of this Air Force Scientific Advisory Board quarterly meeting is to discuss and deliberate the findings of the FY12 SAB studies covering non-traditional intelligence, surveillance, and reconnaissance in contested environments; ensuring cyber situational awareness for commanders; and extended uses of Air Force Space Command space-based sensors. The draft FY13 SAB study topic Terms of Reference and potential sites for the FY13 Spring Board quarterly meeting will also be discussed.
In accordance with 5 U.S.C. 552b, as amended, and 41 CFR 102–3.155, The Administrative Assistant of the Air Force, in consultation with the Air Force General Counsel, has agreed that the public interest requires some sessions of the United States Air Force Scientific Advisory Board meeting be closed to the public because they will discuss information and matters covered by section 5 U.S.C. 552b(c)(1).
Any member of the public wishing to provide input to the United States Air Force Scientific Advisory Board should submit a written statement in accordance with 41 CFR § 102–3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act and the procedures described in this paragraph. Written statements can be submitted to the Designated Federal Officer at the address detailed below at any time. Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the address listed below at least five calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the United States Air Force Scientific Advisory Board until its next meeting. The Designated Federal Officer will review all timely submissions with the United States Air Force Scientific Advisory Board Chairperson and ensure they are provided to members of the United States Air Force Scientific Advisory Board before the meeting that is the subject of this notice.
The United States Air Force Scientific Advisory Board Executive Director and Designated Federal Officer, Lt Col Matthew E. Zuber, 240–612–5503, United States Air Force Scientific Advisory Board, 1500 West Perimeter Road, Ste. #3300, Joint Base Andrews,
Office of Nonproliferation and International Security, Department of Energy.
Proposed subsequent arrangement.
This notice is being issued under the authority of section 131a.of the Atomic Energy Act of 1954, as amended. The Department is providing notice of a proposed subsequent arrangement under the Agreement for Cooperation Between the Government of the United States of America and the Government of Japan Concerning Peaceful Uses of Nuclear Energy and the Agreement for Cooperation Between the United States of America and the Republic of Kazakhstan Concerning Peaceful Uses of Nuclear Energy.
This subsequent arrangement will take effect no sooner than June 28, 2012.
Mr. Sean Oehlbert, Office of Nonproliferation and International Security, National Nuclear Security Administration, Department of Energy. Telephone: 202–586–3806 or email:
This subsequent arrangement concerns the retransfer of 6,672,212 g of U.S.-origin enriched uranium fuel fabrications scrap, containing 233,977 g of the isotope U–235 (less than five percent enrichment), from Nuclear Fuel Industries, Ltd. in Minato-Ku, Tokyo, Japan, to Ulba Metallurgical Plant in Ust-Kamengorsk, Kazakhstan. The material, which is currently located at Nuclear Fuels Industries, Ltd. in Japan, will be transferred to Ulba Metallurgical Plant for the purpose of recovering uranium from fuel fabrication scrap for return to Japan where it will be fabricated into fuel pellets to be used by Kansai Electric Power Co., in Osaka, Japan. The material was originally obtained by Nuclear Fuel Industries, Ltd. from nuclear fuel manufacturers in the United States pursuant to several Nuclear Regulatory Commission licenses.
In accordance with section 131a.of the Atomic Energy Act of 1954, as amended, it has been determined that this subsequent arrangement concerning the retransfer of nuclear material of United States origin will not be inimical to the common defense and security.
For the Department of Energy.
Bonneville Power Administration (BPA), Department of Energy (DOE).
Notice of Availability of Record of Decision (ROD).
This notice announces the availability of the ROD to implement the Proposed Action Alternative, based on the Albany-Eugene Transmission Line Rebuild Project (DOE/EIS–0457, March 2012). BPA has decided to rebuild a 32-mile section of the existing Albany-Eugene 115-kV transmission line that extends from the Albany Substation in the City of Albany in Linn County, Oregon, to the Alderwood Tap near Junction City in Lane County, Oregon. Rebuild activities will include removing and replacing existing wood-pole structures and associated structural components and conductors, establishing better access to the line, improving access roads, developing staging areas for storage of materials, removing vegetation including danger trees, and revegetating areas disturbed by construction activities. The existing structures will be replaced with structures of similar design within or near to their existing locations. The line will continue to operate at 115 kV.
Copies of the ROD and EIS may be obtained by calling BPA's toll-free document request line, 1–800–622–4520. The ROD and EIS Summary are also available on our Web site,
Douglas Corkran, Bonneville Power Administration—KEC–4, P.O. Box 3621, Portland, Oregon 97208–3621; toll-free telephone number 1–800–622–4519; fax number 503–230–5699; or email
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Submission for the Office of Management and Budget (OMB) review; comment request.
The Department of Energy (DOE) has submitted an information collection request to the OMB for extension under the provisions of the Paperwork Reduction Act of 1995. The information collection requests a three-year extension of its Historic Preservation for Energy Efficiency Programs, OMB Control Number 1910–5155. The proposed collection will allow DOE to continue data collection on the status of Weatherization Assistance Program (WAP), State Energy Program (SEP) and Energy Efficiency and Conservation Block Grant (EECBG) Program activities to ensure that recipients are compliant with Section 106 of the National Historic Preservation Act (NHPA).
Comments regarding this collection must be received on or before July 13, 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, please advise the OMB Desk Officer of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at 202–395–4650.
Written comments should be sent to the DOE Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street NW., Washington, DC 20503; and to Christine Platt Patrick, EE–2K, U.S. Department of Energy, 1000 Independence Ave. SW., Washington, DC 20585, Email:
Christine Platt Patrick, EE–2K, U.S. Department of Energy, 1000 Independence Ave. SW., Washington, DC 20585, Email:
Additional information and reporting guidance concerning the Historic Preservation reporting requirement for the WAP, SEP and EECBG are available for review at the following Web site:
This information collection request contains: (1)
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, it must also serve a copy of the document on that resource agency.
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m. This filing is available for review and reproduction at the Commission in the Public Reference Room, Room 2A, 888 First Street NE., Washington, DC 20426. The filing may also be viewed on the Web at
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q. All filings must (1) bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “COMMENTS”, “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 30 days from the date of filing of the application, and serve a copy of the request on the applicant.
l.
All documents may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
m. The application is not ready for environmental analysis at this time.
n. The proposed Gartina Falls project would consist of: (1) A 56-foot-long, 14-foot-high concrete diversion structure at the head of Gartina Falls; (2) a sluiceway constructed on the left side of the center diversion section to convey flow to an intake chamber; (3) an approximately 54-inch-diameter, 225-foot-long steel penstock that would convey water from the intake chamber to the powerhouse; (4) a powerhouse containing a single 445-kilowatt cross-flow turbine/generator unit, discharging flows directly to Gartina Creek; (5) an approximately 3.8-mile-long, 12.5-kilovolt transmission line; (6) an approximately 0.5-mile-long access road; and (7) appurtenant facilities. The estimated annual generation output for the project is 1.81 gigawatt-hours.
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
p.
Issue Notice of Acceptance—June 2012.
Issue Scoping Document 1 for comments—July 2012.
Issue notice of ready for environmental analysis—December 2012.
Commission issues final EA or final EIS—April 2013.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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h. Applicant Contacts: Dan Cokley, Schmueser Gordon Meyer, 118 W. 6th Street, Glenwood Springs, CO 81601; Mr. Ryan Broshar, SRA International, 12600 Colfax Ave. W., Lakewood, CO 80304, (303) 233–1275.
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j. Status of Environmental Analysis: This application is ready for environmental analysis at this time, and the Commission is requesting comments, reply comments, recommendations, terms and conditions, and prescriptions.
k.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, it must also serve a copy of the document on that resource agency.
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m. This filing is available for review and reproduction at the Commission in the Public Reference Room, Room 2A, 888 First Street NE., Washington, DC 20426. The filing may also be viewed on the web at
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q. All filings must (1) bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “COMMENTS”, “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Any of these documents must be filed by providing the original and seven copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Office of Energy Projects, Federal Energy Regulatory Commission, at the above address. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in
r.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Description: Consolidated Edison Company of New York, Inc notifies the Commission that it is cancelling FERC Rate Schedule No. 78 (RS 78) and FERC Rate Schedule No. 102 (RS 102).
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that Qualified Hydro 24, LLC, filed a request on June 4, 2012, to surrender the preliminary permit for the proposed Cle Elum Hydroelectric Project. The project would have been located at the U.S. Bureau of Reclamation's Cle Elum dam on the Cle Elum River near Cle Elum, in Kittitas County, Washington. By separate notice,
This is a supplemental notice in the above-referenced proceeding of Duke Energy Piketon, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Duke Energy Zimmer, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of EverPower Commercial Services LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Pacific Wind Lessee, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Duke Energy Dicks Creek, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC
This is a supplemental notice in the above-referenced proceeding of Duke Energy Conesville, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Duke Energy Beckjord, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Independence Electricity's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Duke Energy Stuart, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Duke Energy Miami Fort, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC
This is a supplemental notice in the above-referenced proceeding of Big Savage, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Duke Energy Killen, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the following application has been filed with the Commission and is available for public inspection:
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All documents should be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at
Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at
k.
When a Petition for Declaratory Order is filed with the Federal Energy Regulatory Commission, the Federal Power Act requires the Commission to investigate and determine if the interests of interstate or foreign commerce would be affected by the proposed project. The Commission also determines whether or not the project: (1) Would be located on a navigable waterway; (2) would occupy or affect public lands or reservations of the United States; (3) would utilize surplus water or water power from a government dam; or (4) if applicable, has involved or would involve any construction subsequent to 1935 that may have increased or would increase the project's head or generating capacity, or have otherwise significantly modified the project's pre-1935 design or operation.
l. Locations of the Application: Copies of this filing are on file with the Commission and are available for public inspection. This filing may be viewed on the web at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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On May 10, 2012, Dolores Water Conservancy District, Colorado, filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Plateau Creek Pumped Storage Project to be located on Plateau Creek, near the town of Dolores, Montezuma County, Colorado. The project affects federal lands administered by the Forest Service (San Juan National Forest). The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following new facilities: (1) An upper reservoir, formed by a 130-foot-high by 6,500-foot-long, roller-compacted concrete (RCC) or embankment dam, with a total storage capacity of 8,000 acre-feet and a water surface area of 275 acres at full pool elevation; (2) a lower reservoir, formed by a 270-foot-high by 800-foot-long dam, having a total storage capacity of 9,500 acre-feet and a water surface area of 200 acres at full pool elevation; (3) two 15-foot-diameter steel penstocks consisting of a surface penstock, a vertical shaft, and an inclined tunnel; (4) two 27-foot-diameter tailrace tunnels that would be 850-feet-long; (5) an underground powerhouse containing two reversible pump-turbines totaling 500 megawatts (MW) (2 units x 250 MW) of generating capacity; and (6) a 7-mile-long, 230 kilovolt (kV) transmission line that would connect the switchyard with an existing 230 kV interconnection east of the project area. The project's annual energy output would vary between 600 and 1,500 gigawatthours.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, EPA is issuing a notice of receipt of requests by registrants to voluntarily cancel certain pesticide registrations. EPA intends to grant these requests at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the requests, or unless a registrant withdraws its request. If these requests are granted, any sale, distribution, or use of products listed in this notice will be permitted after the registrations have been cancelled only if such sale, distribution, or use is consistent with the terms as described in the final order.
Comments must be received on or before July 13, 2012.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2009–1017, by one of the following methods:
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Katie Weyrauch, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–0166; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. If you have any questions regarding the information in this notice, consult the person listed under
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This notice announces receipt by the Agency of requests from registrants to cancel 122 pesticide products registered under FIFRA section 3 or 24(c). These registrations are listed in sequence by registration number (or company number and 24(c) number) in Tables 1 and 2 of this unit.
Table 2 contains a list of registrations for which companies paying at one of the maintenance fee caps requested cancellation in the FY 2012 maintenance fee billing cycle. Because maintaining these registrations as active would require no additional fee, the Agency is treating these requests as voluntary cancellations under 6(f)(1).
Unless the Agency determines that there are substantive comments that warrant further review of the requests or the registrants withdraw their requests, EPA intends to issue an order in the
Table 3 of this unit includes the names and addresses of record for all registrants of the products in Tables 1 and 2 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in this unit.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be cancelled. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Section 6(f)(1)(B) of FIFRA requires that before acting on a request for voluntary cancellation, EPA must
1. The registrants request a waiver of the comment period, or
2. The EPA Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The registrants in Table 3 of Unit II., have requested that EPA waive the 180-day comment period. Accordingly, EPA will provide a 30-day comment period on the proposed requests.
Registrants who choose to withdraw a request for cancellation should submit such withdrawal in writing to the person listed under
Existing stocks are those stocks of registered pesticide products which are currently in the United States and which were packaged, labeled, and released for shipment prior to the effective date of the cancellation action. Upon cancellation of the products identified in Tables 1 and 2 of Unit II, the Agency will allow existing stocks provisions as follows:
The Agency anticipates allowing registrants to sell and distribute existing stocks of these products for 1 year after the publication of the Cancellation Order in the
The effective date of cancellation will be the date of the cancellation order. The Agency anticipates allowing registrants to sell and distribute existing stocks of these products until January 13, 2013, 1 year after the date on which the maintenance fee was due. Thereafter, registrants will be prohibited from selling or distributing the pesticides identified in Table 2 of Unit II., except for export consistent with FIFRA section 17 or for proper disposal. Persons other than registrants will generally be allowed to sell, distribute, or use existing stocks until such stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the cancelled products.
Environmental protection, Pesticides and pests.
Export-Import Bank of the U.S.
Submission for OMB Review and Comments Request.
The Export-Import Bank of the United States (Ex-Im Bank), as a part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
Ex-Im Bank's borrowers, financial institution policy holders and guaranteed lenders provide this form to U.S. exporters, who certify to the eligibility of their exports for Ex-Im Bank support. For direct loans and loan guarantees, the completed form is required to be submitted at time of disbursement and held by either the guaranteed lender or Ex-Im Bank. For MT insurance, the completed forms are held by the financial institution, only to be submitted to Ex-Im Bank in the event of a claim filing. Ex-Im Bank believes that EIB 11–05 requires emergency approval in order to continue operation of its long- and medium-term financing programs. It is an integral component of the programs and is heavily used.
Lack of an emergency approval of this form would preclude our ability to continue operation of its long- and medium-term financial institution programs. Ex-Im Bank developed the referenced form to obtain exporter certifications regarding the export transaction, content sourcing, and their eligibility to participate in USG programs. These details are necessary to determine the value and legitimacy of Ex-Im Bank financing support and claims submitted. It also provides the financial institutions a check on the export transaction's eligibility at the time it is fulfilling a financing request.
Accordingly, Ex-Im Bank requests emergency approval of EIB 11–05 in order to continue operation of these important export programs. The form can be view at:
Comments should be received on or before August 13, 2012 to be assured of consideration.
Comments may be submitted electronically on
Titles and Form Number EIB 11–05 Exporter's Certificate For Direct Loan, Loan Guarantee & MT Insurance Programs.
Farm Credit System Insurance Corporation.
Notice is hereby given of the regular meeting of the Farm Credit System Insurance Corporation Board (Board).
The meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on June 14, 2012, from 1:00 p.m. until such time as the Board concludes its business.
Dale L. Aultman, Secretary to the Farm Credit System Insurance Corporation Board, (703) 883–4009, TTY (703) 883–4056.
Farm Credit System Insurance Corporation, 1501 Farm Credit Drive, McLean, Virginia 22102.
Parts of this meeting of the Board will be open to the public (limited space available) and parts will be closed to the public. In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
Notice Is Hereby Given that the Federal Deposit Insurance Corporation (“FDIC”) as Receiver for Bramble Savings Bank, (“the Receiver”) intends to terminate its receivership for said institution. The FDIC was appointed receiver of Bramble Savings Bank on September 17, 2010. The liquidation of the receivership assets has been completed. To the extent permitted by available funds and in accordance with law, the Receiver will be making a final dividend payment to proven creditors.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 8.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for a license as a Non-Vessel-Operating Common Carrier (NVO) and/or Ocean Freight Forwarder (OFF)—Ocean Transportation Intermediary (OTI) pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. chapter 409 and 46 CFR 515). Notice is also hereby given of the filing of applications to amend an existing OTI license or the Qualifying Individual (QI) for a license.
Interested persons may contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573, by telephone at (202) 523–5843 or by email at
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. Chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515, effective on the corresponding date shown below:
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than June 28, 2012.
A. Federal Reserve Bank of Minneapolis (Jacqueline G. King, Community Affairs Officer) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 9, 2012.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 9, 2012.
A. Federal Reserve Bank of Philadelphia (William Lang, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105–1521:
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 28, 2012.
A. Federal Reserve Bank of San Francisco (Kenneth Binning, Vice President, Applications and Enforcement) 101 Market Street, San Francisco, California 94105–1579:
1.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
By Direction of the Commission.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before July 9, 2012.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Jessica Lyon (202–326–2344), FTC, Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for June 7, 2012), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before July 9, 2012. Write AEPN, File No. 112 3143” on your comment. Your comment B including your name and your state B will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write AEPN, File No. 112 3143” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H–113 (Annex D), 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission has accepted, subject to final approval, a consent agreement from EPN, Inc.
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.
The Commission's proposed complaint alleges that EPN, which does business as Checknet, Inc., is a Utah corporation that is in the business of collecting debts for clients in a variety of industries, including commercial credit, retail, and healthcare. According to the complaint, In conducting business, EPN routinely obtains information about its clients' customers, which includes, but is not limited to: name, address, date of birth, gender, Social Security number, employer address, employer phone number, and in the case of healthcare clients, physician name, insurance number, diagnosis code, and medical visit type.
The complaint further alleges that EPN engaged in a number of practices that, taken together, failed to provide reasonable and appropriate security for personal information on its computers and networks. In particular, EPN failed to: (1) Adopt an information security plan that was appropriate for its networks and the personal information processed and stored on them; (2) assess risks to the consumer personal information it collected and stored online; (3) adequately train employees about security to prevent unauthorized disclosure of personal information; (4) use reasonable measures to assess and enforce compliance with its security policies and procedures, such as scanning networks to identify unauthorized peer-to-peer (“P2P”) file sharing applications and other unauthorized applications operating on the networks or blocking installation of such programs; and (5) use reasonable methods to prevent, detect, and investigate unauthorized access to personal information on its networks, such as by adequately logging network activity and inspecting outgoing transmissions to the Internet to identify unauthorized disclosures of personal information.
The complaint alleges that as a result of these failures, an EPN employee was able to install a P2P application on her desktop computer, which was connected to EPN's computer network, resulting in two files containing personal information about a client's customers being made available on a P2P network; other files containing personal information may also have been shared to P2P networks from that computer. The breached files contained personal information about approximately 3,800 consumers, including each consumer's name, address, date of birth, Social Security number, employer name, employer address, health insurance number, and a diagnosis code. The complaint alleges that such information, among other things, can easily be used to facilitate identity theft (which also could result in medical histories that are inaccurate because they include the medical records of identity thieves) and exposes sensitive medical data.
In fact, the presence of P2P software on business computers can pose significant data security risks. A 2010 FTC examination of P2P-related breaches uncovered a wide range of sensitive consumer data available on P2P networks, including health-related information, financial records, and drivers' license and Social Security numbers.
According to the complaint, EPN's failure to employ reasonable and appropriate measures to prevent unauthorized access to personal information caused, or is likely to cause substantial injury to consumers that is not offset by countervailing benefits to consumers or competition and is not reasonably avoidable by consumers. Therefore, EPN's practices were, and are an unfair act or practice, in or affecting commerce, in violation of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. 45(a).
The proposed order contains provisions designed to prevent EPN from engaging in the future in practices similar to those alleged in the complaint.
Part I of the proposed order prohibits misrepresentations about the privacy, security, confidentiality, and integrity of
Parts IV through VIII of the proposed order are reporting and compliance provisions. Part IV requires EPN to retain documents relating to its compliance with the order. For most records, the order requires that the documents be retained for a five-year period. For the third party assessments and supporting documents, EPN must retain the documents for a period of three years after the date that each assessment is prepared. Part V requires dissemination of the order now and in the future to persons with responsibilities relating to the subject matter of the order. Part VI ensures notification to the FTC of changes in corporate status. Part VII mandates that EPN submit a compliance report to the FTC within 90 days, and periodically thereafter as requested. Part VIII is a provision “sunsetting” the order after twenty (20) years, with certain exceptions.
The purpose of the analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.
By direction of the Commission.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before July 9, 2012.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Karen Jagielski (202–326–2509), FTC, Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and 2.34 the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for June 7, 2012), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before July 9, 2012. Write “Franklin Auto Mall, File No. 102 3094” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Franklin Auto Mall, File No. 102 3094” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary,
Visit the Commission Web site at
The Federal Trade Commission has accepted, subject to final approval, a consent agreement from Franklin's Budget Car Sales, Inc., also doing business as Franklin Toyota/Scion (“Franklin Toyota”).
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.
The Commission's proposed complaint alleges that Franklin Toyota, a Georgia corporation, is a franchise automobile dealership that sells both new and used automobiles, leases automobiles, provides repair services for automobiles, and sells automobile parts. In connection with its automobile sales, Franklin Toyota also provides financing services to individual consumers. The complaint alleges that In the course of its business, Franklin Toyota routinely collects personal information from or about its customers, including but not limited to names, Social Security numbers, addresses, telephone numbers, dates of birth, and drivers' license numbers. The complaint alleges that Franklin Toyota is a “financial institution” as defined in the Gramm-Leach-Bliley (“GLB”) Act, 15 U.S.C. § 6801
According to the complaint, Franklin Toyota engaged in a number of practices that, taken together, failed to provide reasonable and appropriate security for personal information on its computers and networks. In particular, Franklin Toyota failed to: (1) Assess risks to the consumer personal information it collected and stored online; (2) adopt policies, such as an incident response plan, to prevent, or limit the extent of, unauthorized disclosure of personal information; (3) use reasonable methods to prevent, detect, and investigate unauthorized access to personal information on its networks, such as inspecting outgoing transmissions to the Internet to identify unauthorized disclosures of personal information; (4) adequately train employees about information security to prevent unauthorized disclosures of personal information; and (5) employ reasonable measures to respond to unauthorized access to personal information on its networks or to conduct security investigations where unauthorized access to information occurred.
The complaint alleges that as a result of these failures, Franklin Toyota customers' personal information was accessed and disclosed on peer-to-peer (“P2P”) networks by a P2P application installed on a computer connected to Franklin Toyota's computer network. The complaint alleges that information for approximately 95,000 consumers, including but not limited to consumers' names, Social Security numbers, addresses, dates of birth, and drivers' license numbers, was made available on a P2P network. Such information can easily be used to facilitate identity theft and fraud.
Files shared to a P2P network are available for viewing or downloading by anyone using a personal computer with access to the network. Generally, a file that has been shared cannot be permanently removed from P2P networks.
In fact, the use of P2P software poses very significant data security risks to consumers. A 2010 FTC examination of P2P-related breaches uncovered a wide range of sensitive consumer data available on P2P networks, including health-related information, financial records, and drivers' license and social security numbers.
According to the complaint, Franklin Toyota violated the GLB Safeguards Rule by, among other things, failing to identify reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of customer information; design and implement information safeguards to control the risks to customer information and failing to regularly test and monitor them; investigate, evaluate, and adjust the information security program in light of known or identified risks; develop, implement, and maintain a comprehensive written information security program; and designate an employee to coordinate the company's information security program.
In addition, the proposed complaint alleges that Franklin Toyota misrepresented that it implements reasonable and appropriate measures to protect consumers' personal information from unauthorized access, in violation of Section 5 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. 45(a). Furthermore, the proposed complaint alleges that Franklin violated the GLB Privacy Rule by failing to send consumers annual privacy notices and by failing to provide a mechanism by which consumers could opt out of information sharing with nonaffiliated third parties.
The proposed order contains provisions designed to prevent Franklin Toyota from engaging in the future in practices similar to those alleged in the complaint.
Part I of the proposed order prohibits misrepresentations about the privacy, security, confidentiality, and integrity of any personal information collected from or about consumers. Part II of the proposed order prohibits Franklin Toyota from violating any provision of the GLB Act's Standards for Safeguarding Consumer Information Rule (“Safeguards Rule”), 16 CFR part 314, or the GLB Act's Privacy of Consumer Financial Information Rule (“Privacy Rule”), 16 CFR part 313. Part III requires Franklin Toyota to establish, implement, and thereafter maintain a comprehensive information security program, including the designation of an employee to oversee Franklin Toyota's security program, employee training, and implementation of reasonable safeguards. Part IV of the order requires Franklin Toyota to obtain, for a period of twenty years, biennial assessments of its information security program from an independent third-party professional possessing certain credentials or certifications.
Parts V through IX of the proposed order are reporting and compliance provisions. Part V requires Franklin
The purpose of the analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.
By direction of the Commission.
Public Buildings Service (PBS), General Services Administration (GSA).
Notice of a bulletin.
The attached bulletin announces the designation and redesignation of three Federal buildings.
U.S. General Services Administration, Public Buildings Service (PBS), 1800 F Street NW., Washington, DC 20405, telephone number: (202) 501–1100.
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Division of the National Toxicology Program (DNTP), National Institute of Environmental Health Sciences (NIEHS), National Institutes of Health (NIH).
Availability of Report.
The NTP Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM) announces the availability of the
The
The
Requests for copies of the report should be sent by mail, fax, or email to Dr. William S. Stokes, Director, NICEATM, NIEHS, P.O. Box 12233, Mail Stop: K2–16, Research Triangle Park, NC 27709, (telephone) 919–541–2384, (fax) 919–541–0947, (email)
Dr. William S. Stokes, NICEATM Director (phone 919–541–2384 or
The ICCVAM Authorization Act of 2000 established ICCVAM as a permanent interagency committee of NIEHS under NICEATM. The Act directs ICCVAM to coordinate interagency technical reviews of proposed new, revised, and alternative testing methods, including those that may reduce, refine (enhance animal well-being and lessen or avoid pain and distress), and replace animal use. ICCVAM prepares test method recommendations based on their scientific validity for regulatory safety testing, and submits these recommendations through the HHS Secretary (or designee) to U.S. Federal Agencies for adoption decisions.
A provision of the ICCVAM Authorization Act states that ICCVAM shall prepare “reports to be made available to the public on its progress under this Act,” with the first report to be completed within 12 months of enactment of the Act, and subsequent reports to be made biennially thereafter. The fifth ICCVAM biennial progress report, which summarizes ICCVAM activities and accomplishments for the years 2010 and 2011, is now available.
The
Selected highlights of NICEATM and ICCVAM activities described in the
• On behalf of NICEATM and ICCVAM, NIEHS signed an amendment to an international cooperation agreement to add the Republic of Korea and its Korean Center for the Validation of Alternative Methods (KoCVAM) to the International Cooperation on Alternative Test Methods (ICATM). ICATM was established in 2009 by the United States, the European Union, Japan, and Canada to expedite the worldwide validation and regulatory acceptance of improved alternative test methods.
• The Organisation for Economic Co-operation and Development (OECD) adopted an international guidance document prepared by NICEATM and ICCVAM that describes how to use two cytotoxicity assays to reduce animal use for testing required to determine the poisoning potential of chemicals. NICEATM led the international validation studies for the two cytotoxicity assays, which can reduce animal use by up to 50% for each test.
• Federal agencies and the OECD adopted several new versions and applications of the murine local lymph node assay (LLNA); an alternative method recommended by ICCVAM to assess whether substances may cause allergic contact dermatitis. The test methods reduce animal use for each test by 20–40% and support expanded use of the LLNA for nearly all testing situations. Two new “green” versions of the LLNA were adopted that do not require radioactive reagents and will allow expanded use of the LLNA in laboratories worldwide.
• Federal agencies adopted ICCVAM recommended alternative test methods and procedures that will further reduce, refine, and replace animal use for eye safety testing. These include the routine use of medications to avoid most if not all pain and distress when it is necessary to use animals for required safety testing, and the first
• NICEATM, ICCVAM, and their ICATM partners convened the first international workshop on alternative methods for human and veterinary vaccine potency and safety testing. The workshop reviewed the state of the science of alternative methods, and recommended priority research needed to develop improved and more efficient test methods that can also reduce, refine, and replace animal use. A focused workshop on human and veterinary rabies vaccine test methods was held in 2011 and additional focused workshops are planned for 2012 and 2013.
• ICCVAM completed international evaluation of an
• NICEATM and ICCVAM convened two Best Practices for Regulatory Safety Testing Workshops to promote the use of improved and more efficient test methods that can also reduce, refine, and replace animal use. Participants learned how to select and use approved alternative methods to assess the safety or potential hazards of chemicals and products.
ICCVAM is an interagency committee composed of representatives from 15 Federal regulatory and research agencies that require, use, generate, or disseminate toxicological and safety testing information. ICCVAM conducts technical evaluations of new, revised, and alternative safety testing methods with regulatory applicability and promotes the scientific validation and regulatory acceptance of toxicological and safety testing methods that more accurately assess the safety and hazards of chemicals and products and that reduce, refine (enhance animal well-being and lessen or eliminate pain and distress), or replace animal use. The ICCVAM Authorization Act of 2000 (42 U.S.C. 285
Division of National Toxicology Program (DNTP), National Institute of Environmental Health Sciences (NIEHS), National Institutes of Health (NIH).
Availability of Draft Plan, Request for Comments
The National Toxicology Program (NTP) Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM) in collaboration with the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) has developed a draft NICEATM–ICCVAM Five-Year Plan. The plan describes four core strategies to foster and promote development, validation, and regulatory acceptance of scientifically sound alternative test methods by the Federal government and by other governments and multinational organizations. This document will provide strategic direction for NICEATM and ICCVAM during 2013–2017.
NIEHS and NICEATM request public comments on the draft 2013–2017 Five-Year Plan, which is available at
The draft plan is available on the NICEATM–ICCVAM Web site at
Dr. William S. Stokes, Director, NICEATM, NIEHS, P.O. Box 12233, Mail Stop: K2–16, Research Triangle Park, NC, 27709, (telephone) 919–541–2384, (fax) 919–541–0947, (email)
Emerging scientific advances and technology innovations are driving transformative changes in toxicology and how safety testing is performed. The field of toxicology is evolving from a system based largely on animal testing toward one based on the integration of data from a wide range of sources, including
Congress established ICCVAM to promote the regulatory acceptance of new or revised scientifically valid toxicological test methods that protect human and animal health and the environment while reducing, refining (enhancing animal well-being and lessening or avoiding pain and distress), or replacing animal tests and ensuring human safety and product effectiveness. As directed by the ICCVAM Authorization Act (42 U.S.C. 285
In 2008, NICEATM and ICCVAM published the NICEATM–ICCVAM Five-Year Plan (2008–2012), which addressed ICCVAM's vision to play a leading role in fostering and promoting the development, validation, and regulatory acceptance of scientifically sound alternative test methods both within the Federal government and internationally (ICCVAM, 2008). NICEATM and ICCVAM have now prepared a draft plan to provide strategic direction for NICEATM and ICCVAM in accomplishing their purposes, duties, and mission for the years 2013–2017. In preparing this plan, NICEATM and ICCVAM considered information and comments submitted by member agencies and comments submitted in response to a
The draft plan outlines how, consistent with ICCVAM's statutory duties and purposes, NICEATM and ICCVAM will foster and promote the incorporation of scientific advances and innovative technologies into new improved test methods and strategies, and contribute to the transformation of toxicology. The draft plan describes four broad strategic opportunities for NICEATM and ICCVAM to foster and promote development, validation, and regulatory acceptance of scientifically sound alternative test methods by the Federal government and other organizations:
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The years 2013–2017 will be an essential transition period for NICEATM and ICCVAM in this transforming regulatory toxicology environment. For example, data from
NIEHS and NICEATM invite public comments from all ICCVAM stakeholders for consideration by ICCVAM and ICCVAM agencies' program offices on the draft 2013–2017 Five-Year Plan. The draft plan can be found on the NICEATM–ICCVAM Web site at
NICEATM prefers that comments be submitted electronically via a form on the NICEATM–ICCVAM Web site at
ICCVAM is an interagency committee composed of representatives from 15 Federal regulatory and research agencies that require, use, generate, or
The ICCVAM Authorization Act of 2000 (42 U.S.C. 285
NICEATM and ICCVAM welcome the public nomination of new, revised, and alternative test methods and strategies for validation studies and technical evaluations. Additional information about NICEATM and ICCVAM can be found on the NICEATM–ICCVAM Web site (
ICCVAM. 2008. The NICEATM–ICCVAM Five-Year Plan (2008–2012). A plan to advance alternative test methods of high scientific quality to protect and advance the health of people, animals, and the environment. NIH Publication No. 08–6410. Research Triangle Park, NC: NIEHS.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Adapting Best Practices for Medicaid Readmissions.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501–3521, AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by July 13, 2012.
Written comments should be submitted to: AHRQ's OMB Desk Officer by fax at (202) 395–6974 (attention: AHRQ's desk officer) or by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427–1477, or by email at
One particular mission of AHRQ is to improve the efficiency of health care through reducing unnecessary health care costs while maintaining or improving quality. The proposed data collection supports this goal through developing strategies to assist safety net hospitals in reducing readmissions for Medicaid patients. Previous research has shown that a focus on transitional care, including needs assessment, discharge planning, post-discharge intervention, and care coordination can reduce avoidable readmissions. Based on this evidence, there have been a number of strategies and resources developed for hospitals to reduce avoidable readmissions, including:
• The Aging & Disability Resource Centers Evidence-Based Care Transitions program by the Administration on Aging & CMS to support state efforts in implementing evidence-based care transition models for older adults and individuals with disabilities.
• The State Action on Avoidable Rehospitalizations (STAAR) initiative by the Institute for Healthcare Improvement to improve care transitions and care coordination through state-based multi-stakeholder collaborative efforts.
• The Hospital-to-Home (H2H) initiative by the American College of Cardiology to reduce readmissions for patients with cardiovascular conditions.
• Project Re-Engineered Discharge (RED), funded by AHRQ and the National Institutes of Health (NIH) National Heart, Lung, and Blood Institute, to reduce re-hospitalizations by improving hospital discharge processes.
However, the majority of these strategies and resources focuses on general patient populations or specifically targets the elderly and/or disabled, primarily Medicare populations. Recent research finds that rates of readmission among Medicaid-insured non-elderly adults equals that of the elderly, Medicare-insured population and is 60 percent higher than a privately-insured population. It is not known whether existing resources and strategies to reduce readmissions address the circumstances and characteristics of Medicaid-insured patients. Particular socio-demographic characteristics more prevalent in populations insured through Medicaid, such as low-income, racial and ethnic minority, low literacy, housing instability, mental illness, substance abuse disorders, chronic and disabling conditions, language barriers, and discontinuous insurance coverage may mean that strategies for reducing readmissions need to be tailored specifically to the unique needs of this population.
Additionally, safety net hospitals, which serve large populations of the most vulnerable in society and where Medicaid is often a major payer, face unique conditions. Not only do they serve more vulnerable populations, they are often constrained by their financing and governance structures. Safety net hospitals generally operate on lower
This project will recruit six safety net hospitals to assess the existing resources and strategies and suggest and test modifications to address the particular circumstances related to Medicaid readmissions and safety net hospital settings. The goals of this project are to:
• Identify factors at the patient, provider, and community levels that especially contribute to hospital readmissions for Medicaid patients;
• Assess and test existing strategies to reduce avoidable readmissions for their adequacy and applicability to Medicaid-insured populations and safety net hospital settings;
• Modify and test modifications of existing strategies as necessary for applicability to Medicaid-insured populations and safety net hospital settings; and
• Develop a package of revised strategies for reducing avoidable readmissions that are specific to the factors contributing to Medicaid-insured patient readmissions in safety net settings.
Four cycles of testing will be conducted to collect data on samples of patient readmissions in each of the participating hospitals. The data will be collected and analyzed by the hospital staff after each cycle. The first cycle will identify factors related to Medicaid readmissions, as well as establishing baseline measures, while the next 3 cycles will be a quality improvement effort to test the existing strategies, or modifications to existing strategies, to address the factors identified in the first cycle. Each cycle will use a different sample of Medicaid readmission patients.
This study is being conducted by AHRQ through its contractor, John Snow, Inc. (JSI), pursuant to AHRQ's statutory authority to conduct and support research on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of healthcare services and with respect to quality measurement and improvement. 42 U.S.C. 299a(a)(1) and (2).
To achieve the goals of this project the following data collections will be implemented:
(1) Medical records review—The medical records review will gather background information about a patient's index admission and readmission. Data to be abstracted from the medical record includes patient demographic information, living arrangements, dates and timing of index and readmissions, lengths of stay, diagnoses on admission, source of admission, discharge disposition, and other transition factors, as well as the name and setting of the patient's primary care provider (PCP), and whether an appointment was made with the PCP before discharge.
(2) Patient/family/caregiver interview—After completion of the patient's medical record review, interviews will be conducted with the patient and a family member or caretaker (using the same tool for all) who has permission to discuss the patient's case. The purpose of the patient/family/caregiver interviews is to obtain the patient/family perspective, in their own words, of their index admission, their transition period, and their readmission. Data to be collected includes perspectives on reasons for readmission, discharge experience, extent to which they were able to follow any discharge instructions provided, setting to which they were discharged, and any other assistance needed.
(3) Provider interview—Provider interviews will complete the patient readmission data. Two providers involved in each readmission case will be interviewed. Providers are likely to be from the hospital setting (e.g., hospitalists, admitting physicians, emergency room physicians) but also may be from the larger care community (e.g., primary care, skilled nursing facility, home health). Providers selected will change from case to case, although any particular provider may be asked about more than one readmission over the course of the project. Providers will be asked why they believe the patient was readmitted and what they think could have been done to avoid the readmission.
The purpose of the primary data collections is to add insight and direct patient/family and provider input and experience into all phases of the project. The first data collection will provide patient/family and provider insight into the process of identifying factors related to Medicaid readmissions. Based on these factors, existing readmissions strategies will be assessed for their suitability in addressing these factors. Participating hospitals will then select existing or modified strategies to test in their settings using a rapid cycle QI process. Primary data collection will occur during each of the three testing cycles for purposes of gathering patient and provider insight into the factors associated with readmissions of Medicaid patients and gauging the extent to which the modified strategies would be able to address those factors.
Exhibit 1 shows the estimated annualized burden for the respondent's time to participate in the project. The medical records review will be performed by one QI nurse at each of the 6 participating hospitals for 80 readmission cases (20 from each of 4 cycles) and will take about 20 minutes per case. In that the primary data collections are intended to inform the factors related to Medicaid readmissions and inform the testing of existing or modified strategies, there is no set number of readmissions cases required during each of the four data collection cycles. Participating hospitals will be instructed that it is a process that should continue until patterns of response converge and little new information is being learned, with 20 cases as the maximum during any one of the four cycles of data collection.
For each readmission case interviews will be conducted by the QI nurse with a total of 120 patients and family member or care giver (20 of each from each of the 6 hospitals) during each of the 4 cycles of data collection. The interviews are estimated to require 10 minutes each. The QI nurse will also conduct interviews with 2 providers associated with each readmission case (a total of 240 providers across the 6 hospitals) during each of the 4 cycles and will take about 5 minutes. The total burden is estimated to be 640 hours annually.
Exhibit 2 shows the estimated cost burden associated with the respondent's time to participate in this project. The total cost burden is estimated to be $23,398 annually.
The total cost to the government is estimated to be $253,033, which includes costs for project development, data collection, data analysis, publication, project management, and overhead as shown in Exhibit 3. The data collection occurs throughout the 2.5 year project term (30 months); thus, it has an estimated annual cost of $101,212.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Medical Expenditure Panel Survey (MEPS) Household Component and the MEPS Medical Provider Component” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501–3521, AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by August 13, 2012.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427–1477, or by email at
For over thirty years, results from the MEPS and its predecessor surveys (the 1977 National Medical Care Expenditure Survey, the 1980 National Medical Care Utilization and Expenditure Survey and the 1987 National Medical Expenditure Survey) have been used by OMB, DHHS, Congress and a wide number of health services researchers to analyze health care use, expenses and health policy.
Major changes continue to take place in the health care delivery system. The MEPS is needed to provide information about the current state of the health care system as well as to track changes over time. The MEPS permits annual estimates of use of health care and expenditures and sources of payment for that health care. It also permits tracking individual change in employment, income, health insurance and health status over two years. The use of the National Health Interview Survey (NHIS) as a sampling frame expands the MEPS analytic capacity by providing another data point for comparisons over time.
Households selected for participation in the MEPS Household Component (MEPS–HC) are interviewed five times in person. These rounds of interviewing are spaced about 5 months apart. The interview will take place with a family respondent who will report for him/herself and for other family members.
The MEPS–HC has the following goal:
• To provide nationally representative estimates for the U.S. civilian noninstitutionalized population for health care use, expenditures, sources of payment and health insurance coverage.
The MEPS Medical Provider Component (MEPS–MPC) will contact medical providers (hospitals, physicians, home health agencies and institutions) identified by household respondents in the MEPS–HC as sources of medical care for the time period covered by the interview, and all pharmacies providing prescription drugs to household members during the covered time period. The MEPS–MPC is not designed to yield national estimates. The sample is designed to target the types of individuals and providers for whom household reported expenditure data was expected to be insufficient. For example, households with one or more Medicaid enrollees are targeted for inclusion in the MEPSMPC because this group is expected to have limited information about payments for their medical care.
The MEPS–MPC has the following goal:
• To provide an imputation source to supplement/replace household reported expenditure and source of payment information. This data will supplement, replace and verify information provided by household respondents about the charges, payments, and sources of payment associated with specific health care encounters.
This study is being conducted by AHRQ through its contractors, Westat and RTI International, pursuant to AHRQ's statutory authority to conduct and support research on healthcare and on systems for the delivery of such care, including activities with respect to the cost and use of health care services and with respect to health statistics and surveys. 42 U.S.C. 299a(a)(3) and (8); 42 U.S.C. 299b–2.
To achieve the goals of the MEPS–HC the following data collections are implemented:
1.
2.
3. Diabetes Care SAQ. A brief self administered paper-and-pencil questionnaire on the quality of diabetes care is administered once a year (during rounds 3 and 5) to persons identified as having diabetes. Included are questions about the number of times the respondent reported having a hemoglobin A1c blood test, whether the respondent reported having his or her feet checked for sores or irritations, whether the respondent reported having an eye exam in which the pupils were dilated, the last time the respondent had his or her blood cholesterol checked and whether the diabetes has caused kidney or eye problems. Respondents are also asked if their diabetes is being treated with diet, oral medications or insulin.
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To achieve the goal of the MEPS–MPC the following data collections are implemented:
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The MEPS is a multi-purpose survey. In addition to collecting data to yield annual estimates for a variety of measures related to health care use and expenditures, the MEPS also provides estimates of measures related to health status, consumer assessment of health care, health insurance coverage, demographic characteristics, employment and access to health care indicators. Estimates can be provided for individuals, families and population subgroups of interest. Data from the MEPS, both the HC and MPC components, are intended for a number of annual reports required to be produced by AHRQ, including the National Health Care Quality Report and the National Health Care Disparities Report.
Exhibit 1 shows the estimated annualized burden hours for the respondents' time to participate in the MEPS–HC and MEPS–MPC. The MEPS–HC Core Interview will be completed by 12,500 “family level” respondents, also referred to as RU respondents. Since the MEPS–HC consists of 5 rounds of interviewing covering a full two years of data, the annual average number of responses per respondent is 2.5 responses per year. The MEPS–HC core requires an average response time of 1
All 37,600 medical providers and pharmacies included in the MEPS–MPC will receive a screening call which will take 2 minutes on average. The MEPS–MPC uses 7 different questionnaires; 6 for medical providers and 1 for pharmacies. Each questionnaire is relatively short and requires 3 to 5 minutes to complete. The total annual burden hours for the MEPS–MPC are estimated to be 20,565 hours. The total annual burden hours for the MEPS–HC and MPC is estimated to be 75,280 hours.
Exhibit 2 shows the estimated annual cost burden associated with the respondents' time to participate in this information. The annual cost burden for the MEPS–HC is estimated to be $1,189,505; the annual cost burden for the MEPS–MPC is estimated to be $309,798. The total annual cost burden
Exhibit 3 shows the total and annualized cost of this information collection. The cost associated with the design and data collection of the MEPS–HC and MEPS–MPC is estimated to be $51,401,596 in each of the three years covered by this information collection request.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 and send comments to Kimberly S. Lane, CDC 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Comments are invited on (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
School Environment Study: Evaluating the Effects of CTG-supported School-based Nutrition and Physical Activity Policies on Students' Diet, Physical Activity, and Weight Status—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The Prevention and Public Health Fund (PPHF) of the Patient Protection and Affordable Care Act of 2010 (ACA) provides an important opportunity for states, counties, territories, and tribes to advance public health across the lifespan and to reduce health disparities. The PPHF authorizes Community Transformation Grants (CTG) for the implementation, evaluation, and dissemination of evidence-based community preventive health activities. The CTG program emphasizes five strategic directions: (1) Tobacco-free living; (2) active lifestyles and healthy eating; (3) high impact, evidence-based clinical and other preventive services; (4) social and emotional well-being; and (5) healthy and safe physical environments.
The CTG program is administered by the Centers for Disease Control and Prevention (CDC), National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP). As required by Section 4201 of the ACA, CDC is responsible for conducting a comprehensive evaluation of the CTG program which includes assessment over time of measures relating to each of the five strategic directions. CDC is requesting OMB approval to collect information needed for these assessments. This information collection will enable a multi-method evaluation of the school nutrition and physical activity environments and on related health indictors among students. The School Environment Study involves a quasi-experimental design that will assess nutrition-, physical activity-, and obesity-related outcomes and impacts, and compare differential changes in these outcomes and impacts between students sampled in middle schools supported by the CTG program and students sampled in middle schools not supported by the CTG program.
Four CTG program awardees (Broward County, Florida; Travis County, Texas; eight counties in Massachusetts (excludes the city of Boston and surrounding area); and Los Angeles County, California) were selected to participate in the School
The study design includes a five year data collection plan with three waves of data collection. Wave one (baseline data collection) will occur during the spring semester of the 2012–2013 school year; wave two (interim data collection) will occur during the spring semester of the 2014–2015 school year; and wave three (final data collection) will occur during the spring semester of the 2016–2017 school year. CDC plans to collect data from students, school staff (teachers and key stakeholders), and to conduct an observation of the school food environment.
The SNAPAS, teacher survey, and school food observation will occur during waves one, two, and three. The measurement of student height and weight, student supplemental data collections (i.e., dietary recalls and physical activity), and interviews with key stakeholders will be conducted during waves one and three only. A different sample of respondents will be selected at each wave of data collection.
The information to be collected will allow CDC to estimate the effectiveness of evidence- and practice-based policies and practices to improve healthy school environments and, in turn, the health of middle school students in U.S. public schools. The information will permit CDC to expand the existing evidence base on the capacity for policy- and systems-level changes to impact individual health.
OMB approval is requested for the first three years of the five-year CTG project period, i.e., waves one and two of planned data collection. OMB approval for wave three data collection will be requested in a future submission.
Participation is voluntary and there are no costs to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–7570 or send an email to
Use of Smartphones to Collect Information about Health Behaviors: Feasibility Study—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Despite the high level of public knowledge about the adverse effects of smoking, tobacco use remains the leading preventable cause of disease and death in the U.S., resulting in approximately 443,000 deaths annually. During 2005–2010, the overall proportion of U.S. adults who were current smokers declined from 20.9% to 19.3%. Despite this decrease, smoking rates are still well above Healthy People 2010 targets for reducing adult smoking prevalence to 12%, and the decline in prevalence was not uniform across the population. Timely information on tobacco usage is needed for the design, implementation, and evaluation of public health programs.
The evolution of completely new, completely mobile communications technologies provides a unique opportunity for innovation in public health. Text messaging and smartphone web access are immediate, accessible, and anonymous, a combination of features that could make smartphones ideal for the ongoing research, surveillance, and evaluation of risk behaviors and health conditions, as well as targeted dissemination of information.
CDC proposes to conduct a feasibility study to identify and evaluate the process of conducting surveys by text message and smartphone, the outcomes of the surveys, and the value of the surveys. The universe for this study is English-speaking U.S. residents aged 18–65. The sample frame will consist of a national random digit dial sample of telephone numbers from a frame of known cell phone exchanges. Respondents reached on their cell phones will be asked to complete an initial CATI survey consisting of a short series of simple demographic questions, general health questions, and questions about tobacco and alcohol use. At the conclusion of this brief survey, respondents who have smartphones will be asked to participate in the feasibility study, which consists of a first follow-up survey and, a week later, a second follow-up survey. Those who agree will receive invitations to participate by text message, which will include a link to the survey. A sample of respondents who do not have smartphones will be asked to participate in a text message pilot, which also consists of a first follow-up survey and a second follow-up survey. Text message respondents will receive a text message inviting them to participate; respondents opting in will be texted survey questions one at a time. Before initiating the feasibility study, CDC will conduct a brief pre-test of information collection forms and procedures.
This study will evaluate: (1) Response bias of a smartphone health survey by comparing data collected via CATI to data collected via smartphones/text messages, and data collected via smartphones to data collected via text messages, (2) relative cost-effectiveness of data collected via CATI to data collected via smartphones/text messages; (3) coverage bias associated with restricting the sample to smartphone users; and (4) the utility of smartphones for completing frequent, short interviews (e.g., diary studies to track activities or events).
OMB approval is requested for one year. Participation is voluntary and respondents can choose not to participate at any time. There are no costs to respondents other than their time. The total estimated annualized burden hours are 236.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 or send comments to Kimberly S. Lane, at 1600 Clifton Road, MS D74, Atlanta, GA 30333 or send an email to
Research to Inform the Prevention of Asthma in Healthcare—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
Healthcare is the largest industry in the United States and performs a vital function in society. Evidence from both surveillance and epidemiologic research indicates that healthcare workers have an elevated risk for work-related asthma (WRA) associated with exposure to groups of agents such as cleaning products, latex, indoor air pollution, volatile organic compounds (VOCs) and bioaerosols. Recent epidemiologic studies of WRA among healthcare workers have utilized job exposure matrices (JEMs) based on probability of exposure, however, specific exposures/etiologic agents are not well characterized and quantitative exposure measurements are lacking. In this project, NIOSH will augment the existing JEM with quantitative exposure data, which will significantly enhance the existing JEMs and develop a survey questionnaire for asthma in healthcare.
Since asthma continues to be a problem among healthcare workers, the overall goal of this project is to prevent work-related asthma among healthcare workers. The primary objective is to identify modifiable occupational risk factors for asthma in healthcare that will inform strategies for prevention. Specific Aims that support the Primary Objective are:
Aim 1. Measure frequency of asthma onset, related symptoms, and exacerbation of asthma in selected healthcare occupations.
Aim 2. Assess associations between asthma outcomes and exposures to identify modifiable risk factors.
In order to accomplish the goal and aims of this project, NIOSH has developed a survey designed to collect information about work history, workplace exposures and asthma health from workers in the healthcare industry. Aim 1 of this project will be completed using data exclusively from this survey. While aim 2 will be completed using asthma outcome data from the survey and exposure data from the JEM developed from survey data and exposure data from previously environmental sampling at healthcare facilities.
Approximately 17,500 health care workers in the New York City area will be recruited for this study. NIOSH is partnering with the Service Employees International Union (SEIU) Local 1199 in New York City. The SEIU1199 Communications Center (CC) will be responsible for collecting survey data from union members by telephone interview. The goal is to conduct a cross-sectional epidemiologic survey of approximately 5,000 healthcare workers who are members of SEIU1199. Only health care workers whose job titles are in one of nine job titles will be recruited. These nine job titles include: certified nursing assistants (CNAs), central supply, environmental services, licensed practical nurses (LPNs), lab techs, operating room (OR) techs, registered nurses (RNs), respiratory therapists, and dental assistants. Furthermore, recruitment of health care workers will only be from hospitals and nursing homes.
Completion of the survey by SEIU1199 members will be done either online or over the telephone. After the initial recruitment period, SEIU1199 members will have approximately two weeks to complete the online survey. After this two week period, the SEIU1199 Communication Center will begin calling members who have not completed the online survey and attempt to complete the survey with them by telephone interview. NIOSH anticipates 20% of the responses to be made using the online survey and the remaining 80% to be by telephone interview.
Summary results of this study will be made available to SEIU1199 members who completed the survey through a letter mailed to their homes. Although NIOSH has partnered with SEIU119, results of this study will also be disseminated to other industry stakeholders including healthcare workers, researchers, clinicians, and professional societies and government agencies. The desired outcome of the dissemination efforts include healthcare workers learning about hazards in their work environment and becoming more prepared to participate in the development of strategies to minimize risk. Also, clinicians will learn how occupational exposures can impact the respiratory health of their patients who work in healthcare, which should improve the care they provide. In addition, manuscripts of results and conclusions will be drafted and published in peer reviewed journals.
The target sample size for this study is 5,000. Based on the SEIU1199 membership data, the percentage of eligible union members that fall into the targeted nine job categories is known. Therefore, a participant job-category distribution estimate can be made.
Completion of either the online or telephone survey will take approximately 30 minutes. It is estimated that the annualized burden will be 2,500 hours. There is no cost to respondents other than their time.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget (OMB), in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). To request a copy of the clearance requests submitted to OMB for review, email
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
This is a revision to a data collection previously approved for the Patient Navigator Outreach and Chronic Disease Prevention Demonstration Program (PNDP). Authorized under section 340A of the Public Health Service Act, as amended by section 3510 of the Affordable Care Act, PNDP supports the development and operation of projects to provide patient navigator services to improve health outcomes for individuals with cancer and other chronic diseases, with a specific emphasis on health disparities populations. Award recipients are to use grant funds to recruit, assign, train, and employ patient navigators who have direct knowledge of the communities they serve in order to facilitate the care of those who are at risk for or who have cancer or other chronic diseases, including conducting outreach to health disparities populations. As authorized by the statute, an evaluation of the outcomes of the program must be submitted to Congress. The purpose of these data collection instruments, including navigated patient data intake, VR–12 health status, patient navigator survey, patient navigator encounter/tracking log, patient medical record and clinic data, clinic rates (baseline measures), quarterly reports, and focus group discussion guides is to provide data to inform and support the Report to Congress for: The quantitative analysis of baseline and benchmark measures; aggregate information about the patients served and program activities; and recommendations on whether patient navigator programs could be used to improve patient outcomes in other public health areas. A single instrument, the Client Opinion Form, has been added to this collection, resulting in an increase of 94.77 burden hours.
The annual estimate of burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the desk officer for HRSA, either by email to
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
The game will be incorporated with a larger initiative to provide information about clinical research (
The annual reporting burden is as follows:
The following table should be the same table from section A.12 of the supporting statement.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Victoria Pemberton, RNC, MS, CCRC, National Heart, Lung and Blood Institute, 6701 Rockledge Drive, Rm. 8109, Bethesda, MD 20892, or call non-toll-free number (301) 435–0510 or Email your request, including your address to:
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the Office of Strategic Coordination (OSC), Division of Program Coordination, Planning, and Strategic Initiatives (DPCPSI), National Institutes of Health (NIH), will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
The findings will provide valuable information concerning (1) aspects of the program that could be revised or improved, (2) progress made by the Early Independence Principal Investigators, and (3) implementation of the program at Host Institutions.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Dr. Ravi Basavappa, OSC, DPCPSI, Office of the Director, NIH, 1 Center Drive, MSC 0189, Building 1, Room 203, Bethesda, MD 20892–0189; telephone 301–594–8190; fax 301–435–7268; or email your request, including your address, to
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Heart, Lung, and Blood Institute
In a 2007 study conducted in Sweden, 19% of 334 MSM who responded to a survey that was included in a monthly publication targeted to the Lesbian, Gay, Bisexual and Transgender (LGBT) community reported donating blood at least one-time since 1985. The authors suggested that MSM donors may be motivated by perceived discrimination, particularly younger MSM.
Recent publications from the United Kingdom have reported what are likely the only population-based assessment of non-compliance with a similar restriction on blood donation for the MSM population as in the U.S.; this study was conducted in 2009 and 2010 and also estimated opinions about and self-reported intended compliance with the MSM deferral policy in place in the United Kingdom at that time. Note, the policy in the United Kingdom was modified in November 2011 and MSM in the United Kingdom are now allowed to donate if they have not been sexually active for a one-year period before donation.
Data similar to those collected in Sweden and the United Kingdom are not available for the U.S. Potential changes to the current MSM policy for blood donation requires additional data, including information about motivating factors and compliance with the current MSM policy or a modified policy in the MSM population and in current blood donors. Speculative analyses have been conducted but do not directly address important considerations related to this policy such as the current level of compliance (in the MSM population) and non-compliance (in the blood donor population). While many scientists and ethicists have expressed opinions in support or against modification of the current MSM policy for blood donation, there is a lack of data that directly addresses important aspects of this policy debate. The proposed study will build off the studies conducted in Sweden and the United Kingdom and will collect directly relevant information on this topic by estimating the prevalence of compliance and non-compliance with the current MSM policy and assessing motivations for blood donation in the U.S. MSM population. Three research aims drive this study's protocols to provide valuable evidence on the motivations and compliance behaviors in the MSM and blood donor populations. The four geographic areas where the study will be conducted include the State of Connecticut, Western Pennsylvania, Southern Wisconsin, and the Bay Area of California.
The first aim seeks to assess opinions about and common themes within the MSM population with respect to blood donation and the current MSM policy. Specifically, within a population of self-identified MSM in the U.S., what common themes can be identified regarding knowledge and opinions of current blood donation eligibility, and would opinions, including self-reported intended compliance, improve if the current MSM policy were changed to a deferral of a defined shorter duration? Another objective is to use what is learned in the focus groups to help select proper venues for identifying MSM who might be interested in participating in a comprehensive survey to assess compliance and non-compliance with the current MSM policy (see second aim).
The second aim seeks to assess compliance and non-compliance in the MSM population with the current MSM blood donation policy by confidentially surveying two populations. One survey will be conducted in the MSM community to provide better estimates of compliance and non-compliance with the current policy and a second survey will be conducted in male blood donors to evaluate how frequently men who have had sex with another man since 1977 are donating blood. The surveys will be conducted using an instrument that includes common content to maximize the comparability of the responses. Both surveys will be conducted using Internet-based techniques and currently available software (SurveyGizmo,
The third aim seeks to assess motivations for donating in the group of self-identified MSM who are active blood donors in the U.S. Participants from the four geographic areas who report donating blood or the intention to donate will be asked to participate in confidential qualitative telephone interviews to identify their reasons for donating or wanting to donate blood.
The Fogarty International Center (FIC), National Institutes of Health (NIH) is updating its strategic plan. To anticipate and set priorities for global health research and research training, FIC requests input from scientists, the general public, and interested parties. The goal of this strategic planning process is to identify current and future needs and directions for global health research and research training. The existing FIC strategic plan can be viewed at:
Submit responses to the Division of International Science Policy, Planning and Evaluation, FIC on or before July 6, 2012.
The Fogarty International Center is dedicated to advancing the mission of the National Institutes of Health by supporting and facilitating global health research conducted by U.S. and international investigators, building partnerships between health research institutions in the U.S. and abroad, and training the next generation of scientists to address global health needs.
The Fogarty International Center supports basic, clinical and applied research and training for U.S. and foreign investigators working in the developing world. Since its formation more than 40 years ago, Fogarty has served as a bridge between NIH and the greater global health community—facilitating exchanges among investigators, providing training opportunities and supporting promising research initiatives in developing countries.
In order to inform its 2013 Strategic Plan, FIC specifically, but not exclusively, requests comments on the following topics:
(1) What are specific gaps, needs, and opportunities in global health research that should be addressed by Fogarty in the next 5–10 years?
(2) What are specific gaps, needs, and opportunities in global health research training that should be addressed by Fogarty in the next 5–10 years?
(3) Are there specific gaps and/or opportunities related to the use of information and communication technologies (ICT), mobile technologies (mHealth), and distance learning in research and research training?
(4) What are specific gaps, needs, and opportunities related to research and research training in chronic, non-communicable diseases?
(5) What are specific gaps, needs, and opportunities related to research and research training in infectious diseases?
(6) How can Fogarty strengthen the research-enabling environment at research institutions in low and middle income countries?
(7) How can Fogarty encourage more collaboration in research and research training among institutions in low and middle income countries?
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 USC, as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Center for Scientific Review Advisory Council.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the Request for Information.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Cancer Institute Clinical Trials and Translational Research Advisory Committee.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 USC, as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
60-Day Notice of Information Collection Under Review: Form G–325; G–325A; G–325B; G–325C.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice is published in the
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Office of Policy and Strategy, Laura Dawkins, Acting Chief, Regulatory Coordination Division, 20 Massachusetts Avenue NW., Washington, DC 20529. Comments may also be submitted to DHS via email at
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
30-Day Notice of Information Collection Under Review: Form I–601, Application for Waiver of Grounds of Inadmissibility; Correction.
On June 7, 2012 the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) published a 30-day information collection notice in the
In the 30-day information collection notice, USCIS inadvertently indicated that it did not receive comments in connection with the 60-day information collection notice it had previously published in the
USCIS is now correcting that notice to read that “USCIS received one comment in connection with that publication.” This correction does not change the July 9, 2012, commenting period closing date.
30-Day notice of information collection under review: Form I–612, Application for waiver of the foreign residence requirement of section 212(e) of the Immigration and Nationality Act.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until July 13, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief Regulatory Coordinator, Regulatory Coordination Division, Office of Policy and Strategy, 20 Massachusetts Avenue, Washington, DC 20529–2020. Comments may also be submitted to DHS via email at
All submissions received must include the agency name, OMB Control Number and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument with supplementary documents, or need additional information, please visit
We may also be contacted at: USCIS, Regulatory Coordination Division, Office of Policy and Strategy, 20 Massachusetts Avenue NW., Washington, DC 20529–2020; Telephone 202–272–1470.
Office of the Secretary, Interior.
Notice of Meetings.
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., 2, the U.S. Department of the Interior, Office of the Secretary, Wildland Fire Executive Council (WFEC) will meet as indicated below.
The meetings will be held on the first and third Friday of each month from 10 a.m. to 2 p.m. Eastern Time as follows: July 6, 2012; July 20, 2012; August 3, 2012; August 17, 2012; September 7, 2012 and September 21, 2012.
The meetings will be held from 10 a.m. to 2 p.m. Eastern Time in the McArdle Room (First Floor Conference Room) in the Yates Federal Building, USDA Forest Service Headquarters, 1400 Independence Ave. SW., Washington, DC 20250.
Roy Johnson, Designated Federal Officer, 300 E Mallard Drive, Suite 170, Boise, Idaho 83706; telephone (208) 334–1550; fax (208) 334–1549; or email
The WFEC is established as a discretionary advisory committee under the authorities of the Secretary of the Interior and Secretary of Agriculture, in furtherance of 43 U.S.C. 1457 and provisions of the Fish and Wildlife Act of 1956 (16 U.S.C. 742a–742j), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
The purpose of the WFEC is to provide advice on coordinated national-level wildland fire policy and to provide leadership, direction, and program oversight in support of the Wildland Fire Leadership Council. Questions related to the WFEC should be directed to Roy Johnson (Designated Federal Officer) at
Questions about the agenda or written comments may be emailed or submitted by U.S. Mail to: Department of the Interior, Office of the Secretary, Office of Wildland Fire, Attention: Shari Eckhoff, 300 E. Mallard Drive, Suite 170, Boise, Idaho 83706–6648. WFEC requests that written comments be received by the Friday preceding the scheduled meeting. Attendance is open to the public, but limited space is available. Persons with a disability requiring special services, such as an interpreter for the hearing impaired, should contact Ms. Eckhoff at (202) 527–0133 at least seven calendar days prior to the meeting.
Bureau of Land Management, Interior.
60-Day Notice and Request for Comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information from applicants for a land patent under the Color-of-Title Act. The Office of Management and Budget (OMB) has assigned control number 1004–0029 to this information collection.
Submit comments on the proposed information collection by August 13, 2012.
Comments may be submitted by mail, fax, or electronic mail.
Please indicate “Attn: 1004–0029” regardless of the form of your comments.
Jeff Holdren, at 202–912–7335. Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339, to leave a message for Mr. Holdren.
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501–3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
The following information is provided for the information collection:
• Form 2540–1, Color-of-Title Application;
• Form 2540–2, Color-of-Title Conveyances Affecting Color or Claim of Title; and
• Form 2540–3, Color-of-Title Tax Levy and Payment Record.
The following table details the individual components and respective hour burdens of this information collection request:
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
60-day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information from applicants for land for recreation or public purposes. The Office of Management and Budget (OMB) has assigned control number 1004–0012 to this information collection.
Submit comments on the proposed information collection by August 13, 2012.
Comments may be submitted by mail, fax, or electronic mail.
Mail: U.S. Department of the Interior, Bureau of Land Management, 1849 C Street, NW., Room 2134LM, Attention: Jean Sonneman, Washington, DC 20240.
Fax: to Jean Sonneman at 202–245–0050.
Electronic mail:
Please indicate “Attn: 1004–0012” regardless of the form of your comments.
Jeff Holdren at 202–912–7335. Persons who use a telecommunication device for the
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501–3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8 (d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
The following information is provided for the information collection:
• Form 2740–1, Application for Land for Recreation or Public Purposes.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) has filed the plats of survey of the lands described below in the BLM Wyoming State Office, Cheyenne, Wyoming, on the dates indicated.
Bureau of Land Management, 5353 Yellowstone Road, P.O. Box 1828, Cheyenne, Wyoming 82003.
These surveys were executed at the request of the Bureau of Land Management and the U. S. Forest Service, and are necessary for the management of resources. The lands surveyed are:
The plat representing the entire record of the survey of the subdivision of section 30, Township 32 North, Range 114 West, Sixth Principal Meridian, Wyoming, Group No. 847, was accepted February 27, 2012.
The plat and field notes representing the dependent resurvey of a portion of the Sixth Standard Parallel North through Ranges 95 and 96 West, a portion of the Twelfth Guide Meridian West through Township 24 North, between Ranges 96 and 97 West, the subdivisional lines, and the adjusted 1884 meanders of Bush Lake (dry) in sections 6 and 7, Township 24 North, Range 96 West, Sixth Principal Meridian, Wyoming, Group No. 826, was accepted February 27, 2012.
The plat and field notes representing the dependent resurvey of a portion of the east boundary, a portion of the north boundary, a portion of the subdivisional lines, Mineral Survey No. 519, and the subdivision of sections 1 and 2, Township 13 North, Range 79 West, Sixth Principal Meridian, Wyoming, Group No. 830, was accepted February 27, 2012.
The plat and field notes representing the dependent resurvey of portions of the east and north boundaries, a portion of the subdivisional lines, and the subdivision of section 1, Township 43 North, Range 82 West, Sixth Principal Meridian, Wyoming, Group No. 833, was accepted February 27, 2012.
The plat and field notes representing the dependent resurvey of a portion of the east boundary and portions of the subdivisional lines, Township 19 North, Range 107 West, Sixth Principal Meridian, Wyoming, Group No. 851, was accepted February 27, 2012.
The field notes representing the remonumentation of certain corners of the survey executed by A.V. Richards, south boundary of the Wyoming Territory in 1873, and Donnell Miller, subdivisions in 1899, Township 12 North, Range 83 West, Sixth Principal Meridian, Wyoming, Group No. 624, was accepted February 27, 2012.
The plat and field notes representing the dependent resurvey of a portion of the subdivisional lines, and the metes-and-bounds survey of the Adobe Town Wilderness Study Area Boundary through sections 7 and 18, Township 13 North, Range 97 West, Sixth Principal Meridian, Wyoming, Group No. 839, was accepted April 23, 2012.
The supplemental plat showing amended lottings, Township 33 North, Range 109 West, Sixth Principal Meridian, Wyoming, Group No. 858, was accepted June 1, 2012 and is based upon the dependent resurvey plat of Township 33 North, Range 109 West, accepted October 31, 2007.
Copies of the preceding described plats and field notes are available to the public at a cost of $1.10 per page.
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM Montana State Office, Billings, Montana, on July 13, 2012.
Protests of the survey must be filed before July 13, 2012 to be considered.
Protests of the survey should be sent to the Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669.
Thomas Laakso, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669, telephone (406) 896–5125 or (406) 896–5009,
This survey was executed at the request of the U.S. Army Corps of Engineers, Omaha District, and was necessary to determine federal interest lands.
The lands we surveyed are:
The plat, in one sheet, representing the dependent resurvey of a portion of the west boundary, and a portion of the subdivisional lines, and the subdivision of sections 18 and 19, Township 24 North, Range 40 East, Principal Meridian, Montana, was accepted May 28, 2012.
We will place a copy of the plat, in one sheet, and related field notes we described in the open files. They will be available to the public as a matter of information. If the BLM receives a protest against this survey, as shown on this plat, in one sheet, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file this plat, in one sheet, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals.
43 U.S.C. chap. 3.
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM Montana State Office, Billings, Montana, on July 13, 2012.
Protests of the survey must be filed before July 13, 2012 to be considered.
Protests of the survey should be sent to the Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669.
Thomas Laakso, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669, telephone (406) 896–5125 or (406) 896–5009,
This survey was executed at the request of the U.S. Army Corps of Engineers, Omaha District, and was necessary to determine federal interest lands.
The lands we surveyed are:
The plat, in one sheet, representing the dependent resurvey of a portion of the subdivisional lines and the subdivision of sections 13 and 24, Township 24 North, Range 39 East, Principal Meridian, Montana, was accepted May 29, 2012. We will place a copy of the plat, in one sheet, and related field notes we described in the open files. They will be available to the public as a matter of information. If the BLM receives a protest against this survey, as shown on this plat, in one sheet, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file this plat, in one sheet, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals.
43 U.S.C. chap. 3.
Bureau of Land Management, Interior.
Notice of availability.
The Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD)/Approved Amendment to the California Desert Conservation Area (CDCA) Plan for the Ocotillo Wind Energy Facility (OWEF) to be located in the California Desert District near Imperial County, California. The Secretary of the Interior approved the ROD on May 11, 2012, which constitutes the final decision of the Department
Copies of the ROD/Approved Amendment to the CDCA Plan are available upon request from the Field Manager, BLM El Centro Field Office, 1661 S. 4th Street, El Centro, California 92243 and the BLM California Desert District Office, 22835 Calle San Juan de Los Lagos, Moreno Valley, California 92553, or via the Internet at
Cedric Perry, BLM Project Manager, telephone (951) 697–5388; address 22835 Calle San Juan De Los Lagos, Moreno Valley, CA 92553; email
Pattern Energy, Inc., through its wholly owned subsidiary, Ocotillo Express LLC, filed right-of-way (ROW) application CACA–51552 for the OWEF. The project as originally proposed would have consisted of 155 wind turbines (1.6 to 3.0 MW each) on 12,436 acres of predominately BLM-managed lands with a generating capacity of up to 465 MW and the following ancillary facilities; a substation; administration, operations and maintenance facilities; transmission lines; and temporary construction lay down areas. The project site is located west of the city of El Centro in Imperial County, California.
The project site is in the California Desert District within the planning boundary of the CDCA Plan, which is the applicable Resource Management Plan for the project site and surrounding areas. The CDCA Plan, while recognizing the potential compatibility of wind energy generation facilities with other uses on public lands, requires that all sites associated with power generation or transmission not already identified in the Plan be considered through the BLM's land use plan amendment process. As a result, in connection with its approval of a ROW grant for the OWEF, the BLM had to amend the CDCA Plan to recognize the project site as suitable for wind energy development. The approved Amendment to the CDCA Plan specifically amends the CDCA Plan to make such a determination.
The BLM Preferred Alternative identified in the Final Environmental Impact Statement/Environmental Impact Report (EIS/EIR) is the Refined Project, which involves the construction and operation of 112 wind turbines at the project site, with a generating capacity of up to 315 MW. The Refined Project eliminates 43 turbines that were analyzed under the Proposed Action in order to reduce effects to cultural resources. The Refined Project configuration is comprised of a subset of the turbine sites that are already part of the existing alternatives analyzed in the Final EIS/EIR. The Refined Project was approved by the ROD and will result in construction of the wind generation facility consisting of: up to 112 turbines with a generating capacity of 315 MW on approximately 10,151 acres of BLM-managed lands in Imperial Valley, California, and the following ancillary facilities: a substation; administration, operations and maintenance facilities; transmission lines; and temporary construction lay down areas.
With respect to the plan amendment, the publication of the Notice of Availability for the Final EIS/EIR on March 9, 2012 initiated a 30-day protest period on the proposed plan amendment, which concluded April 9, 2012. The BLM received 12 timely and complete written protests, each of which was resolved prior to the execution of the ROD. These protest resolutions are summarized in the Director's Protest Summary Report attached to the ROD. The proposed amendment to the CDCA Plan was not modified as a result of the protests received or their resolution. Simultaneously with the plan amendment protest period, the Governor of California conducted an expedited 30-day consistency review of the proposed CDCA Plan amendment to identify any inconsistencies with State or local plan, policies or programs; no inconsistencies were identified by the Governor's Office.
Because this decision is approved by the Secretary of the Interior, it is not subject to administrative appeal (43 CFR 4.410(a)(3)).
40 CFR 1506.6.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before May 19, 2012. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447. Written or faxed comments should be submitted by June 28, 2012. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of countervailing duty investigation No. 701–TA–481 (Final) under section 705(b) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)) (the Act) and the final phase of antidumping investigation No. 731–TA–1190 (Final) under section 735(b) of the Act (19 U.S.C. 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of subsidized and less-than-fair-value imports from China of crystalline silicon photovoltaic cells and modules, provided for in subheadings 8501.31.80, 8501.61.00, 8507.20.80, and 8541.40.60 of the Harmonized Tariff Schedule of the United States.
This investigation covers crystalline silicon photovoltaic cells of thickness equal to or greater than 20 micrometers, having a p/n junction formed by any means, whether or not the cell has undergone other processing, including, but not limited to, cleaning, etching, coating, and/or addition of materials (including, but not limited to, metallization and conductor patterns) to collect and forward the electricity that is generated by the cell.
Merchandise under consideration may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, modules, laminates, panels, building-integrated modules, building-integrated panels, or other finished goods kits. Such parts that otherwise meet the definition of merchandise under consideration are included in the scope of this investigation.
Excluded from the scope of this investigation are thin film photovoltaic products produced from amorphous silicon (a-Si), cadmium telluride (CdTe), or copper indium gallium selenide (CIGS).
Also excluded from the scope of this investigation are crystalline silicon photovoltaic cells, not exceeding 10,000mm
Modules, laminates, and panels produced in a third-country from cells produced in the PRC are covered by this investigation; however, modules, laminates, and panels produced in the PRC from cells produced in a third-country are not covered by this investigation.”
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Christopher J. Cassise (202–708–5408), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on February 15, 2012, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Peregrine Semiconductor Corporation of San Diego, California. Supplements were filed on February 16 and February 28, 2012. The complaint was amended on May 11, 2012. The complaint, as supplemented and amended, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain radio frequency integrated circuits and devices containing same by reason of infringement of certain claims of U.S. Patent No. 7,910,993 (“the `993 patent”); U.S. Patent No. 7,123,898 (“the `898 patent”); U.S. Patent No. 7,460,852 (“the `852 patent”); U.S. Patent No. 7,796,969 (“the `969 patent”); and U.S. Patent No. 7,860,499 (“the `499 patent”). The amended complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist order.
The amended complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000.
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2012).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain radio frequency integrated circuits and devices containing same that infringe one or more of claims 14–16, 23–25, 31, 32, and 37 of the `993 patent; claims 1–3, 5–7, and 15 of the `898 patent; 1–4, 7, 13, 14, 20, 22, 24, and 25 of the `852 patent; claims 6–8, 29, and 30 of the `969 patent; and claims 1, 3, 5, and 6 of the `499 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)–(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined that there is a violation of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337) by respondent Motorola Mobility, Inc. of Libertyville, Illinois (“Motorola”) in the above-captioned investigation. The Commission has issued a limited exclusion order directed to the infringing products of Motorola and has terminated the investigation.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3115. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on November 5, 2010, based on a complaint filed by Microsoft Corporation of Redmond, Washington (“Microsoft”). 75 FR 68379–80 (Nov. 5, 2010). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain mobile devices, associated software, and components thereof by reason of infringement of U.S. Patent Nos. 5,579,517 (“the `517 patent”); 5,758,352 (“the `352 patent”); 6,621,746 (“the `746 patent”); 6,826,762 (“the `762 patent”); 6,909,910 (“the `910 patent”); 7,644,376 (“the `376 patent”); 5,664,133 (“the `133 patent”); 6,578,054 (“the `054 patent”); and 6,370,566 (“the `566 patent.”) Subsequently, the `517 and the `746 patents were terminated from the investigation. The notice of investigation, as amended, names Motorola Mobility, Inc. of Libertyville, Illinois and Motorola, Inc. of Schaumburg, Illinois as respondents. Motorola, Inc. n/k/a Motorola Solutions was terminated from the investigation
The presiding administrative law judge (“ALJ”) issued the final initial determination (“ID”) on violation in this investigation on December 20, 2011. He issued his recommended determination on remedy and bonding on the same day. The ALJ found that a violation of section 337 has occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain mobile devices, associated software, and components thereof containing same by reason of infringement of one or more of claims 1, 2, 5 and 6 of the `566 patent. Both Complainant and Respondent filed timely petitions for review of various portions of the final ID, as well as timely responses to the petitions.
The Commission determined to review various portions of the final ID and issued a Notice to that effect dated March 2, 2012. 77 FR 14043 (Mar. 8, 2012). In the Notice, the Commission also set a schedule for the filing of written submissions on the issues under review, including certain questions posed by the Commission, and on remedy, the public interest, and bonding. The parties have briefed, with initial and reply submissions, the issues under review and the issues of remedy, the public interest, and bonding. Public interest comments were also received from non-parties Association for Competitive Technology, Inc. and Google Inc.
On review, the Commission has determined as follows.
(1) To affirm with modifications the ALJ's determination that Microsoft met the economic prong of the domestic industry requirement with respect to all of the presently asserted patents in this investigation,
(2) With respect to the ID's determination regarding the technical prong of the domestic industry requirement with respect to all of the presently asserted patents:
(a) To affirm with modifications the ALJ's determination that Microsoft failed to meet the technical prong of the domestic industry requirement with respect to the `054 patent;
(b) To affirm the ALJ's determination that Microsoft satisfied the technical prong of the domestic industry requirement with respect to the `566, `133, and `910 patents;
(c) To reverse the ALJ's determination that Microsoft failed to meet the technical prong of the domestic industry requirement with respect to the `352 patent;
(d) To affirm the ALJ's determination that Microsoft failed to meet the technical prong of the domestic industry requirement with respect to the `762 and `376 patents;
(3) To affirm with modifications the ALJ's determination that the asserted claims of the `566 patent are not invalid due to anticipation or obviousness;
(4) To reverse the ALJ's determination that Microsoft failed to carry its burden of showing that Motorola's accused products infringe the asserted claims of the `352 patent and determine that, based on the record, Microsoft proved by a preponderance of the evidence that Motorola's accused products directly infringe the `352 patent;
(5) To affirm the ALJ's determination that Microsoft failed to prove by a preponderance of the evidence that Motorola induced infringement of each of the `054, `762, `376, `133, and `910 patents, and to affirm with modifications the ALJ's determination that Microsoft failed to prove by a preponderance of the evidence that Motorola induced infringement of each of the `566 and `352 patents.
The Commission has determined that the appropriate form of relief in this investigation is a limited exclusion order prohibiting the unlicensed entry for consumption of mobile devices, associated software and components thereof covered by claims 1, 2, 5, or 6 of the United States Patent No. 6,370,566 and that are manufactured abroad by or on behalf of, or imported by or on behalf of, Motorola. The order provides an exception for service, repair, or replacement articles for use in servicing, repairing, or replacing mobile devices under warranty or insurance contract.
The Commission has further determined that the public interest factors enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude issuance of the limited exclusion order. Finally, the Commission determined that Motorola is required to post a bond set at a reasonable royalty rate in the amount of $0.33 per device entered for consumption during the period of Presidential review. The Commission's order was delivered to the President and the United States Trade Representative on the day of its issuance.
The Commission has therefore terminated this investigation. The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and sections 210.41–.42, 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 210.41–.42, 210.50).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) Order No. 8 denying a motion for a show cause order and an initial determination (“ID”) (Order No. 9) terminating the investigation based on complainant's withdrawal of the complaint.
Jean Jackson,
The Commission instituted this investigation on November 23, 2011, based on a complaint filed by Beacon Navigation GmbH of Zug, Switzerland (“Beacon”). 76 FR 72443 (Nov. 23, 2011). The complaint alleged violations of section
The notice of investigation named as respondents Audi AG of Ingolstadt, Germany; Audi of America, Inc. of Auburn Hills, Michigan; Audi of America, LLC of Herndon, Virginia; Bayerische Motoren Werke AG of Munich, Germany; BMW of North America, LLC of Woodcliff Lake, New Jersey; BMW Manufacturing Co., LLC of Greer, South Carolina; Chrysler Group LLC of Auburn Hills, Michigan; Ford Motor Company of Dearborn, Michigan; General Motors Company of Detroit, Michigan; Honda Motor Co., Ltd. Of Tokyo, Japan; Honda North America, Inc. an American Honda Motor Co., Inc., both of Torrance, California; Honda Manufacturing of Alabama, LLC of Lincoln, Alabama; Honda Manufacturing of Indiana, LLC of Greensburg, Indiana; Honda of America Manufacturing, Inc. of Marysville, Ohio; Hyundai Motor Company of Seoul, South Korea; Hyundai Motor America of Fountain Valley, California; Hyundai Motor Manufacturing Alabama, LLC of Montgomery, Alabama; Kia Motors Corp. of Seoul, South Korea; Kia Motors America, Inc. of Irvine, California; Kia Motors Manufacturing Georgia, Inc. of West Point, Georgia; Mazda Motor Corporation of Hiroshima, Japan; Mazda Motor of America, Inc. of Irvine, California; Daimler AG of Stuttgart, Germany; Mercedes-Benz USA, LLC of Montvale, New Jersey; Mercedes-Benz U.S. International, Inc. of Vance, Alabama; Nissan Motor Co., Ltd. of Yokohama-shi, Japan; Nissan North America, Inc. of Franklin, Tennessee; Dr. Ing. H.c. F. Porsche AG of Stuttgart, Germany; Porsche Cars North America, Inc. of Atlanta, Georgia; Saab Automobile AB of Trollhattan, Sweden; Saab Cars North America, Inc. of Royal Oak, Michigan; Suzuki Motor Corporation of Hamamatsu City, Japan; American Suzuki Motor Corporation of Brea, California; Jaguar Land Rover North America, LLC of Mahwah, New Jersey; Jaguar Cars Limited of Coventry, United Kingdom; Land Rover of Warwickshire, United Kingdom; Toyota Motor Corporation of Toyota City, Japan; Toyota Motor North America, Inc. of Torrance, California; Toyota Motor Engineering & Manufacturing North America, Inc. of Erlanger, Kentucky; Toyota Motor Manufacturing, Indiana, Inc. of Princeton, Indiana; Toyota Motor Manufacturing, Kentucky, Inc. of Georgetown, Kentucky; Toyota Motor Manufacturing Mississippi, Inc. of Blue Springs, Mississippi; Volkswagen AG of Wolfsburg, Germany; Volkswagen Group of America, Inc. and Volkswagen Group of America Chattanooga Operations, LLC, both of Herndon, Virginia; Volvo Car Corporation of Goteborg, Sweden; and Volvo Cars of North America, LLC of Rockleigh, New Jersey.
On February 29, 2012, the Commission determined not to review an ID amending the complaint and notice of investigation to terminate General Motors Company from the investigation and replace it with General Motors LLC of Detroit, Michigan. 77 FR 13350 (Mar. 6, 2012).
Complainant filed a motion to withdraw its complaint on April 13, 2012. On April 20, 2012, the respondents stated that they did not oppose the motion to terminate, but requested that the motion not be granted until it was determined if Beacon violated Commission Rules 210.12(a)(9)(iii) and/or 210.4(c) concerning the veracity of licensing information in its complaint. On the same day, respondents filed a motion requesting that the ALJ sua sponte issue a show cause order directing Beacon and its counsel to (1) identify all licensees that Beacon and its counsel are currently aware of and knew of at the time the Complaint was filed, (2) provide details of Beacon's pre-filing investigation, and (3) show cause why Beacon did not violate Commission Rule 210.4(c) by identifying only MiTAC International Inc. (“MiTAC”) as a licensed entity.
On May 8, 2012, the ALJ issued an ID (Order No. 8) denying the motion for a sua sponte show cause order, as well as two other motions to recover from complainant costs incurred in preparing for cancelled depositions. On the same day, the ALJ issued Order No. 9, an ID granting complainant's motion to terminate the investigation based on a withdrawal of the complaint.
On May 15, 2012, several respondents filed a joint petition for review of both orders, arguing that there is a split in Commission precedent concerning the application of the safe harbor provision, which is at issue in Order 8. They petitioned for review of Order 9 to enable the Commission to grant the relief sought with respect to Order No. 8. Petitioners do not oppose termination of the investigation on any other ground. On May 22, 2012, the Commission investigative attorney and the complainant each filed a response in opposition to the petition.
Upon consideration of the petition and the responses thereto, the Commission has determined not to review either ALJ Order. The Commission does not agree that there is a split in Commission precedent regarding application of the safe harbor provision of 19 CFR 210.4(d)(1). The Commission investigations cited by petitioners each represent the exercise of discretion by the presiding ALJ in determining whether to issue a show cause order.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.21 and 210.42(h) of the Commission's Rules of Practice and Procedure (19 CFR 210.21, 210.42).
By order of the Commission.
United States International Trade Commission.
Time and Date: June 20, 2012 at 9:15 a.m.
Room 100, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205–2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 731–TA–865–867 (Second Review)(Stainless Steel Butt-Weld Fittings from Italy, Malaysia, and the Philippines). The Commission is currently scheduled to transmit its determinations and Commissioners' opinions to the Secretary of Commerce on or before June 29, 2012.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not
By Order of the Commission:
United States International Trade Commission.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205–2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701–TA–253 and 731–TA–132, 252, 271, 273, 532–534, and 536 (Third Review) (Certain Pipe and Tube from Brazil, India, Korea, Mexico, Taiwan, Thailand, and Turkey). The Commission is currently scheduled to transmit its determinations and Commissioners' opinions to the Secretary of Commerce on or before June 28, 2012.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By Order of the Commission.
National Archives and Records Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, the National Archives and Records Administration (NARA) announces a meeting of the Advisory Committee on the Records of Congress. The committee advises NARA on the full range of programs, policies, and plans for the Center for Legislative Archives in the Office of Legislative Archives, Presidential Libraries, and Museum Services (LPM). The meeting is open to the public.
The meeting will be held on June 25, 2012 from 10:00 a.m. to 11:30 a.m.
Capitol Visitor Center, Room SVC 212–10.
Richard H. Hunt, Director; Center for Legislative Archives; (202) 357–5350.
The National Science Board's Committee on Science and Engineering Indicators, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n–5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of a teleconference for the transaction of National Science Board business and other matters specified, as follows:
Tuesday, June 26, 2012, 11:00 a.m.–12:00 p.m. EDT.
Discussion of a revised draft of the second policy Companion to
Open.
This meeting will be held by teleconference at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. A public listening room will be available for this teleconference meeting. All visitors must contact the Board Office [call 703–292–7000 or send an email message to
Please refer to the National Science Board Web site
The National Science Board's Committee on Science and Engineering Indicators, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n–5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of a teleconference for the transaction of National Science Board business and other matters specified, as follows:
Tuesday, July 10, 2012, 3:00 p.m.–4:00 p.m. EDT.
Discussion of a revised draft of the second policy Companion to
Open.
This meeting will be held by teleconference at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. A public listening room will be available for this teleconference meeting. All visitors must contact the Board Office [call 703–292–7000 or send an email message to
Please refer to the National Science Board Web site
National Science Foundation.
Notice of permit applications received under the Antarctic Conservation Act of 1978, Public Law 95–541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by July 13, 2012. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Polly A. Penhale at the above address or (703) 292–7420.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95–541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
The applications received are as follows:
1.
Take, Enter Antarctic Specially Protected Areas, and Import into the U.S.A. The applicant plans to study the demographic consequences of environmental variability and individual heterogeneity in life-history tactics of Weddell seals in Erebus Bay, Antarctica. A breeding population of Weddell seals, a prominent Antarctic apex predator associated with fast ice, has been intensively studied in Erebus Bay at the southern extent of the Ross Sea since 1968. The study's broad objective is to evaluate how temporal variation in the marine environment affects a long-lived mammal's population dynamics. Up to 2,000 adult and pup Weddell seals will be approached to have their tags read. Smaller subsets of approximately 1,150 seals will be tagged or retagged, weighed, tissue sampled, and/or instrumented, then released. In addition, the applicant plans to salvage parts of dead animals encountered and remove vibrissae. The tissue samples will be collected from the margin of the rear flippers and will be imported into the U.S.A. for further study. DNA will be extracted from the samples and used to investigate individual heterogeneity.
The applicant plans to enter ASPA 137–North-west White Island twice annually to census and tag seals in the isolated colony. They also plan to enter ASPA 155–Cape Evans, ASPA 157 Backdoor Bay, Cape Royds, ASPA 158–Hut Point, and ASPA 161–Terra Nova Bay should any of the study's seals should haul out in the those areas.
Erebus Bay, Ross Island vicinity; ASPA 137–North-west White Island; ASPA 155–Cape Evans; ASPA 157 Backdoor Bay, Cape Royds; ASPA 158–Hut Point; and ASPA 161–Terra Nova Bay.
October 1, 2012 to September 30, 2017.
Nuclear Regulatory Commission.
Notice of Uranium milling alternative standards.
This document announces that on May 18, 2012, the U.S. Nuclear Regulatory Commission (NRC or the Commission) made a determination required by Section 274o of the Atomic Energy Act of 1954, as amended (the Act), for Agreement State proposed alternative standards for 11e.(2) byproduct material. The Commission has determined that the State of Colorado's proposed alternative soils standards will achieve a level of stabilization and containment of the sites concerned. It will also provide a level of protection for public health, safety, and the environment from radiological and nonradiological hazards associated with such sites equivalent to or more stringent than the level that would be achieved by existing standards and requirements, to the extent practicable. Existing standards include those adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the U.S. Environmental Protection Agency (EPA) in accordance with Section 275 of the Act. This document completes the notice and public hearing process required in Section 274o of the Act for proposed State alternative soil standards.
The Commission made a determination on the State of Colorado's proposed alternative soils standards on May 18, 2012.
Please refer to Docket ID NRC–2011–0258 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and are publicly available, using the following methods:
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Dennis M. Sollenberger, telephone: 301–415–2819; email:
Since Congress added Section 274 of the Act in 1959, the Commission has entered into Agreements with 37 States that relinquished Federal authority. Under these Agreements, each State assumed regulatory authority under State law to regulate certain radioactive materials within the State. The NRC periodically reviews the performance of the Agreement States to ensure compliance with the provisions of Section 274. Congress further amended the Act In 1978 by adding a new subsection, Section 274o, which required Agreement States to specifically amend their agreements to regulate uranium mill tailings (11e.(2) byproduct material). Six Agreement States have this authority as part of their agreements. Under Section 274o of the Act, an Agreement State may adopt site-specific alternative standards with respect to sites at which ores are processed primarily for their source material content or at sites used for the disposal of Section 11e.(2) byproduct material. Before a State can adopt alternative standards, the Commission must make a determination that the alternative standards will achieve a level of stabilization and containment of the site concerned, and the alternative standards will provide an equivalent or more stringent level of protection for public health, safety, and the environment from radiological and nonradiological hazards associated with the site. In addition, before making a determination, the NRC must provide notice and an opportunity for public hearing before approving the site-specific alternative standards.
The Commission approved a process similar to that specified in Title 10 of the
The NRC staff prepared an analysis of the comments received on Colorado's proposed alternative soils standards (ADAMS Accession No. ML120330021). The first of the two commenters wrote in support of Colorado's alternative soils standards. The second of the two commenters questioned the basis for applying alternative standards and requested a clarification regarding the requirements and the use of the alternative soils standards in the decommissioning process and in transferring the Uravan uranium mill site to the U.S. Department of Energy. The NRC staff found no deficiencies in Colorado's proposed alternative soils standards but the staff did make changes to its assessment to add clarity in response to the comments (ADAMS Accession No. ML120330018).
The Commission considered the comments submitted, the NRC staff's analysis of the comments, and the NRC staff's recommendation that the Commission approve a final determination that Colorado's proposed alternative soils standards meet the requirements in Section 274o of the Act. The Commission has determined that the State of Colorado's proposed alternative soils standards will achieve a level of stabilization and containment of the sites concerned. They also achieve a level of protection for public health, safety, and the environment from radiological and nonradiological hazards associated with such sites that is more stringent than the level that would be achieved by existing standards and requirements. Existing standards include those promulgated by the Administrator of the EPA in accordance with Section 275 of the Act.
For the Nuclear Regulatory Commission.
Postal Service
Notice of Computer Matching Program—United States Postal Service and the Defense Manpower Data Center, Department of Defense.
The United States Postal Service® (Postal Service®) plans to participate as the recipient agency in a computer matching program with the Defense Manpower Data Center (DMDC), Department of Defense (DoD), as the source agency. The purpose of this agreement is to verify continuing eligibility for the TRICARE Reserve Select Program (TRS) or TRICARE Retired Reserve (TRR) by identifying TRS and TRR recipients who are eligible for or receiving health coverage under Federal Employee Health Benefits (FEHB), and to terminate TRS or TRR benefits if appropriate.
The matching program will begin on the effective date of the agreement. The effective date is the expiration of a 40-day review period by Office of Management and Budget (OMB) and Congress or 30 days after the publication of this notice, whichever is later. The matching program will be valid for a period of 18 months after this date.
Written comments on this proposal should be mailed or delivered to the Records Office, United States Postal Service, 475 L'Enfant Plaza SW., Room 9431, Washington, DC 20260. Copies of all written comments will be available at the above address for public inspection and photocopying between 8 a.m. and 4 p.m., Monday through Friday.
Jane Eyre at (202) 268–2608.
The Postal Service and DMDC have completed an agreement to conduct a computer matching program under subsection (o) of the Privacy Act of 1974, 5 U.S.C. 552a. The Postal Service is undertaking this initiative to assist the DMDC in fulfilling a mandate issued under the John Warner National Defense Authorization Act of 2007 (NDAA of 2007) (Pub. L. 109–364) for TRS, with the Fiscal Year 2010, amended section 1076e of title 10 U.S.Code to establish the TRR Program. This Act established the enhanced TRS program as of October 1, 2007 and the TRR Program as of October 29, 2009, while excluding Selected Reserve and Retired Reserve members eligible for FEHB under chapter 89 of title 5, U.S.Code from participation in TRS or TRR.
The parties to this agreement have determined that a computer matching program is the most efficient, expeditious, and effective means of obtaining the information needed by the DMDC to identify individuals ineligible to continue the TRICARE Reserve Select and TRICARE Retired Reserve (TRR) Programs. If this identification is not accomplished by computer matching, but is done manually, the cost would be prohibitive and it is possible that not all individuals would be identified.
The Postal Service has agreed to assist the DMDC in its efforts to identify individuals that are not entitled to receive health coverage under TRS or TRR. Currently, upon initial enrollment into TRS or TRR, service members must certify that they are not eligible for FEHB in order to purchase TRS or TRR health care insurance coverage. Neither TRS or TRR has a termination date. The parties to this agreement have determined that a computer matching program is the most efficient, expeditious, and effective means of identifying ineligible TRS or TRR recipients that are eligible for or receiving health coverage under FEHB. Absent the matching agreement, DoD would have to recertify the enrolled population every year. Manual verification of Federal employment information would be an unnecessary and burdensome process and a significant expense for the DoD. Additionally, it is possible that not all affected individuals would be identified. There are no other consolidated data sources available containing this type of information.
The match will compare systems of records maintained by the respective agencies from which records will be disclosed for the purpose of this computer match. The Postal Service's Personnel Compensation and Payroll Records (USPS System of Records (SOR) 100.400 as amended by 76 FR 35484 (June 17, 2011)) will be compared with a file of records of Selected Reserve and Retired Reserve members who are enrolled in the TRS or the TRR. These disclosures are authorized by a Privacy Act routine use. This routine use, identified as routine use 7, is applicable to the payroll system of records, and permits disclosures to Federal and state agencies when the record is needed by the Postal Service or another agency to determine employee participation in, and eligibility under, particular benefit programs administered by those agencies. The DMDC will use the system of records identified as DMDC 02 DoD, “Defense Enrollment Eligibility Reporting System (DEERS)”, as amended by 76 FR 46757 (August 3, 2011). Routine use 22(1) provides the DoD with the FEHB eligibility and Federal employment information necessary to determine continuing eligibility for the TRS or the TRR program.
The DMDC will provide semi-annual data to the Postal Service to be used in the match, including Social Security Numbers, names, and dates of birth for TRS-enrolled Selected Reservists or TRR-enrolled Retired Reservists. The Postal Service will submit to the DMDC a file of matches against the Postal Service Payroll database.
The DMDC will update the database with the Postal Service FEHB eligibility information and will provide the matching results to the responsible Reserve Component. The responsible Reserve Component is responsible for verifying the information and making final determinations as to positive identification and eligibility for TRS or TRR benefits.
This computer match may have an adverse effect on individuals that are identified from the match. After verifying the accuracy of the matching information and determining ineligibility for coverage under TRS or TRR, the DoD will immediately notify the individual of his or her ineligibility for TRS or TRR, and inform the individual at the same time about procedures for enrolling in FEHB. This process will help to alleviate or minimize any break in medical coverage.
The privacy of employees will be safeguarded and protected. The Postal Service will manage all data in strict accordance with the Privacy Act and the terms of the matching agreement. Any verified data that is maintained will be managed within the parameters of Privacy Act System of Record USPS 100.400, Personnel Compensation and Payroll Records.
The Postal Service will provide 40 days advance notice to Congress and the unions for each subsequent matching agreement. Set forth below are the terms of the matching agreement, which provide information required by the Privacy Act of 1974 (5 U.S.C. 552a); 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 No. A–130, Appendix I (65 FR 77677 (December 12, 2000)).
This computer matching agreement supersedes all existing data exchange agreements or memorandums of understanding between the Department of Defense (DoD) and the United States Postal Service (USPS) applicable for determining the eligibility for the enrollment in premium based TRICARE health plans for Reserve Component (RC) Service members based on their eligibility for Federal Employees Health Benefits (FEHB) Program.
The purpose of this agreement is to establish the conditions, safeguards, and procedures under which the USPS, an independent establishment of the executive branch of the Government of the United States, section 201 of title 39, United States Code (U.S.C.), and USPS Payroll, as the recipient agency, will disclose FEHB program eligibility and Federal employment information to DoD, as the source agency. This disclosure by USPS will provide the DoD with the FEHB program eligibility and Federal employment information necessary to either verify the eligibility to enroll or verify the continuing
This CMA is executed to comply with section 552a of title 5 U.S.C., as amended (the Privacy Act of 1974), Public Law (Pub. L.) 100–503, the Computer Matching and Privacy Protection Act (CMPPA) of 1988, the Office of Management and Budget (OMB) Circular A–130, titled “Management of Federal Information Resources” at 61
Section 706 of Public Law 109–364, the John Warner National Defense Authorization Act of 2007, amended section 1076d of title 10 U.S.C. to establish the enhanced TRS Program as of October 1, 2007. Section 705 of Public Law 111–84, National Defense Authorization Act for Fiscal Year 2010, amended section 1076e of title 10 U.S.C. to establish the TRR Program as of October 29, 2009. RC Service members who have continuing eligibility for the FEHB Program pursuant to chapter 89 of title 5 U.S.C. are not eligible to enroll, or continue an enrollment, in the TRS or the TRR Program. This agreement implements the additional validation processes needed by DoD to insure RC Service members eligible for the FEHB Program may not enroll, or may not continue a current enrollment, in the TRS or the TRR Program.
1. DoD—Department of Defense
2. USPS—United States Postal Service Payroll processing unit in Eagan, MN
3. FEHB Program—Federal Employees Health Benefits Program
4. TRS Program—TRICARE Reserve Select, a premium based TRICARE military health plan for members of the Selected Reserve of the Ready Reserve of the Armed Forces of the United States
5. TRR Program—TRICARE Retired Reserve, a premium based TRICARE military health plan for members of the Retired Reserve of the Armed Forces of the United States
6. DMDC—Defense Manpower Data Center
7. DEERS—Defense Eligibility Enrollment and Reporting System
8. OASD(RA)—Office of the Secretary of Defense for Reserve Affairs
9. Recipient Agency—as defined by the Privacy Act (section 552a(a)(9) of title 5 U.S.C.), the agency receiving the records contained in a system of records from a source agency for use in a matching program. USPS is the recipient agency.
10. Source Agency—as defined by the Privacy Act (section 552a(a)(11) of title 5 U.S.C.), the agency which discloses records contained in a system of records to be used in a matching program. DoD DMC is the source agency.
11. TMA—the TRICARE Management Activity
Under the terms of this matching agreement, the Defense Manpower Data Center (DMDC) will provide to USPS Payroll a file of records consisting of Social Security Number (SSN), date of birth (DOB), and the name of Service members of the Ready Reserve, Standby Reserve, and Retired Reserve of the Armed Forces of the United States. DMDC will update the Defense Eligibility Enrollment Reporting System (DEERS) record of those RC Service members with FEHB Program eligibility information from the USPS response file. The Office of the Assistant Secretary of Defense for Reserve Affairs (OASD(RA)) will be responsible for providing the verified information to the RCs to aid in processing of TRS and TRR eligibility determinations.
USPS agrees to conduct two computer matches within a calendar year of the records of RC Service members provided by DMDC matched with the information found in USPS Payroll system for permanent employees in a current pay status. USPS will validate the identification of the RC records that match with the name, SSN and DOB provided by DMDC. USPS Payroll will provide the Civilian Agency Indicator, the full FEHB Program Plan Code, a Multiple Record Indicator, and a DOB Match Indicator. USPS Payroll will forward a response file to DMDC within 30 business days following the receipt of the initial finder file and for all subsequent files submitted.
1.
As a condition of enrollment into TRS or TRR Program, Service members certify they are not eligible for the FEHB Program. Since there is no mandatory termination date for TRS, and the mandatory termination date for TRR is age 60, DoD will validate the eligibility status of the member on a semiannual basis using data from the USPS Payroll. Absent the matching agreement, the enrolled RC population would be required to recertify their eligibility for the FEHB Program every year. This would be an onerous process for Service members as well as significant expense for DoD. The use of computer technology to transfer data between DMDC and USPS Payroll is faster and more efficient than the use of any other manual process to verify eligibility information for the FEHB Program.
2.
The derived benefits from this matching operation are primarily not quantifiable. DoD is responding to statute to exclude from the TRS and the TRR Programs Service members eligible for the FEHB Program. No savings will accrue to DoD as a result of this match. Eligible beneficiaries will receive care they are entitled to under the law.
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The TRICARE Management Activity (TMA) will inform all TRS and TRR sponsors of computer matching activities at the time of enrollment by means of the encounter statement on the DD Form 2896–1, “RC Health Coverage Request Form.” The DD Form 2896–1 is used to coordinate enrollment into the TRS Program or the TRR Program. RC Service members certify at the time of enrollment that they are not eligible for the FEHB Program. In order to provide direct notice to those Service members enrolled in TRS or TRR, DMDC will first need the information from USPS Payroll to identify TRS and TRR participants who are eligible for the FEHB Program. Once DMDC receives that information, Service members enrolled in TRS and TRR identified by the USPS Payroll matching result as FEHB eligible will be notified by their RC in writing of this status. The Service members enrolled in TRS or TRR are requested to terminate TRS or TRR coverage if the USPS Payroll information is correct or to seek RC assistance to determine their proper eligibility for the FEHB Program if the USPS Payroll data is incorrect. The RCs and TMA will also provide qualifying information for TRS and TRR to RC Service members through beneficiary handbooks, pamphlets, educational materials, press releases, briefings, and via the TMA Web site.
Any deficiencies as to direct notice to the individual for the matching program are resolved by the indirect or constructive notice that is afforded the individual by agency publication in the FR of both the:
1. Applicable routine use notice, as required by section 552(e)(11) of title 10 U.S.C. permitting the disclosure of the FEHB Program eligibility information for DoD TRS and TRR Program eligibility purposes.
2. The proposed match notice, as required by section 552(a)(e)(12) of title 10 U.S.C., announcing an agency's intent to conduct computer matching for verification of FEHB Program eligibility for determining eligibility for TRS and TRR Program.
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USPS Payroll will retain all personally identifiable records received from DMDC only for the period of time required for any processing related to the matching program. USPS Payroll will delete the DMDC finder file upon completion of the match. The electronic data provided as part of the matching program will remain the property of the agency furnishing the files and will be destroyed after the matching program is completed, but not more than 90 days after receipt of the electronic data except for those records that must be retained in the individual's permanent case file in order to meet evidentiary requirements. In any such case, the data is deleted once it is no longer needed. Destruction will be accomplished by shredding, burning or electronic erasure.
As soon as set up processing for the next match has been completed and any duplicated hits identified, the information generated through the match will be destroyed unless the information must be retained to meet evidential requirements.
DoD and USPS Payroll will safeguard information provided under this agreement as follows:
1. Each agency shall establish appropriate administrative, technical, and physical safeguards to assure the security and confidentiality of records and to protect against any anticipated threats or hazard to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.
2. Access to the records matched and to any records created by the match will be restricted only to those authorized employees and officials who need it to perform their official duties in connection with the uses of the information authorized in this agreement.
3. The records matched and any records created by the match will be stored in an area that is physically safe from access by unauthorized persons during duty hours as well as non-duty hours or when not in use.
4. The records matched, and any records created by the match, will be processed under the immediate supervision and control of authorized personnel, to protect the confidentiality of the records in such a way that
5. All personnel who will have access to the records exchanged and to any records created by this exchange are advised of the confidential nature of the information, the safeguards required to protect the information and the civil and criminal sanctions for noncompliance contained in applicable Federal Laws.
6. USPS Payroll and DMDC may make onsite inspections, and may make other provisions to ensure that each agency is maintaining adequate safeguards.
The Data Integrity Boards (DIB) of USPS and DoD reserve the right to monitor compliance of systems security requirements, including, if warranted, the right to make onsite inspections for purposes of auditing compliance, during the life of this Agreement, or its 12 month extension period.
1. The matching files exchanged under this agreement remain the property of the providing agency and as described in Section J.
2. The data exchanged under this agreement will be used and accessed only for the purpose of determining eligibility for premium based TRICARE health plan such as the TRS and TRR Programs.
3. Neither DoD nor USPS will extract information from the electronic data files concerning the individuals that are described therein for any purpose not stated in this agreement.
4. Except as provided in this agreement, neither DoD nor USPS will duplicate or disseminate the data produced without the disclosing agency's permission. Neither agency shall give such permission unless the re-disclosure is required by law or essential to the conduct of the matching program. In such cases, DoD and USPS will specify in writing what records are being disclosed and the reasons that justify such disclosure.
DMDC estimates that at least 99% of the information in the finder file is accurate based on their operational experience. USPS Payroll is a highly reliable source of statistical data on the Postal Service workforce. However, accuracy and completeness of each data element within the individual records that comprise this aggregate are not conclusive. Findings emanating from individual records warrant further examination and verification as to its accuracy, timeliness, and completeness with the data subject.
Expenses incurred by this data exchange will not involve any payments or reimbursements between USPS and DoD.
1. This matching agreement, as signed by representatives of both agencies and approved by the respective agency's Data Integrity Boards (DIB), shall be valid for a period of 18 months from the effective date of the agreement.
2. When this agreement is approved and signed by the Chairpersons of the respective DIBs, the USPS, as the recipient agency, will submit the agreement and the proposed public notice of the match as attachments in duplicate via a transmittal letter to OMB and Congress for review. The time period for review begins as of the date of the transmittal letter.
3. USPS will forward the public notice of the proposed matching program for publication in the
4. The effective date of the matching agreement and date when matching may actually begin shall be at the expiration of the 40 day review period for OMB and Congress, or 30 days after publication of the matching notice in the
5. This agreement may be renewed for 12 months after the initial agreement period as long as the statutory requirement for the data match exists, subject to the Privacy Act, including certification by the participating agencies to the responsible DIBs that:
a. The matching program will be conducted without change, and
b. The matching program has been conducted in compliance with the original agreement.
6. This agreement may be modified at any time by a written modification from either agency that satisfies both parties and is approved by the DIB of each agency.
7. This agreement may be terminated at any time with the consent of both parties. If either party does not want to continue this program, it should notify the other party of its intention not to continue at least 90 days before the end of the then current period of the agreement. Either party may unilaterally terminate this agreement upon written notice to the other party requesting termination, in which case the termination shall be effective 90 days after the date of the notice or at a later date specified in the notice provided the expiration date does not exceed the original or the extended completion date of the match.
The purpose of this matching agreement is to verify eligibility of Service member enrolling or enrolled in the TRS or the TRR Programs. By statute, such coverage may be provided if the person is not eligible for the FEHB Program. FEHB Program eligibility can only be obtained from USPS, and without this information, a determination of continued eligibility cannot be made. Matching must occur regardless of the associated cost or anticipated benefits. Accordingly, the cost benefit is waived.
The contacts on behalf of DoD are:
Mr. Samuel P. Jenkins, Director for Privacy, Defense Privacy and Civil Liberties Office, 1901 S. Bell Street, Suite 920, Arlington, VA 22202, (703) 607–2943;
Mr. David M. Percich, Director, RC Systems and Integration, Office of the Assistant Secretary of Defense for Reserve Affairs, 1500 Defense Pentagon, Room 2E565, Washington, DC 20301, (703) 693–2238;
Ms. Dena Colburn, DEERS Division, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Rd., Seaside, CA 93955–6771, (831) 583–2400 x4332.
The contacts on behalf of USPS are:
Mr. M. Alan Ruof, Manager Benefits Program, 475 L'Enfant Plaza SW., Washington, DC 20260–410, (202) 268–4187, (202) 268–3337 fax, Email:
Ms. Christine Harris, HQ Payroll Accountant, 2825 Lone Oak Parkway, Eagan MN 55121–9500, (651) 406–2128, (651) 406–1212 fax, Email:
The authorized program officials, whose signatures appear below, accept and expressly agree to the terms and conditions expressed herein, confirm that no verbal agreements of any kind shall be binding or recognized, and hereby commit their respective organizations to the terms of this agreement.
Ms. Jessica L. Wright, Principal Deputy Assistant Secretary of Defense for Reserve Affairs, Office of the Secretary of Defense for Reserve Affairs;
Ms. Mary Snavely-Dixon, Director, Defense Manpower Data Center.
The respective DIBs having reviewed this agreement and finding that it complies with applicable statutory and regulatory guidelines signify their respective approval thereof by the signature of the officials appearing below.
Mr. Michael L. Rhodes, Chair, Defense Data Integrity Board, Department of Defense.
Michele Mulleady, Chief Privacy Officer, Secretary, Data Integrity Board, United States Postal Service;
The respective DIBs having reviewed this agreement and found that it complies with applicable statutory and regulatory guidelines signify their respective approval thereof by the signature of the officials appearing below.
Mary Anne Gibbons, General Counsel and Executive Vice President, Chairperson, Data Integrity Board, United States Postal Service.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the NYSE Amex Options Fee Schedule (“Fee Schedule”) to amend the Rights Fee that is charged to Specialists, e-Specialists and Directed Order Market Makers. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule to amend the Rights Fee that is charged to Specialists, e-Specialists, and Directed Order Market Makers (“DOMMs”). The Exchange believes the proposed change will allow it to recoup some of the costs of listing new option classes that may not generate sufficient trading activity and, in turn, trading-related revenues.
Presently, the Exchange assesses a monthly Rights Fee to Specialists, e-Specialists, and DOMMs. The current Rights Fee is variable, based on the Average Daily National Customer Contracts traded, calculated over the prior three months, with a one-month lag. For example, the Average Daily National Customer Contracts traded for January, February, and March are used to arrive at the Rights Fee applicable to a particular option for trading in the month of May. The table below contains the Average Daily National Customer Contracts traded tiers and the associated Rights Fee:
The Exchange proposes to amend the tiers and fees as follows:
The 0-to-200 tier will only apply to options listed after June 1, 2012. Options listed before June 1, 2012 will be “grandfathered” and, as such, subject to the monthly base rate per issue of $75 if they fall into the 0 to 200 contract volume tier. The Exchange will publish on its Web site a list of all “grandfathered” options.
By adding a new, lower volume tier, the Exchange intends to recoup the costs associated with a new options listing that does not in turn generate sufficient trading volume and associated
Additionally, the Exchange wishes to explain the manner in which the monthly Rights Fee is apportioned among the Specialist, e-Specialist and DOMM participants in the event that participant volumes are all zero in a given month. Presently, the Rights Fee is shared among participants according to the relative amount of trading volume each participant accounts for.
The participants in aggregate account for 15,000 contracts. Each participant is then charged based on its proportion of the total volume. For example:
In the scenario where the Specialist, the e-Specialist, or DOMMs transact zero volume in a month, the Exchange splits the Rights Fee equally among the Specialist and e-Specialist, such that each Specialist and/or e-Specialist participant is liable for 50% of the Rights Fee. In the event that there is only a Specialist or e-Specialist and there are no DOMM volumes, then that sole Specialist or e-Specialist incurs 100% of the Rights Fee applicable to the option issue.
Finally, the Exchange proposes to amend the Fee Schedule to reflect the Exchange's name change to NYSE MKT LLC.
The proposed changes will be operative on June 1, 2012.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)
The Exchange believes that the proposed change to Rights Fees are reasonable, given the need to offset some of the costs associated with listing new options that do not subsequently trade sufficiently to generate trade-related revenues for the Exchange.
The proposed change is reasonable and equitable because it averts the need to share the costs of supporting low volume option issues among all Exchange participants. Instead, those participants, specifically Specialists, e-Specialists, and DOMMs that are subject to the new, lower volume tier and Rights Fee contribute toward some of the Exchange's costs in supporting trading in low volume issues. The Exchange notes that unless a Specialist or e-Specialist applies to be the Specialist or e-Specialist in a new option issue, it cannot be subject to the Rights Fee charges. Similarly, a Market Maker can opt out of receiving Directed Orders on a symbol-by-symbol basis and thereby avert incurring the Rights Fee. Given this ability to knowingly incur the fee, or conversely avoid it, the Exchange believes that the proposal is reasonable, equitable, and not unfairly discriminatory, as participants may decide of their own accord to subject themselves to the proposed fee. Further, other Exchange participants are not being asked to subsidize the listing of new options that subsequently do not generate sufficient trading revenues to offset the Exchange's costs in supporting those new option listings.
The Exchange believes that it is reasonable, equitable and not unfairly discriminatory to apportion the Rights Fee equally among the Specialist and e-Specialist in the event that none of the Specialist, e-Specialist or DOMMs have any volume in a given month. Specifically, the Exchange is unable to list an option unless a Specialist or e-Specialist opts to include it in their assignment; it is able to list an option without a DOMM. As such, in the event that participant volumes are all zero in a given month, limiting the Rights Fee assessment to the Specialist and e-Specialist is warranted given that, unlike a DOMM, they can request to have the option delisted if they feel that the opportunity cost of the listing, i.e. the Rights Fee, outweighs the benefit of the listing, the potential trading opportunities.
The proposed change also is not unfairly discriminatory as it applies equally to all Specialists, e-Specialists, and DOMMs. As noted, those participants are able to avoid incurring the fee by simply not applying to trade options listed on or after June 1, 2012. The fee for options in the newly proposed volume tier of 2 [sic] to 200 Average National Daily Customer Contracts is only $250 per issue, so any one participant would never pay more than that per option class. As noted, the Exchange is implementing this fee for all options listed on or after June 1, 2012, and then only when the option fails to achieve greater than 200 Average National Daily Customer Contracts.
For these reasons, the Exchange believes that the proposed change is reasonable, equitable, and not unfairly discriminatory.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to introduce the Message Efficiency Incentive Program (“MEIP”) to its fee schedule and codify it in footnote c of the fee schedule. Under the MEIP, Members will receive standard rebates and tier rebates as provided on the EDGX fee schedule so long as the Member's average inbound message-to-trade ratio, measured monthly, is at or less than 100:1 for that month. The Exchange notes that the message-to-trade ratio is calculated by including total messages as the numerator (orders, cancels, and cancel/replace messages) and dividing it by total executions.
The Exchange notes that Members sending fewer than 1 million messages per day are exempt from MEIP. Because of a Market Maker's
The Exchange may exclude one or more days of data for purposes of calculating the message-to-trade ratio for a Member if the Exchange determines, in its sole discretion, that one or more Members or the Exchange experienced a bona fide systems problem.
The Exchange proposes to implement these amendments to its fee schedule on June 1, 2012.
The Exchange believes that the proposed rule changes are consistent with the objectives of Section 6 of the Act,
The Exchange believes that the MEIP is designed to provide for the equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. The Exchange believes that the MEIP will promote a more efficient marketplace and enhance the trading experience of all Members by encouraging Members to more efficiently participate in the marketplace, ensuring that systems capacity/bandwidth is utilized efficiently while still encouraging the provision of liquidity in volatile, high-volume markets and provide Members with order management flexibility. Unfettered growth in bandwidth consumption can have a detrimental effect on all market participants who are potentially compelled to upgrade capacity as a result of the bandwidth usage of other participants. All Members are still free to manage their order and message flow as is consistent with their business models. However, Members who more efficiently participate by sending average monthly inbound message-to-trade ratios of equal to or less than 100:1 for that month are rewarded with the standard rebates and tiered fees provided in the fee schedule. The Exchange believes that this will promote a more efficient marketplace, encourage liquidity provision and enhance the trading experience of all Members on an ongoing basis. The Exchange notes that its technology and infrastructure are still able to handle high-volume and high-volatility situations for those Members that do not satisfy the criteria of the MEIP. The Exchange believes that the proposal is equitable and non-discriminatory in that it applies uniformly to all Members, except with respect to its Members that are registered as Market Makers who meet certain criteria, as discussed in more detail below.
The MEIP is also reasonable in that it is similar to other programs offered by equities exchanges, namely Nasdaq OMX (“Nasdaq”), NYSE, and NYSE Arca. The Exchange believes the MEIP encourages Members to avoid sending extraneous messages to the Exchange's system and thereby encourages more efficient amounts of liquidity to be added to EDGX each month. The Exchange believes that the MEIP will thus discourage trading practices that offer little benefit from liquidity posted to or routed through the EDGX book that may place unwarranted burdens on EDGX's systems. Such increased “efficient” volume lowers operational, bandwidth, and surveillance costs of the Exchange and promotes more relevant quotes, which may result in lower per share costs for all Members. The increased liquidity also benefits all investors by deepening EDGX's liquidity pool, offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection.
In addition, the rebate is also reasonable in that other exchanges likewise employ similar pricing mechanisms. For example, Nasdaq
The MEIP is also similar to Nasdaq's “excessive message fee”, in which Nasdaq charges a per order fee for its members that make inefficient use of certain features of Nasdaq's routing facility.
Similar to the Exchange, Nasdaq introduced the excessive message fee to encourage more efficient liquidity provision—namely, “to address the practice of [its] members routing an order to the NYSE book through NASDAQ and quickly cancelling the order and resubmitting it at a different price if it does not execute within a short period of time. The practice offers no benefits in terms of liquidity posted to the NASDAQ book or execution or routing revenues, and could place unwarranted burdens on NASDAQ routing systems.”
The MEIP is also similar to the NYSE Amex options exchange's “Messages Fee,” which promotes efficient usage of system capacity by assessing a fee against its members that enter excessive amounts of orders and quotes that produce little or no volume based on the ratio of quotes and orders to contracts traded. Like NYSE Amex, the Exchange believes it is in the best interest of all Members who access its markets to encourage efficient usage of capacity.
Finally, the lower rebates offered to Members who do not satisfy the MEIP criteria allows the Exchange to recoup costs associated with the higher costs of surveillance, data, storage, bandwidth, and other infrastructure associated with higher message traffic compared to those Members with lower message traffic. The Exchange believes it to be equitable for Members to get lower rebates when their higher message traffic causes the Exchange to incur higher costs and for Members to receive higher rebates when their message traffic causes the Exchange to incur lower costs.
The Exchange believes that the proposal is allocated in a reasonable and equitable manner because it exempts Members that are registered as Market Makers that contribute to market quality by providing higher volumes of liquidity and have enhanced obligations under Exchange Rule 11.21(d) to maintain fair and orderly markets and quote continuous, two-sided markets. The proposal is equitable because it provides discounts that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and introduction of higher volumes of orders into the price and volume discovery processes. The Exchange believes that allowing Market Makers to be exempt from the MEIP will attract additional order flow and liquidity to the Exchange. This concept is similar to the structure of varying rebate schedules on other exchanges, where it is common to
Thus, the Exchange believes that the MEIP's fees among its Members are uniform except with respect to reasonable and well-established distinctions with respect to market making and Members with lower message traffic (those that send less than 1 million messages/day). These distinctions or analogous versions of them have been previously filed with the Commission.
The Exchange also notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The proposed rule change reflects a competitive pricing structure designed to encourage market participants to direct their order flow to the Exchange. The Exchange believes that the proposed rates are equitable and non-discriminatory in that they apply uniformly to all Members, except with respect to Market Makers for the reasons cited above. The Exchange believes the fees and credits remain competitive with those charged by other venues and therefore continue to be reasonable and equitably allocated to Members.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
Flag PA is yielded where orders utilize the midpoint routing strategy RMPT
Currently, the Exchange charges additional fees to Members that fail to pay all dues, fees, assessments and charges owed to the Exchange by the prescribed due date. Exchange Rule 15.1(a) states that the Exchange may prescribe such reasonable dues, fees, assessments or other charges as it may, in the Exchange discretion, deem appropriate. In addition, paragraph 13 of the Exchange's User Agreement,
The Exchange proposes to implement these amendments to its fee schedule on June 1, 2012.
The Exchange believes that the proposed rule changes are consistent with the objectives of Section 6 of the Act,
The Exchange believes that the free rate for Flag PA (the RMPT routing strategy adding liquidity) is designed to provide for the equitable allocation of reasonable dues, fees and other charges among its members and other person using its facilities. The Exchange believes that reducing the charge assessed for Flag PA from $0.0010 per share to $0.0000 per share will incentivize Members to utilize the RMPT routing strategy to route through EDGA, thereby increasing the amount of liquidity on EDGA, before routing to other low cost destinations and other venues. The Exchange believes that increased liquidity may increase potential revenue to the Exchange, and would allow the Exchange to spread its administrative and infrastructure costs over a greater number of shares, leading to lower per share costs. These lower per share costs would allow the Exchange to pass on the savings to Members in the form of lower rates. The increased liquidity also benefits all investors by deepening EDGA's liquidity pool, offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection. In addition, the Exchange believes that the proposed rate is non-discriminatory because the charge will apply uniformly to all Members.
In order to provide additional transparency to Members, the Exchange proposes to codify its existing policy regarding late fees in Footnote d of the fee schedule. The Exchange believes that by including proposed Footnote d it will help to promote market transparency and improve investor protection by displaying the Exchange's policy regarding late fees to Members on its fee schedule along with the Exchange's other rebates and charges. The Exchange also notes that it is equitable and reasonable to charge a Member a late fee on past due balances because it offsets administrative and collection costs associated with past due accounts and incentivizes Members to pay on time in accordance with the terms of the Member's User Agreement. In addition, a late fee of 1% is reasonable because it is in line with the late fees assessed by other exchanges.
The Exchange also notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The proposed rule change reflects a competitive pricing structure designed to incent market participants to direct their order flow to the Exchange. The Exchange believes that the proposed rates are equitable and non-discriminatory in that they apply uniformly to all Members. The Exchange believes the fees and credits remain competitive with those charged by other venues and therefore continue to be reasonable and equitably allocated to Members.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 17, 2012, NYSE Amex LLC (“NYSE Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NYSE Amex Equities Rule 107B (“Rule 107B”) was adopted as a pilot program in January 2010 and established a new class of off-floor market participants referred to as Supplemental Liquidity Providers or “SLPs.”
To qualify as an SLP under Rule 107B(c), a member organization is subject to a number of conditions, including adequate trading
The Exchange proposes to amend Rule 107B to add a category of SLPs that would be registered as market makers at the Exchange. As proposed, the term “SLP” would refer to member organizations that provide supplemental liquidity and there would be two classes of SLP. The existing SLP member organizations and associated requirements would continue unchanged and would be referred to as “SLP–Prop.”
The proposed new class of SLP would be referred to as “SLMM”. SLMMs would have differing qualification requirements and increased regulatory obligations as compared to SLP–Props, but would otherwise be subject to the existing SLP program.
Under the proposal, an SLP can choose to be either an SLP–Prop or an SLMM. The proposed SLMMs would have different qualification requirements, specified regulatory obligations, expanded entry of order requirements, and a security-by-security withdrawal ability. SLP–Props and SLMMs would be subject to the same application and overall program withdrawal process, quoting requirements, manner by which SLP securities are assigned, and non-regulatory penalties.
To be approved as an SLMM, an SLMM must meet specified regulatory obligations, which are set forth in proposed Rule 107B(d). Failure to comply with these regulatory obligations could result in disciplinary action. First, pursuant to proposed Rule 107B(d)(1), the SLMM must maintain a continuous two-sided quotation in those securities in which the SLMM is registered to trade as an SLP (“Two-Sided Obligation”). As proposed, the Two-Sided Obligation applicable to SLMMs would be virtually identical to the market-maker two-sided obligations adopted by the equities markets in 2010.
Pursuant to Rule 107B(c)(6), SLPs must currently maintain adequate information barriers between the SLP unit and the member organization's customer, research and investment-banking business. This requirement ensures that the orders submitted by SLPs are proprietary only, and are not related to any customer-facing business, including potentially market-making businesses. The Exchange proposes to maintain this requirement for SLP–Props.
Proposed Rule 107B(i) would modify the entry of order requirements. SLP–Prop would continue to be required to enter proprietary orders only. As proposed, SLMMs would similarly be required to enter orders for their own account, however, they could be entered in either a proprietary capacity or a principal capacity on behalf of an affiliated or unaffiliated person. SLMM could submit SLMM quotes to the Exchange on behalf of customers, or other unaffiliated or affiliated persons.
The Exchange proposes to add an additional ability for SLMMs to voluntarily withdraw from registration as a market maker in a particular security. Under proposed Rule 107B(f)(2), an SLMM may withdraw its registration in a security by giving written notice to the SLP Liaison Committee and FINRA. As proposed, the Exchange may require a certain minimum notice period for withdrawal, and may place such other conditions on withdrawal and re-registration following withdrawal, as it deems appropriate in the interests of maintaining fair and orderly markets. An SLMM that fails to give advanced written notice of termination to the Exchange may be subject to formal disciplinary action.
Under proposed Rule 107B(h), an SLP–Prop may not also act as an SLMM in the same securities in which it is registered as an SLP–Prop and vice versa. If a member organization has more than one business unit, and the SLP–Prop business unit is walled off from the SLMM business unit, the member organization may engage in both an SLP–Prop and SLMM business from those different business units. Provided there is no coordinated trading between the SLP–Prop and SLMM business units, they may be assigned the same securities.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that adding an additional registered market maker program to the Exchange will promote just and equitable principles of trade as it could potentially expand the number of market participants providing liquidity at the Exchange, to the benefit of investors. In particular, the proposal would allow additional market participants, including member organizations that are registered as market makers on other exchanges that engage in a customer-facing business, to participate in the SLP program.
The proposed SLMMs would provide supplemental liquidity in addition to the liquidity provided by DMMs and SLP–Props, and the Exchange would continue to require that a DMM be registered in every security listed on the Exchange. Because the proposed SLMMs would be required to meet the Two-Sided Obligation applicable to all equities market makers, the Commission believes that the proposed rule change would also remove impediments to and perfect the mechanism of a free and open market and a national market system by increasing the number of market participants that are required to maintain a continuous two-sided quotation a specified percentage away from the NBBO in the securities in which they are registered. Moreover, the proposed SLMM would be subject to other currently existing requirements.
The Commission finds that the proposal is not unfairly discriminatory. Registration as an SLP–Prop or SLMM is available to all Exchange member organizations that satisfy the requirements of proposed Rule 107B(c) or (d). The Commission finds further that the proposal to establish procedures for the registration, withdrawal, and disqualification of SLMM, and the SLMM quoting requirements, are consistent with the requirements of Section 6(b)(5) of the Act. The Exchange's proposed rules provide an objective process by which a member organization could become a SLMM and for appropriate oversight by the Exchange to monitor for continued compliance with the terms of these provisions. The Commission also notes that these provisions are similar to the existing provisions that apply to the current SLP program.
In addition, the Commission believes that the proposed rule change is consistent with the requirements of the Act because the proposed requirements for the SLMMs are based on existing, approved requirements for registered market makers on other exchanges. In addition to the Two-Sided Obligation, the proposed SLMMs would also be required to assist in the maintenance of a fair and orderly market, as reasonably practicable, and maintain net capital consistent with federal requirements for market makers.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing with the Commission a proposal to amend Exchange Rule 11.19, entitled “Short Sales,” to adopt certain changes related to Regulation SHO in connection with the Exchange's recent status as the primary listing market for certain securities.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
On February 26, 2010, the Commission adopted amendments to Rules 200(g) and 201 of Regulation SHO.
Proposed Exchange Rule 11.19(b)(1), “Definitions,” defines the terms “covered security,” “listing market,” and “national best bid” as having the same meaning as such terms have in Rule 201 of Regulation SHO.
Under Proposed Exchange Rule 11.19(b)(2), Short Sale Price Test, the System
Under Proposed Exchange Rule 11.19(b)(3), “Determination of Trigger Price,” the Exchange will continuously compare each execution by the System with the BATS Official Closing Price
Under Proposed Exchange Rule 11.19(b)(4), “Duration of Short Sale Price Test,” once triggered, the short sale price test restriction shall remain in effect until the next trading day when a national best bid for the covered security is calculated and disseminated on a current and continuing basis by a plan processor pursuant to an effect [sic] national market system [sic],
The proposed language for Exchange Rule 11.19(b) is substantively identical to paragraphs (a) through (d) of Rule 4763 of the rules of The NASDAQ Stock Market LLC (“Nasdaq”), paragraphs (a) through (d) of Rule 440B of the rules of the New York Stock Exchange, LLC (“NYSE”) and sub-paragraphs (i) through (iv) of Rule 7.16(f) of the rules of NYSE Arca Equities, Inc. (“NYSE Arca”). The Exchange has separately adopted rules implementing other aspects related to the amendments to Regulation SHO, which are described in the remainder of Nasdaq Rule 4763, NYSE Rule 440B and NYSE Arca Rule 7.16.
The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change imposes any burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b–4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 12, 2012, the Chicago Board Options Exchange, Incorporated (“Exchange” or “CBOE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to adopt Cancel Newest, Cancel Oldest, and Cancel Both Self-Trade Prevention modifiers on CBSX. As proposed, a CBSX trader may elect for none, or all, of his proprietary orders and quotes to be marked with one of these types of Self-Trade Prevention modifiers.
If a CBSX trader elects the Cancel Newest Self-Trade Prevention modifier, any incoming order or quote submitted by that CBSX trader will not execute against opposite side resting interest from the Same CBSX Trader. The incoming order or quote (or any portion thereof) will be canceled back to the originating CBSX trader if such order or quote cannot trade with another eligible order or quote originating from any origin other than the Same CBSX Trader (“Another CBSX Trader”). The incoming order or quote may only trade with an eligible order or quote originating from Another CBSX Trader if the order or quote originating from Another CBSX Trader is at as good a price as the order or quote from the Same CBSX Trader that is being “skipped over.” The resting order or quote from the Same CBSX Trader will remain on the book. In the case of an opening or re-opening, the newer of the two orders or quotes submitted by the Same CBSX Trader will be canceled. The older order or quote will be permitted to trade with eligible orders or quotes originating from Another CBSX Trader, and any remaining portion thereof will remain in the book.
If a CBSX trader elects the Cancel Oldest Self-Trade Prevention modifier, any incoming order or quote submitted by that CBSX trader will not execute against opposite side resting interest from the Same CBSX Trader. When a CBSX trader submits an incoming order or quote that would trade against opposite side resting interest from the Same CBSX Trader, the opposite side resting interest will be canceled. The incoming order or quote will be eligible to trade with another eligible order or quote originating from Another CBSX Trader. If any portion of the incoming order or quote does not trade with another eligible order or quote originating from Another CBSX Trader, it will be entered into the book. In the case of an opening or re-opening, the older of the two orders or quotes submitted by the Same CBSX Trader will be canceled. The newer order or quote will be permitted to trade with eligible orders or quotes originating from Another CBSX Trader, and any remaining portion thereof will be entered into the book.
If a CBSX trader elects the Cancel Both Self-Trade Prevention modifier, any incoming order or quote submitted by that CBSX trader will not execute against opposite side resting interest from the Same CBSX Trader. When a CBSX trader submits an incoming order or quote that would trade against opposite side resting interest from the Same CBSX Trader, the opposite side resting interest will be canceled. The incoming order or quote (or any portion thereof) will be canceled back to the Same CBSX Trader if such order or quote (or part of such order or quote) cannot trade with another eligible order or quote originating from Another CBSX Trader. In the case of an opening or re-opening, both of the two orders or quotes will be canceled.
Under the proposed Self-Trade Prevention modifier rules, orders or quotes may skip over orders or quotes from the Same CBSX Trader and trade against eligible orders or quotes with lower priority that originate from Another CBSX Trader, provided the prices are the same. Therefore, the Exchange proposes to add Interpretations and Policies .01 to Rule 52.1, Matching Algorithm/Priority, to provide that in instances in which the Self-Trade Prevention modifiers are implicated, the Self-Trade Prevention modifier rules will supersede other allocation methods only for the purpose of preventing self-trades, as described in the proposed Self-Trade Prevention modifier rule.
Finally, CBSX Rule 51.8(t) provides for a Market-Maker Trade Prevention Order which, if combined with a Self-Trade Prevention modifier, could cause a conflict in order handling. Thus, the Exchange proposes that, in circumstances where both the Market-Maker Trade Prevention Order and a Self-Trade Prevention modifier are implicated, the Self-Trade Prevention modifier shall take precedence.
Once the CBSX system is enabled to permit the use of Self-Trade Prevention modifiers, and prior to their implementation, CBSX will announce the availability of Self-Trade Prevention modifiers to CBSX traders via Regulatory Circular.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
Self-Trade Prevention modifiers for proprietary orders and quotes of CBSX traders are, according to the Exchange, designed to prevent a market participant from unintentionally causing a proprietary self-trade. As such, Self-Trade Prevention modifiers could provide firms with the opportunity to better manage order flow and prevent undesirable self-executions and the potential for, or appearance of, “wash sales.”
The proposed Self-Trade Prevention modifier rules will apply to orders and quotes because the Exchange believes
The Commission also believes that the aspect of the proposal which would add Interpretations and Policies .01 to Rule 52.1 to provide that in circumstances where Self-Trade Prevention modifiers are implicated, the Self-Trade Prevention modifier rules will supersede other allocation methods only for the purpose of preventing self-trades is consistent with the Act. In addition, the Commission believes that the proposal to amend Rule 51.8(t) to provide that in circumstances in which both the Market-Maker Trade Prevention Order and a Self-Trade Prevention modifier are implicated, the Self-Trade Prevention modifier shall take precedence is consistent with the Act. The Commission believes that these amendments would clarify the application of the proposed Self-Trade Prevention modifier rules to existing CBSX rules.
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to introduce the Message Efficiency Incentive Program (“MEIP”) to its fee schedule and codify it in footnote c of the fee schedule. Under the MEIP, Members will receive standard rebates and tier rebates as provided on the EDGA fee schedule so long as the Member's average inbound message-to-trade ratio, measured monthly, is at or less than 100:1 for that month. The Exchange notes that the message-to-trade ratio is calculated by including total messages as the numerator (orders, cancels, and cancel/replace messages) and dividing it by total executions.
The Exchange notes that Members sending fewer than 1 million messages per day are exempt from MEIP. Because of a Market Maker's
The Exchange may exclude one or more days of data for purposes of calculating the message-to-trade ratio for a Member if the Exchange determines, in its sole discretion, that one or more Members or the Exchange experienced a bona fide systems problem.
The Exchange proposes to implement these amendments to its fee schedule on June 1, 2012.
The Exchange believes that the proposed rule changes are consistent with the objectives of Section 6 of the Act,
The Exchange believes that the MEIP is designed to provide for the equitable allocation of reasonable dues, fees and other charges among its Members and other persons using its facilities. The Exchange believes that the MEIP will promote a more efficient marketplace and enhance the trading experience of all Members by encouraging Members to more efficiently participate in the marketplace, ensuring that systems capacity/bandwidth is utilized efficiently while still encouraging the provision of liquidity in volatile, high-volume markets and provide Members with order management flexibility. Unfettered growth in bandwidth consumption can have a detrimental effect on all market participants who are potentially compelled to upgrade capacity as a result of the bandwidth usage of other participants. All Members are still free to manage their order and message flow as is consistent with their business models. However, Members who more efficiently participate by sending average monthly inbound message-to-trade ratios of equal to or less than 100:1 for that month are rewarded with the standard rebates and tiered fees provided in the fee schedule. The Exchange believes that this will promote a more efficient marketplace, encourage liquidity provision and enhance the trading experience of all Members on an ongoing basis. The Exchange notes that its technology and infrastructure are still able to handle high-volume and high-volatility situations for those Members that do not satisfy the criteria of the MEIP. The Exchange believes that the proposal is equitable and non-discriminatory in that it applies uniformly to all Members, except with respect to its Members that are registered as Market Makers who meet certain criteria, as discussed in more detail below.
The MEIP is also reasonable in that it is similar to other programs offered by equities exchanges, namely Nasdaq OMX (“Nasdaq”), NYSE, and NYSE Arca. The Exchange believes the MEIP encourages Members to avoid sending extraneous messages to the Exchange's system and thereby encourages more efficient amounts of liquidity to be added to EDGA each month. The Exchange believes that the MEIP will thus discourage trading practices that offer little benefit from liquidity posted to or routed through the EDGA book that may place unwarranted burdens on EDGA's systems. Such increased “efficient” volume lowers operational, bandwidth, and surveillance costs of the Exchange and promotes more relevant quotes, which may result in lower per share costs for all Members. The increased liquidity also benefits all investors by deepening EDGA's liquidity pool, offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection.
In addition, the rebate is also reasonable in that other exchanges likewise employ similar pricing mechanisms. For example, Nasdaq
The MEIP is also similar to Nasdaq's “excessive message fee”, in which Nasdaq charges a per order fee for its members that make inefficient use of certain features of Nasdaq's routing facility.
Similar to the Exchange, Nasdaq introduced the excessive message fee to encourage more efficient liquidity provision—namely, “to address the practice of [its] members routing an order to the NYSE book through NASDAQ and quickly cancelling the order and resubmitting it at a different price if it does not execute within a short period of time. The practice offers no benefits in terms of liquidity posted to the NASDAQ book or execution or routing revenues, and could place unwarranted burdens on NASDAQ routing systems.”
The MEIP is also similar to the NYSE Amex options exchange's “Messages Fee,” which promotes efficient usage of system capacity by assessing a fee against its members that enter excessive amounts of orders and quotes that produce little or no volume based on the ratio of quotes and orders to contracts traded. Like NYSE Amex, the Exchange believes it is in the best interest of all Members who access its markets to encourage efficient usage of capacity.
Finally, the lower rebates offered to Members who do not satisfy the MEIP criteria allows the Exchange to recoup costs associated with the higher costs of surveillance, data, storage, bandwidth, and other infrastructure associated with higher message traffic compared to those Members with lower message traffic. The Exchange believes it to be equitable for Members to get lower rebates when their higher message traffic causes the Exchange to incur higher costs and for Members to receive higher rebates when their message traffic causes the Exchange to incur lower costs.
The Exchange believes that the proposal is allocated in a reasonable and equitable manner because it exempts Members that are registered as Market Makers that contribute to market quality by providing higher volumes of liquidity and have enhanced obligations under Exchange Rule 11.21(d) to maintain fair and orderly markets and quote continuous, two-sided markets. The proposal is equitable because it provides discounts that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and introduction of higher volumes of orders into the price and volume discovery processes. The Exchange believes that allowing Market Makers to be exempt from the MEIP will attract additional order flow and liquidity to the Exchange. This concept is similar to the structure of varying rebate schedules on other exchanges, where it is common to tie rebates to market making obligations. For example, rewarding Market Makers with better rebates tied to their market making obligations is consistent with how Supplemental Liquidity Providers (“SLPs”) and Designated Market Makers (“DMMs”) are rebated on NYSE
Thus, the Exchange believes that the MEIP's fees among its Members are uniform except with respect to reasonable and well-established distinctions with respect to market making and Members with lower message traffic (those that send less than 1 million messages/day). These distinctions or analogous versions of them have been previously filed with the Commission.
The Exchange also notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The proposed rule change reflects a competitive pricing structure designed to encourage market participants to direct their order flow to the Exchange. The Exchange believes that the proposed rates are equitable and non-discriminatory in that they apply uniformly to all Members, except with respect to Market Makers for the reasons cited above. The Exchange believes the fees and credits remain competitive with those charged by other venues and therefore continue to be reasonable and equitably allocated to Members.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the percentage associated with the “added liquidity” to “removed liquidity” ratio in part (ii) of the Investor Tier (Footnote 13) from 70% to 60% and pluralize “Member.” Therefore, Footnote 13, will read, “Members can qualify for an Investor Tier and be provided a rebate of $0.0030 per share if they meet the following criteria: (i) On a daily basis, measured monthly, posts an ADV of at least 8 million shares on EDGX where added flags are defined as B, HA, V, Y, MM, 3, or 4; (ii) have an “added liquidity” to “removed liquidity” ratio of at least 60% where added flags are defined as B, HA, V, Y, MM, 3, or 4 and removal flags are defined as BB, MT, N, W, PI, or 6; and (iii) have a message-to-trade ratio of less than 6:1.”
Currently, the Exchange charges additional fees to Members that fail to pay all dues, fees, assessments and charges owed to the Exchange by the prescribed due date. Exchange Rule 15.1(a) states that the Exchange may prescribe such reasonable dues, fees, assessments or other charges as it may, in the Exchange discretion, deem appropriate. In addition, paragraph 13 of the Exchange's User Agreement,
The Exchange proposes to implement these amendments to its fee schedule on June 1, 2012.
The Exchange believes that the proposed rule changes are consistent with the objectives of Section 6 of the Act,
The Exchange proposes to amend the percentage associated with the “added liquidity” to “removed liquidity” ratio in part (ii) of the Investor Tier (Footnote 13) from 70% to 60% because the Exchange believes that a ratio of at least 60% represents a more appropriate criterion for Members to qualify for a rebate of $0.0030 per share associated with the Investor Tier. The Exchange believes the proposed ratio incentivizes Members to direct a high quality order flow to the Exchange because the Exchange believes that such high quality liquidity provisions will encourage price discovery and market transparency and improve investor protection by encouraging growth in liquidity. In addition, the Exchange also believes that the proposal is non-discriminatory because it applies uniformly to all Members.
In order to provide additional transparency to Members, the Exchange proposes to codify its existing policy regarding late fees in Footnote d of the fee schedule. The Exchange believes that by including proposed Footnote d it will help to promote market transparency and improve investor protection by displaying the Exchange's policy regarding late fees to Members on its fee schedule along with the Exchange's other rebates and charges. The Exchange also notes that it is equitable and reasonable to charge a Member a late fee on past due balances because it offsets administrative and collection costs associated with past due accounts and incentivizes Members to pay on time in accordance with the terms of the Member's User Agreement. In addition, a late fee of 1% is reasonable because it is in line with the late fees assessed by other exchanges.
The Exchange also notes that it operates in a highly-competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The proposed rule change reflects a competitive pricing structure designed to incent market participants to direct their order flow to the Exchange. The Exchange believes that the proposed rates are equitable and non-discriminatory in that they apply uniformly to all Members. The Exchange believes the fees and credits remain competitive with those charged by other venues and therefore continue to be reasonable and equitably allocated to Members.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 17, 2012, New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NYSE Rule 107B was adopted as a pilot program in October 2008 and established a new class of off-floor market participants referred to as Supplemental Liquidity Providers or “SLPs.”
To qualify as an SLP under NYSE Rule 107B(c), a member organization is subject to a number of conditions, including adequate trading infrastructure to support SLP trading activity, quoting and volume performance that demonstrates an ability to meet the 10% ADV requirement, and use of specified SLP mnemonics. In addition, the business unit of the member organization acting as an SLP must enter proprietary orders only and have adequate information barriers between the SLP unit and any of the member organization's customer, research, and investment-banking business. Pursuant to NYSE Rule 107B(h)(2)(A), a DMM may also be an SLP, but not in the same securities in which it is registered as a DMM.
The Exchange proposes to amend NYSE Rule 107B to add a category of SLPs that would be registered as market makers at the Exchange. As proposed, the term “SLP” would refer to member organizations that provide supplemental liquidity and there would be two classes of SLP. The existing SLP member organizations and associated requirements would continue unchanged and would be referred to as “SLP–Prop.”
The proposed new class of SLP would be referred to as “SLMM”. SLMMs would have differing qualification requirements and increased regulatory obligations as compared to SLP–Props, but would otherwise be subject to the existing SLP program.
Under the proposal, an SLP can choose to be either an SLP–Prop or an SLMM. The proposed SLMMs would have different qualification requirements, specified regulatory obligations, expanded entry of order requirements, and a security-by-security withdrawal ability. SLP–Props and SLMMs would be subject to the same application and overall program withdrawal process, ADV and quoting requirements, manner by which SLP securities are assigned, and non-regulatory penalties.
To be approved as an SLMM, an SLMM must meet specified regulatory obligations, which are set forth in proposed NYSE Rule 107B(d). Failure to comply with these regulatory obligations could result in disciplinary
Pursuant to NYSE Rule 107B(c)(6), SLPs must currently maintain adequate information barriers between the SLP unit and the member organization's customer, research and investment-banking business. This requirement ensures that the orders submitted by SLPs are proprietary only, and are not related to any customer-facing business, including potentially market-making businesses. The Exchange proposes to maintain this requirement for SLP–Props.
Proposed NYSE Rule 107B(j) would modify the entry of order requirements. SLP–Prop would continue to be required to enter proprietary orders only. As proposed, SLMMs would similarly be required to enter orders for their own account, however, they could be entered in either a proprietary capacity or a principal capacity on behalf of an affiliated or unaffiliated person. SLMM could submit SLMM quotes to the Exchange on behalf of customers, or other unaffiliated or affiliated persons.
The Exchange proposes to add an additional ability for SLMMs to voluntarily withdraw from registration as a market maker in a particular security. Under proposed NYSE Rule 107B(f)(2), an SLMM may withdraw its registration in a security by giving written notice to the SLP Liaison Committee and FINRA. As proposed, the Exchange may require a certain minimum notice period for withdrawal, and may place such other conditions on withdrawal and re-registration following withdrawal, as it deems appropriate in the interests of maintaining fair and orderly markets. An SLMM that fails to give advanced written notice of termination to the Exchange may be subject to formal disciplinary action.
Under proposed NYSE Rule 107B(i), an SLP–Prop may not also act as an SLMM in the same securities in which it is registered as an SLP–Prop and vice versa. If a member organization has more than one business unit, and the SLP–Prop business unit is walled off from the SLMM business unit, the member organization may engage in both an SLP–Prop and SLMM business from those different business units. Provided there is no coordinated trading between the SLP–Prop and SLMM business units, they may be assigned the same securities.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that adding an additional registered market maker program to the Exchange will promote just and equitable principles of trade as it could potentially expand the number of market participants providing liquidity at the Exchange, to the benefit of investors. In particular, the proposal would allow additional market participants, including member organizations that are registered as market makers on other exchanges that engage in a customer-facing business, to participate in the SLP program.
The proposed SLMMs would provide supplemental liquidity in addition to the liquidity provided by DMMs and SLP–Props, and the Exchange would continue to require that a DMM be registered in every security listed on the Exchange. Because the proposed SLMMs would be required to meet the Two-Sided Obligation applicable to all equities market makers, the Commission believes that the proposed rule change would also remove impediments to and perfect the mechanism of a free and open market and a national market system by increasing the number of market participants that are required to maintain a continuous two-sided quotation a specified percentage away from the NBBO in the securities in which they are registered. Moreover, the proposed SLMM would be subject to other currently existing requirements.
The Commission finds that the proposal is not unfairly discriminatory. Registration as an SLP–Prop or SLMM is available to all Exchange member organizations that satisfy the requirements of proposed NYSE Rule 107B(c) or (d). The Commission finds further that the proposal to establish procedures for the registration, withdrawal, and disqualification of SLMM, and the SLMM quoting requirements, are consistent with the requirements of Section 6(b)(5) of the Act. The Exchange's proposed rules provide an objective process by which a member organization could become a SLMM and for appropriate oversight by the Exchange to monitor for continued compliance with the terms of these provisions. The Commission also notes that these provisions are similar to the existing provisions that apply to the current SLP program.
In addition, the Commission believes that the proposed rule change is consistent with the requirements of the Act because the proposed requirements for the SLMMs are based on existing, approved requirements for registered market makers on other exchanges. In addition to the Two-Sided Obligation, the proposed SLMMs would also be required to assist in the maintenance of a fair and orderly market, as reasonably practicable, and maintain net capital
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On October 5, 2011, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”)
The Original Proposal would have required that members and associated persons that offer or sell any applicable private placement (“Covered Offering”), or participate in the preparation of a private placement memorandum (“PPM”), term sheet, or other disclosure document in connection with any Covered Offering, disclose to each investor prior to sale the anticipated use of offering proceeds, and the amount and type of offering expenses and offering compensation. If any issuer's disclosure documents did not contain the requisite information, the Original Proposal would have required the member to create and provide to any potential investor a separate disclosure document containing this information.
The Original Proposal also would have required that each participating member file the PPM, term sheet, or other disclosure document, and any exhibits thereto, with FINRA no later than 15 calendar days after the date of the first sale. In addition, the Original Proposal would have required any material amendments to such disclosure document, or any amendments to any mandated disclosures described in the Original Proposal, to be filed with FINRA no later than 15 calendar days after the date such document was provided to any prospective investor.
As stated above, the Commission received sixteen comment letters on the Original Proposal. Some commenters expressed support for the goals of the Original Proposal.
The commenters' concerns generally fell into broad categories: Several commenters advocated for additional exemptions to the proposed rule (
In response to commenters, FINRA submitted its Response Letter and filed Amendment No. 1 to the Original Proposal.
Amendment No. 1 made the following changes to the Original Proposal:
First, FINRA amended the Original Proposal by clarifying that the term “private placement” would have the same meaning as it does in Rule 5122. That is, the term private placement would mean “a non-public offering of securities conducted in reliance on an available exemption from registration under the Securities Act.”
Second, FINRA amended the Original Proposal by eliminating a member's obligation to create a disclosure document. In particular, FINRA eliminated the proposed requirement to create and provide to any potential investor a separate disclosure document containing the anticipated use of offering proceeds, the amount and type of offering expenses, and the amount and type of compensation provided or to be provided to sponsors, finders, consultants, and members and their associated persons in connection with the offering, if a disclosure document containing this information, drafted by or on behalf of the issuer, did not already exist.
Third, FINRA amended the Original Proposal by revising a member's obligation to make a notice filing with FINRA with respect to a Covered Offering. In particular, a member would still be obligated to file with FINRA any disclosure document used in the Covered Offering containing the requisite information about proceeds, expenses, and compensation; however, if no such disclosure document existed, the member would not be required to generate a notice document containing the requisite information. Instead, the participating member would have to prepare a notice filing identifying the private placement, the participating members, and stating that no disclosure document was used, and file it with FINRA no later than 15 calendar days after the date of first sale.
Amendment No. 1 also affirmed that proposed Rule 5123 would not preclude sales of Covered Offerings in which no disclosure documents were used and would not require the member to make any additional disclosure to investors in such offerings. In addition, Amendment No. 1 clarified that each member participating in an offering (or a member's designee) would be required to file the disclosure document of notice filing with FINRA no later than 15 calendar days after the date of first sale.
Fourth, Amendment No. 1 amended the Original Proposal by clarifying certain proposed exemptions from and adding new proposed exemptions to the Original Proposal.
Fifth, Amendment No. 1 made two additional clarifications. Amendment No. 1 clarified that the term “affiliate” for purposes of Rule 5123 would have the same meaning as in FINRA Rule 5121. Specifically, the term “affiliate” would mean “an entity that controls, is controlled by or is under common control with a member.” Finally, Amendment No.1 clarified that a member would only be required to deliver a disclosure document to persons to whom it sells shares in the private placement.
In its Notice and Proceedings Order, the Commission asked that commenters address, among other things, the changes that FINRA proposed in Amendment No. 1, the comments received on the Notice of Filing, and FINRA's Response Letter. In addition, the Commission expressly requested comment on the following aspects of the proposed rule change: (1) The categories of offerings that would be subject to the proposed rule change under the proposed definition of “private placement;” (2) the potential impact on investors purchasing private placement securities through a broker-dealer subject to the proposed rule change; (3) the potential impact on members of having to comply with the proposed rule change; and (4) the potential impact of competition and capital formation, including: (a) Whether members would continue to participate in private placements subject to the proposed rule change; (b) whether the proposed rule change would encourage issuers to utilize unregistered firms to effect their covered offerings; and (c) whether the proposed rule change would affect access to capital, the costs of capital raising, or the cost of capital for issuers.
The Commission received eleven (11) comment letters in response to the Notice and Proceedings Order,
The S&C-February Letter commended FINRA for the amendment and stated its belief that members would be able to comply with the narrowly tailored disclosure requirements. The NYC Bar-February Letter stated that FINRA substantially responded to its comments and it therefore supported the rule. The Cornell-February Letter stated that it supported the proposed rule as amended and that the costs of compliance would be minimal. The Cornell-February Letter and the NYC Bar-February Letter stated that the proposed rule change would have a beneficial impact on investors and investor protection. Although the NASAA-April Letter stated that NASAA continued to support the rule, NASAA expressed opposition to the amendment, saying that the amendment weakened the protection of investors as compared to the Original Proposal.
The Rutledge Letter recommended that FINRA adopt a uniform template for its notice filing. Specifically, the Rutledge Letter recommended that the proposed rule change specify that a member would be required to file an issuer's Form D to satisfy its filing obligation.
The Martin Letter stated that proposed Rule 5123 should clarify how a member would comply if the member does not sign a selling agreement until more than 15 days have passed after the first sale. FINRA noted in its Rebuttal Letter that the proposed filing requirement referred to the first sale by the member making the filing (or on whose behalf a designated member is filing), rather than the first sale by another member.
The NIBA Letter and REISA—February Letter suggested that members be provided access to summary information collected by FINRA regarding private placements as a result of the proposed rule change. FINRA responded in its Response Letter and repeated in its Rebuttal Letter that, by the express terms of the proposed rule change, this information would be collected solely for regulatory purposes and FINRA intends to provide confidential treatment to all documents and information filed pursuant to it. In fact, the proposed rule would contain a provision addressing confidential treatment of any information filed with FINRA pursuant to the proposed rule. Specifically, pursuant to proposed paragraph 5123(c), FINRA would accord confidential treatment to all documents and information filed pursuant to the Rule, and would use such documents and information solely for the purpose of determining compliance with FINRA rules or other applicable regulatory purposes.
These two commenters also sought clarification about the liability of members for violations of the proposed rule.
Several commenters requested additional exemptions from coverage under Rule 5123. The S&C—February Letter, for example, requested an exemption for all accredited investors. FINRA stated that it does not believe that the exemption should extend to offers to accredited investors under Rule 501(a)(4), (5), or (6) of Regulation D. In particular, FINRA stated that it believes
The NIBA Letter and REISA-February Letter expressed concern about the exemption for institutional accounts as amended by Amendment No. 1. Specifically, Amendment No. 1 proposed exempting from coverage, offerings sold by a member or person associated with the member solely to institutional accounts as defined by new FINRA Rule 4512(c). Those commenters stated that the proposed exemption is confusing because the definition used in FINRA Rule 4512(c)(1)(A) uses a different set of monetary thresholds than those used for the definitions of Qualified Institutional Buyers (“QIBs”) in Section 144A of the Securities Act and Qualified Purchasers (“QPs”) in Section 2(a)(51)(A) of the Investment Company Act. FINRA noted in its Rebuttal Letter that proposed Rule 5123 would exempt offerings sold to all three of these categories of purchasers—institutional accounts as defined in FINRA Rule 4512(c), QIBs, and QPs. Because the categories provide cumulative relief to members, FINRA stated that it did not believe that offering more exemptions, including an additional, stand-alone exemption with different criteria would be confusing.
The St. Charles Letter requested that FINRA include an exemption for firms engaged solely in advisory services,
In addition, the proposed rule would contain a catchall provision that would give FINRA discretion to allow for additional exemptions. Specifically, pursuant to proposed paragraph 5123(d), FINRA would have authority to exempt a member or associated person from the provisions of the proposed Rule upon a showing of good cause.
The Rutledge Letter requested that FINRA reevaluate the proposed rule change in light of the enactment of the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”). In particular, the Rutledge Letter suggested that the proposed rule change is inconsistent with the intent of the JOBS Act to reduce regulation applicable to small business capital formation.
The Rutledge Letter also stated that the proposed rule is unnecessary and suggested FINRA instead enforce existing rules and increase sanctions for private placement fraud. FINRA stated that the proposed rule change, as amended, would enhance its regulatory oversight of broker-dealers that sell securities in the private placement market by providing FINRA with more timely and complete information about its members' private placement activities.
The Rutledge Letter suggested an alternative approach to improve investor protection in the private placement market. Specifically, the Rutledge Letter proposed that the SEC and FINRA adopt additional regulations governing finders and business brokers with respect to, among other things, licensing, qualifications, recordkeeping, and continuing education. FINRA stated that it will examine the need for additional rules governing finders and business brokers and work with the Commission, as appropriate. FINRA, however, stated that it views additional regulation of finders and business brokers as a complement to the proposed rule and the enhanced information it would make available to FINRA.
The MFA-February Letter opposed the amended rule stating that it believed the rule would be inconsistent with the federal securities laws. Although the letter acknowledged that FINRA's proposed rule would no longer require the creation and delivery of a disclosure document in connection with sales in which no offering document was used, it stated that the proposed rule's ongoing requirement to provide any existing disclosure document to a prospective investor would substitute FINRA's judgment for Congress's, which has enacted and repeatedly reaffirmed a statutory framework for private funds that leave matters of disclosure to issuers. FINRA responded to these concerns by filing Amendments No. 2 and No. 3, which eliminated any disclosure requirement and left only a filing requirement or a requirement to indicate to FINRA that no offering documents were used.
The Rutledge Letter also asserted that the proposed rule would disrupt the established federal securities regulatory scheme because it would expand FINRA's jurisdiction to cover issuers of private placements. Similarly, the Rutledge Letter claimed that the proposed rule change would subject private placements subject to the proposed rule change to an implicit approval process. The Rutledge Letter stated that inserting an additional layer of regulatory review would impede capital formation. FINRA responded that it believes the proposed rule change is consistent with its jurisdiction over members and persons associated with members. Moreover, FINRA represented in the Original Proposal and in the Supplementary Rebuttal Letter that the proposed notice filing requirement does not establish any review and approval process by FINRA for private placements.
The NIBA Letter stated that the additional burden that would be imposed on FINRA members by the proposed rule would cause issuers to rely on unregistered entities or themselves to conduct the types of offerings covered by the rule. Thus, NIBA argued that FINRA can only partially address the problems in this area unless the Commission also adopts rules applicable to issuers and unregulated persons, who provide essentially the same services as FINRA members.
In the Rebuttal Letter, FINRA stated that it generally supports broader oversight of private placements and stated that improvement in the protection of broker-dealer customers should not depend upon whether the Commission adopts rules for issuers and entities not subject to FINRA's oversight. Moreover, by amending the filing in Amendments No. 2 and No. 3 to require only either a notice filing of the offering documents that were used or a statement that no such documents
The Cornell-February Letter and NYC Bar-February Letter both stated that the proposed rule change would not impose unnecessary burdens on capital formation or have unequal competitive impact. Other commenters, however, raised concerns regarding burdens on capital formation and effect on competition. For example, the REISA–February Letter and the NIBA Letter stated that the proposed rule would unduly burden independent broker-dealers participating in offerings of $50 million or less. The NIBA Letter asserted that the amended proposed rule would adversely affect small firms, small issuers, and small businesses more directly than large and medium sized firms, because those larger firms do not participate in offerings of under $50 million in retail private placements for small or newer issuers. The Monument Group-February Letter opposed the amended rule stating that it believed it would impede capital formation by placing “anticompetitive” burdens on small private placement agents. The MFA–February Letter opposed the amended rule stating, among other things, that it believed the rule would be burdensome and costly, would impede capital formation, and would reduce efficiency.
In its Rebuttal Letter, FINRA stated that it has responded to these concerns by filing Amendment No. 2 which amended the proposed rule to minimize the potential burden: by (1) Eliminating any disclosure requirement; and (2) narrowly tailoring the remaining notice filing requirement (See Section III.B. below). FINRA asserted in its Response Letter and Rebuttal Letter that a requirement to make a notice filing after the offering has commenced and sales have occurred would not impose an unnecessary burden on members or capital formation and would be appropriate in light of the intended regulatory benefits for investors that would flow from enhanced oversight of, among other things, members' compliance obligations, such as their suitability obligations.
FINRA further stated that it believes the filing requirement of proposed Rule 5123 would provide FINRA with timely and detailed information about the private placement activities of its member firms that would enhance its oversight functions. Specifically, FINRA stated that it believes that information obtained through compliance with the proposed rule would assist its efforts to identify problematic terms and conditions in private placements, thereby helping to detect and prevent fraud in connection with private placements.
In sum, FINRA stated that it does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. And FINRA stated that it believes that the “relatively modest burden” of the proposed rule change is both necessary and appropriate in helping to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest.
In response to comments, FINRA filed two subsequent Amendments to the proposed rule, discussed below.
In Amendment No. 2, FINRA eliminated the requirement in proposed Rule 5123 that firms provide specified disclosures to investors. As a result, proposed Rule 5123(a) would contain only a filing requirement. Specifically, paragraph (a) would require each member that sells a security in a Covered Offering to: (i) Submit to FINRA, or have submitted on its behalf by a designated member, a copy of any PPM, term sheet, or other offering document used in connection with such sale within 15 calendar days of the date of first sale, as well as any material amendments to a previously-filed document within 15 calendar days of the date such document is provided to any investor; or (ii) indicate to FINRA that no such offering documents were used.
In Amendment No. 2, FINRA, responding to comments on the exemption for employees and affiliates, also proposed adding a cross-reference to the definition of “affiliate” in proposed Rule 5121(b)(1)(G). And FINRA proposed deleting the supplementary material that was proposed in Amendment No. 1.
In Amendment No. 3, FINRA proposed a further clarifying technical amendment to paragraph (a) of proposed Rule 5123. Specifically, FINRA proposed to clarify that a FINRA member must file with FINRA not only the original offering documents but also any “materially amended versions” of offering documents used in connection with a sale within 15 calendar days of the date of first sale.
As noted above, FINRA stated its belief that these changes to the proposed rule would address concerns raised by the industry in the comment process, would provide important investor protections in connection with private placements of securities, and are in the public interest.
After carefully reviewing the proposed rule change, as amended, the comments received, and FINRA's response to comments, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association. In particular, the
As discussed above, the Commission believes that FINRA has addressed capital formation, competition, and efficiency concerns. In Amendments No. 2 and No. 3, FINRA minimized any potential inefficiency to, or burden on, members by: (1) Eliminating any disclosure requirements; and (2) narrowly tailoring the rule to require either a notice filing of the offering documents that were used within 15 calendar days of the date of first sale or provide a statement that no such documents were used. Furthermore, in response to comments, FINRA created additional exemptions to coverage under Rule 5123. In addition, FINRA noted in its Rebuttal Letter and its Supplementary Rebuttal Letter that it believes that a requirement to make a notice filing after the offering has commenced and sales have occurred would not impose any unnecessary burdens on capital formation. FINRA stated that it would use the information it receives pursuant to the proposed new rule, to further its detection and prevention of fraudulent and manipulative acts and practices, and to promote just and equitable principles of trade, all in the interest of enhancing the protection of investors. The Commission believes that FINRA narrowly tailored a broker-dealer's obligations under Rule 5123, while enhancing its ability to carry out its statutory obligations to oversee member firms. The Commission points to the discussion above which highlights the many revisions FINRA made to the proposal to address comments and concerns raised through three separate opportunities for comment.
The Commission finds goods cause, pursuant to Section 19(b)(2) of the Exchange Act,
Accordingly, the Commission finds that good cause exists to approve the proposal, as modified by Amendments No. 1, No. 2, and No. 3, on an accelerated basis.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rules change as amended by Amendments No. 2 and No. 3 is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of proposed rule change is to amend Schedule 502 of the ICC Rules in order to reflect the correct credit default swap (“CDS”) reference entity name for three single name CDS contracts (Exelon Corporation, Beam Inc., and XLIT Ltd.) and the Contract Reference Obligation International Securities Identification Number (“Contract Reference Obligation ISIN”) for one single name CDS contract (Exelon Corporation) that ICC currently clears. Amended Schedule 502 would also reflect the industry standard Contract Reference Obligation ISIN of one CDS contract and reference entity names of three CDS contracts.
In its filing with the Commission, ICC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of the rule change is to correct Schedule 502 of the ICC Rules, which lists all the Contract Reference Obligation ISINs and entity names of all single name CDS contracts that ICC clears. This amendment would revise Schedule 502 to update the Contract Reference Obligation ISIN of one CDS contract and the reference entity names of three CDS contracts that ICC currently clears. The update does not require any changes to the body of the ICC Rules. In addition, the update does not require any changes to the ICC risk management framework.
Schedule 502 of the ICC Rules is being updated to reflect changes that are already in place operationally. Namely, on May 7, 2012, Exelon Corporation became clearing eligible at ICC with a new Contract Reference Obligation ISIN and new reference entity name. On May 8, 2012, ICC converted all Constellation Energy Group, Inc. trades and positions to those of Exelon Corporation. On January 16, 2012, Beam, Inc. became clearing eligible at ICC and on February 1, 2012, ICC converted all Fortune Brands, Inc. positions to Beam, Inc. positions. On April 2, 2012, XLIT Ltd. became clearing eligible at ICC and on April 17, 2012, ICC converted all XL Ltd. trades and positions to XLIT Ltd. positions. The corresponding updates to Schedule 502 accurately represent the current operations of ICC and correctly reflect ICC's cleared activity with respect to the CDS contracts at issue.
Currently, Schedule 502 does not reflect the industry's changes to the standard Contract Reference Obligation ISIN for Exelon Corporation or the entity names for Exelon Corporation, Beam Inc., and XLIT Ltd. Despite the reference entity names and Contract Reference Obligation ISIN in current Schedule 502, ICC has been clearing CDS contracts using the new industry standard Contract Reference Obligation ISIN and reference entity names as of the above dates. Current Schedule 502 does not accurately represent the operations of ICC. The underlying contracts have not changed and, notwithstanding the standard Contract Reference Obligation ISIN change and name changes of the reference entity, ICC continues to clear the same contract today that it cleared prior to the standard Contract Reference Obligation ISIN change and reference entity name changes.
Section 17A(b)(3)(F)
ICC does not believe the proposed rule change would have any impact, or impose any burden, on competition.
Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(iii)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–ICC–2012–09 and should be submitted on or before July 5,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration.
Notice of the Extension of Tests Involving Modifications to the Disability Determination Procedures.
We are announcing the extension of tests involving modifications to disability determination procedures authorized by 20 CFR 404.906 and 416.1406. These rules authorize us to test several modifications to the disability determination procedures for adjudicating claims for disability insurance benefits under title II of the Social Security Act (Act) and for supplemental security income payments based on disability under title XVI of the Act.
We are extending our selection of cases to be included in these tests from September 28, 2012 until no later than September 27, 2013. If we decide to continue selection of cases for these tests beyond this date, we will publish another notice in the
David Vincent, Office of Disability Programs, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235–6401, (410) 597–0549, for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1–800–772–1213 or TTY 1–800–325–0778, or visit our Internet site, Social Security Online, at
Our current rules authorize us to test, individually or in any combination, certain modifications to the disability determination procedures. 20 CFR 404.906 and 416.1406. We have conducted several tests under the authority of these rules. In the “single decisionmaker” test, a disability examiner may make the initial disability determination in most cases without obtaining the signature of a medical or psychological consultant. We also have conducted a separate test, which we call the “prototype,” in 10 States. 64 FR 47218. Currently, the prototype combines the single decisionmaker approach described above with the elimination of the reconsideration level of our administrative review process.
We have extended the time period for selecting claims for these tests several times. Most recently, on September 24, 2009, we extended the time period until September 28, 2012. 74 FR 48797. We have decided to extend case selection for the prototype and the single decisionmaker tests until September 27, 2013. If we decide to end any part of these tests in any of the 10 States in which we are conducting the tests prior to September 27, 2013, we will publish another notice in the
Susquehanna River Basin Commission.
Notice.
At its regular meeting in Binghamton, New York on June 7, 2012, the Susquehanna River Basin Commission (SRBC) extended the comment deadline for its proposed Low Flow Protection Policy to July 16, 2012. The original comment deadline had been May 16, 2012. On March 15, 2012, SRBC's commissioners approved the release of the proposed Low Flow Protection Policy for public review and comment. The proposed policy was developed over the past year—based on scientific advances in ecosystem flow protection—to improve low flow protection standards associated with approved water withdrawals. SRBC will use the final policy and supporting technical guidance when reviewing withdrawal applications to establish limits and conditions on approvals consistent with SRBC's regulatory standards (18 CFR § 806.23).
The new deadline for the submission of comments is July 16, 2012.
Comments may be mailed to: Mr. John Balay, Susquehanna River Basin Commission, 1721 N. Front Street, Harrisburg, PA 17102–2391, or electronically submitted through
John W. Balay, Manager, Planning and Operations, telephone: (717) 238–0423, ext. 217; fax: (717) 238–2436. Also, the proposed policy and background information on the policy are available at the Commission's Web site
Pub. L. 91–575, 84 Stat. 1509 et seq., 18 CFR Parts 806–808.
Office of the Secretary (OST), Department of Transportation (DOT).
Notice of first meeting of advisory committee.
This notice announces the first meeting of the Advisory Committee for Aviation Consumer Protection.
The first meeting of the advisory committee is scheduled for June 28, 2012, from 9:00 a.m. to 5:00 p.m., Eastern Time.
The meeting will be held in the Oklahoma City Room (located on the lobby level of the West Building) at the U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC. Attendance is open to the public; however, since access to the U.S. DOT headquarters building is controlled for security purposes, any member of the general public who plans to attend this meeting must notify the Department contact noted below at least five (5) calendar days prior to the meeting.
To register to attend the meeting, please contact Lynora Simmons Kendale,
Section 411 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112–95, 126 Stat. 11 (2012)) mandates the establishment of an advisory committee for the purpose of advising the Secretary of Transportation on airline customer service improvements. More specifically, the Act requires the advisory committee to evaluate and provide recommendations to the Secretary for improving existing aviation consumer protection programs and for establishing additional such programs if appropriate. The Act also limits the committee's membership to four members appointed by the Secretary of Transportation—one representative each of airlines, airports, non-profit public interest groups, and state and local governments. Section 411 specifies that the advisory committee shall terminate on September 30, 2015.
On May 24, 2012, the Secretary established the advisory committee and announced those persons appointed as members of the committee. The selected members are as follows: (1) Lisa Madigan who is the attorney general of Illinois, who will also be the committee chairperson; (2) David Berg who is the senior vice president, general counsel and corporate secretary for Airlines for America; (3) Deborah Ale-Flint who is Oakland International Airport's director of aviation; and (4) Charles Leocha who is the founder of the Consumer Travel Alliance. All of the committee members have demonstrated experience in dealing with consumer protection issues.
A charter for the committee, drafted in accordance with the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. 2, sets forth policies for the operation of the advisory committee. It designates the Department's Assistant General Counsel for Aviation Enforcement and Proceedings as the Committee's Designated Federal Official (DFO) to help run the meetings of the committee. This charter is available on the Department's Web site at
As noted above, the first meeting of the committee will take place on June 28, 2012. The agenda topics for the first meeting will include, in a morning session, presentations by staff in the Office of the Aviation Enforcement and Proceedings and its Aviation Consumer Protection Division regarding organization of the offices, existing aviation consumer protection and civil rights statutory and regulatory requirements, and on-going and planned enforcement and rulemaking activities. In an afternoon session, we expect to provide an opportunity for presentations by representatives from organizations representing airlines, travel agents, airport operators, state and local governments, and consumer and other public interest groups. Those organizations wishing to make presentations, which should be limited to no more than 10 minutes, should notify the contact person indicated above no later than five (5) calendar days before the meeting and provide that person a written summary of their presentations to help the committee members prepare for the meeting. Efforts will be made to accommodate each organization that wishes to make a presentation. However, given time constraints, there is no guarantee that all the organizations that make such a request will be able to address the advisory committee at the June 28th meeting. In order to provide for a balanced presentation of views and to facilitate the orderly conduct of the meeting, including time for questions from committee members, the committee chairperson may impose rules or procedures, including the order of organizations that will be making presentations, as she deems necessary. If more organizations would like to make presentations than the time available permits, a schedule will be developed so that these organizations can present at the next advisory committee meeting.
The committee will meet no more than four times in each 12-month period starting after May 24, 2012. It is anticipated that all meetings will be held in Washington, DC at the U.S. DOT headquarters building. The Department will publish notices in the
Members of the public may present written comments at any time. The docket number referenced above has been established for committee documents including any written comments that may be filed. At the discretion of the Chairperson and time permitting, after completion of the organizational presentations in the afternoon of the first meeting, individual members of the public may provide oral comments at the meeting. Any oral comments presented must be limited to objectives of the committee and will be limited to five (5) minutes per person. Individual members of the public who wish to present oral comments must notify the Department contact noted above via email that they wish to attend and present oral comments at least five (5) calendar days prior to the meeting. For this initial meeting, no more than one hour will be set aside for oral comments by the general public.
Persons with a disability who plan to attend the meeting and require special accommodations, such as an interpreter for the hearing impaired, should contact
Notice of this meeting is being provided in accordance with the FACA and the General Services Administration regulations covering management of Federal advisory committees. (41 CFR Part 102–3.)
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of Funding Availability, Solicitation of Applications.
This notice details the application requirements and procedures for obtaining grant funding for pilot projects designed to eliminate or reduce railroad accidents caused by Electronic Device Distraction (EDD), by improving safety culture and making misuse socially unacceptable. Components of these pilot projects will include peer-to-peer safety training techniques, and other innovative processes. These pilot projects will be used to supplement and enhance compliance with Title 49 Code of Federal Regulations (CFR) Part 220, Subpart C, Electronic Devices. The purpose of this subpart is to reduce safety risks resulting from railroad operating employees being distracted by the inappropriate use of electronic devices, such as mobile telephones and laptop computers. This subpart was codified in response to an increase in the number of accidents caused by misuse of personal electronic devices. The opportunities described in this notice are available under the Catalog of Federal Domestic Assistance (CFDA) Number 20.301
Applications for funding under this solicitation are due no later than 5 p.m., 30 days after publication in the
Michael Fitzpatrick, Risk Reduction Railroad Specialist, Risk Reduction Program Division, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590; (202) 493–6021; or
The purpose of this notice is to detail the process of applying for grant funding for risk reduction pilot projects designed to eliminate or reduce railroad accidents caused by electronic devices by making misuse of electronic devices socially unacceptable and improving safety culture using peer-to-peer coaching techniques. Congress, in Section 103 of the Rail Safety Improvement Act of 2008 (Pub. L. 110–432, October 16, 2008) required the Secretary of Transportation, by regulation, to require each railroad carrier that is either a Class I railroad, a railroad carrier that has inadequate safety performance, or a railroad carrier that provides intercity rail passenger or commuter rail passenger transportation to develop a railroad safety risk reduction program that systematically evaluates railroad safety risks on its system and manages those risks in order to reduce the numbers and rates of railroad accidents, incidents, injuries, and fatalities. The statute also authorized the Secretary to conduct behavior-based safety and other research, including pilot programs, and to use any such research and pilot programs in developing the regulations.
At least $200,000 is available for awards under this solicitation.
FRA anticipates making multiple awards from the $200,000 available. As such, FRA expects applicants to tailor their applications and proposed project scopes accordingly. There are no minimum or maximum dollar thresholds for awards, and FRA may choose to award a grant for less than the amount requested in the application. The funding provided under these grants will be made available to grantees on a reimbursement basis.
Eligible applicants include: Individual railroad(s), railroad association(s), rail labor organization(s), or a combination of a railroad and its attendant labor organization(s) developing a cooperative program (multiple stakeholders).
Applicants should specify the non-Federal match amount, if any, in their application. Applicants should indicate whether funding made available through grants provided under this program, together with committed funding from other sources, will be sufficient to complete the overall project or a discrete portion of the project. An applicant's contribution toward the cost of its proposed project may be in the form of cash or permitted in-kind contributions. As part of its application, an applicant offering an in-kind contribution must provide a documented estimate of the monetary value of any such contribution. All in-kind contributions must be allowable, reasonable, allocable, and in accordance with applicable Office of Management and Budget (OMB) cost principles (see Appendix 1), and must not represent double counting of costs otherwise accounted for in an indirect cost rate pursuant to which the applicant will seek reimbursement.
FRA is seeking innovative pilot projects that eliminate or reduce accidents where the primary or contributing cause is distraction associated with the misuse of personal electronic devices. The selected pilot projects will use innovative processes such as peer-to-peer coaching to make misuse of personal electronic devices socially unacceptable, thereby improving the safety culture and eliminating or reducing accidents caused by distractions.
Submitted applications should address the following criteria and considerations:
• Program Logic and Resource Allocation: The projects must clearly show a link between the resources being allocated, the processes and tasks being developed and executed, and the desired outcome.
• Partnership with stakeholders: Shared responsibility and program ownership are critical to a successful project, and understandings and commitments between stakeholders should be clearly defined.
• Feasibility: Projects must show feasibility and a strong likelihood of success.
• Results: Program goals (process goals such as number of people educated/trained, and end goals) must be clearly stated.
• Impact: The projected impact on safety must be stated: Local, division or region, systemwide, and industrywide (e.g. the pilot could be targeted at a single yard or terminal, single group at the location such as train, yard, and engine, single shift such as 11:00 p.m. to 7:00 a.m.).
• Schedule: Estimate time and location to begin implementation, estimate time when demonstrable improvements will be measureable.
All applications must be submitted through Grants.gov by 5 p.m., 30 days after this notice is published in the
A Data Universal Numbering System (DUNS) number is required for Grants.gov registration. The Office of Management and Budget requires that all businesses and nonprofit applicants for Federal funds include a DUNS number in their applications for a new award or renewal of an existing award. A DUNS number is a unique nine-digit sequence recognized as the universal standard for identifying and keeping track of entities receiving Federal funds. The identifier is used for tracking purposes and to validate address and point of contact information for Federal assistance applicants, recipients, and subrecipients. The DUNS number will be used throughout the grant life cycle. Obtaining a DUNS number is a free, one-time activity. Applicants may obtain a DUNS number by calling (866) 705–5711 or by applying online at
All applicants for Federal financial assistance must maintain current registrations in the Central Contractor Registration (CCR) database. An applicant must be registered in the CCR to successfully register in Grants.gov. The CCR database is the repository for standard information about Federal financial assistance applicants, recipients, and subrecipients. Organizations that have previously submitted applications via Grants.gov are already registered with CCR, as it is a requirement for Grants.gov registration. Please note, however, that applicants must update or renew their CCR registration at least once per year to maintain an active status, so it is critical to check registration status well in advance of the application deadline. Information about CCR registration procedures can be accessed at
Applicants must complete an Authorized Organization Representative (AOR) profile on Grants.gov and create a username and password. Applicants must use the organization's DUNS number to complete this step. Additional information about the registration process is available at
The Applicant's E-Business Point of Contact (EBiz POC) must log in to Grants.gov to confirm a representative as an AOR. Please note that there can be more than one AOR at an organization.
The CFDA number for this opportunity is 20.301. It is titled: Electronic Device Distraction Safety Culture Improvement Pilot Project Grant.
Within 24 to 48 hours after submitting an electronic application, an applicant should receive an email validation message from Grants.gov. The validation message will explain whether the application has been received and validated or rejected, with an explanation. Applicants are urged to submit an application at least 72 hours prior to the due date of the application to allow time to receive the validation message and to correct any problems that may have caused a rejection notification. If you experience difficulties at any point during this process, please call the Grants.gov Customer Center Hotline at (800) 518–4726, 24 hours a day, and 7 days a week (closed on Federal holidays).
Please use generally accepted formats such as .pdf, .doc, .docx, .xls, .xlsx, and .ppt, when uploading attachments.
To request a hard copy of the application package, please contact: Michael Fitzpatrick, Risk Reduction Railroad Specialist, Risk Reduction Program Division, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590; (202) 493–6021; or
Required documents for the application package are outlined below. Applicants must complete and submit all components of the application package; failure to do so may result in the application being removed from consideration for award.
The following points describe the minimum content that will be required in the Project Narrative/Statement of
• Designate a point of contact for the applicant and provide his or her name and contact information, including phone number, mailing address, and email address. The point of contact must be an employee of an eligible applicant. Indicate the amount of Federal funding requested from the program, proposed non-Federal match, and total project cost.
• Explain how the applicant is an eligible applicant. For a full discussion of how an applicant can meet this burden, see Section 3.1 Eligible Applicants.
• Include a detailed project description with an explanation of how the project is an eligible project. For a full discussion of how an applicant can meet this burden, see Section 3.3 Eligible Projects.
• Include a thorough discussion of how the project meets all of the selection criteria. Applicants should note that FRA evaluates applications based upon the selection criteria. If an application does not sufficiently address the selection criteria, FRA will have little or no basis on which to evaluate the application; therefore, it will likely not be a competitive application. The selection criteria are described in detail in Section 5.2.
• Provide a detailed scope of work for the proposed project and include the anticipated project schedule. Describe the proposed project's physical location (as applicable). If the funding from the program is only going to be a component of the overall funding for the project, describe the complete project and specify which component will involve FRA funding. Applications should include feasibility studies and cost estimates, if completed. FRA will more favorably consider applications that include these types of studies and estimates, as they demonstrate that an applicant has a definite understanding of the scope and cost of the project. If FRA approves a project for funding, allowable costs (i.e., costs that can qualify for reimbursement from Federal funds or as part of the required non- Federal match) will have to directly support the pilot project.
• Describe proposed project implementation and project management arrangements. Include descriptions of expected arrangements for project contracting, contract oversight, change-order management, risk management, and conformance to Federal requirements for project progress reporting.
• Describe the anticipated benefits associated with the proposed project.
• Although FRA will weigh all of the selection criteria, potential applicants should be aware that FRA is seeking the maximum safety benefit from these limited funds.
• Format: Excluding spreadsheets, drawings, and tables, the Project Narrative/Statement of Work for grant applications may not exceed 10 pages in length. Failure to adhere to this page limitation may result in the application being removed from consideration for award.
• All application materials should be submitted as attachments through Grants.gov.
• Spreadsheets consisting of budget or financial information should be submitted via Grants.gov as Microsoft Excel (or compatible) documents.
Applicants must present a detailed budget for the proposed project that includes both Federal funds and matching funds. Items of cost included in the budget must be reasonable, allocable, and necessary for the project. For a non-construction project at a minimum, the budget should separate total cost of the project into the following categories, if applicable: (1) Personnel; (2) fringe benefits; (3) travel; (4) equipment; (5) supplies; (6) consultants/contracts; (7) other; and (8) indirect costs. See Appendix 3 of this solicitation for more information on project budgets.
Complete applications must be submitted to Grants.gov (as specified in Section 4.1) no later than 5 p.m., 30 days after this notice is published in the
Applications will proceed through a three-part review process:
1. Screening for completeness and eligibility.
2. Evaluation of eligible applications by technical panels applying the selection criteria.
3. Project selection by the FRA Administrator.
Each application will first be screened for completeness (containing all required documentation outlined in Section 4.2, and eligibility (requirements outlined in Section 3). Eligible and complete applications will then be evaluated by technical panels consisting of subject-matter experts against the selection criteria (outlined in Section 5.2). The ratings assigned by the technical panels will not constitute the final award determination. The FRA Administrator may take into account other factors determined to be relevant to achieving the goals of the program when making final award decisions.
FRA will consider the following selection factors in evaluating applications for grants under this program (all elements will have equal weight):
• Program Logic: The link between the resources being allocated, the processes and tasks being developed and executed and the desired outcome.
• Partnership with stakeholders: Shared responsibility and program ownership are critical to a successful project, clarity of understandings and commitments between stakeholders are important.
• Feasibility: Feasibility and a strong likelihood of success.
• Results: Achievement of program goals.
• Schedule: Programs with scheduled results showing sooner projected completion will be given greater consideration than programs with a longer timeline of completion.
• Cost sharing: Projects with a greater portion of matching funds will be given greater consideration, i.e. a program that proposes to match one company dollar for every grant dollar (1 to 1) would be given more consideration than a program that matches fifty cents for every grant dollar (.50 to 1).
Applications selected for funding will be announced after the application review period. FRA will contact applicants with successful applications after announcement with information and instructions about the award process. Notification of a selected application is not an authorization to begin proposed project activities. The period of performance for this grant program is dependent on the project. However, any unobligated funds will be de-obligated at the end of the 90-day close-out period, provided for in Appendix 2.4. Extensions to the period of performance will be considered only through written requests to FRA with specific and compelling justifications why an extension is required.
The grantee and any subgrantee shall comply with all applicable laws and regulations. For a non-exclusive list of regulations commonly applicable to FRA grants refer to Appendix 1.
Grant recipients must comply with reporting requirements. All post-award information pertaining to reporting, auditing, monitoring, and the close-out process is detailed in Appendix 2.
Payment of FRA funding through FRA's Office of Financial Services shall be made on a reimbursable basis whereby the grantee will be reimbursed, after the submission of proper invoices, for actual expenses incurred.
The grantee will use the following method for transfer of reimbursed funds: Automated Clearing House (ACH) Electronic Vendor Payment. The grantee submits SF 3881 and SF 270.
For further information regarding this notice and the grants program, please refer to the section titled “For Further Information Contact.”
Grant recipients must follow all standard financial and program administration requirements, including:
• 49 CFR part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.
• 49 CFR part 19, Uniform Administrative Requirements for Grants and Cooperative
• Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profits
• Organizations (OMB Circular A–110)
• Cost Principles
• 2 CFR part 225, Cost Principles for State, Local, and Indian Tribal Governments (OMB Circular A–87)
• 2 CFR part 220, Cost Principles for Educational Institutions (OMB Circular A–21)
• 2 CFR part 230, Cost Principles for Non-Profit Organizations (OMB A–122)
• Federal Acquisition Regulations (FAR), part 31.2 Contract Cost Principles and Procedures, Contracts with Commercial Organizations
• Audit Requirements
• OMB Circular A–133, Audits of States, Local Governments, and Non-Profit Organizations
Grant recipients must follow all administrative and national policy requirements including: Procurement standards, compliance with Federal civil rights laws and regulations, disadvantaged business enterprises (DBE), debarment and suspension, drug-free workplace, FRA's and OMB's Assurances and Certifications, Americans with Disabilities Act (ADA), environmental protection, National Environmental Policy Act (NEPA), and environmental justice.
As a Federal agency, FRA is subject to the Freedom of Information Act (FOIA) (5 U.S.C. 552), which generally provides that any person has a right, enforceable in court, to obtain access to Federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. Grant applications and related materials submitted by applicants pursuant to this guidance will become agency records, and are subject to FOIA and to public release through individual FOIA requests. FRA also recognizes that certain information submitted in support of an application for funding in accordance with this guidance could be exempt from public release under FOIA as a result of the application of one of the FOIA exemptions, most particularly Exemption 4, which protects trade secrets and commercial or financial information obtained from a person that is privileged or confidential (5 U.S.C. 552(b)(4)). In the context of this grant program, commercial or financial information obtained from a person could be confidential if disclosure is likely to cause substantial harm to the competitive position of the person from whom the information was obtained (see
Reporting requirements must be met throughout the life of the grant (additional detail will be included in the award package provided to selected applicants).
• Progress Reports—Progress reports are to be submitted quarterly. These reports must relate the state of completion of items in the Statement of Work to expenditures of the relevant budget elements. The grant recipient must furnish the quarterly progress report to FRA on or before the 30th calendar day of the month following the end of the quarter being reported. Grantees must submit reports for the periods: January 1–March 31, April 1–June 30, July 1–September 30, and October 1–December 31. Each quarterly report must set forth concise statements concerning activities relevant to the project, and should include, but not be limited to, the following:
○ An account of significant progress (findings, events, trends, etc.) made during the reporting period.
○ A description of any technical and/or cost problem(s) encountered or anticipated that will affect completion of the grant within the time and fiscal constraints as set forth in the agreement, together with recommended solutions or corrective action plans (with dates) to
○ An outline of work and activities planned for the next reporting period.
• Quarterly Federal Financial Report (SF–425)—The grantee must submit a quarterly Federal financial report electronically in FRA's Web-based grant management system, GrantSolutions, on or before the 30th calendar day of the month following the end of the quarter being reported (e.g., for the quarter ending March 31, the SF–425 is due no later than April 30). A report must be submitted for every quarter of the period of performance, including partial calendar quarters, as well as for periods where no grant activity occurs. The grantee must use SF–425, Federal Financial Report, in accordance with the instructions accompanying the form, to report all transactions, including Federal cash, Federal expenditures and unobligated balance, recipient share, and program income.
• Final Report(s)—Within 90 days of the project completion date or termination by FRA, the grantee must submit a summary project report in GrantSolutions. This report should detail the results and benefits of the grantee's improvement efforts.
• Reports, Presentations, and Other Deliverables—Whether for technical examination, administrative review, or publication, all submittals shall be of a professional quality and suitable for their intended purpose. Due dates for submittals shall be based on the specified intervals or days from the effective date of the agreement.
Grant recipients that expend $500,000 or more of Federal funds during their fiscal year, combined from all sources, are required to submit an organization-wide financial and compliance audit report. The audit must be performed in accordance with the U.S. General Accountability Office, Government Auditing Standards, located at
Grant recipients will be monitored periodically by FRA to ensure that the project goals, objectives, performance requirements, timelines, milestones, budgets, and other related program criteria are being met. FRA may conduct monitoring activities through a combination of office-based reviews and onsite monitoring visits. Monitoring will involve the review and analysis of the financial, programmatic, and administrative issues relative to each program and will identify areas where technical assistance and other support may be needed. The recipient is responsible for monitoring award activities, including subawards and subgrantees, in order to provide reasonable assurance that the award is being administered in compliance with Federal requirements. Financial monitoring responsibilities include the accounting of recipients and expenditures, cash management, maintaining of adequate financial records, and refunding expenditures disallowed by audits.
Project closeout occurs when all required project work and all administrative procedures have been completed, and when FRA notifies the grant recipient and forwards the final Federal assistance payment, or when FRA acknowledges the grant recipient's remittance of the proper refund. Project closeout should not invalidate any continuing obligations imposed on the grantee by an award or by the FRA's final notification or acknowledgment. Within 90 days of the project completion date or termination by FRA, grantees agree to submit a final Federal Financial Report (SF–425), a certification or summary of project expenses, and a final report.
The information contained in this appendix is intended to assist applicants with developing the SOW budget and OMB Standard Forms 424A: Budget Information— Non-Construction Programs and 424C: Budget Information—Construction Programs, as described in Section 4.2.
Applicants must present a detailed budget for the proposed project that includes both Federal funds and matching funds. Items of cost included in the budget must be reasonable, allocable, and necessary for the project. At a minimum, the budget should separate total cost of the project into the following categories and provide a basis of computation for each cost:
• Personnel: List each position by title and name of employee, if available, and show the annual salary rate and the percentage of time to be devoted to the project. Compensation paid for employees engaged in grant activities must be consistent with that paid for similar work within the applicant organization.
• Fringe Benefits: Fringe benefits should be based on actual known costs or an established formula. Fringe benefits are for personnel listed in the “Personnel” budget category and only for the percentage of time devoted to the project.
• Travel: Itemize travel expenses of project personnel by purpose (training, interviews, and meetings). Show the basis of computation (
• Equipment: List non-expendable items that are to be purchased. Nonexpendable equipment is tangible property having a useful life of more than 2 years and an acquisition cost of $5,000 or more per unit. (Note: the organization's own capitalization policy may be used for items costing less than $5,000.) Expendable items should be included either in the “Supplies” category or in the “Other” category. Applicants should analyze the cost benefits of purchasing versus leasing equipment, especially high-cost items and those subject to rapid technical advances. Rented or leased equipment should be listed in the “Contractual” category. Explain how the equipment is necessary for the success of the project. Attach a narrative describing the procurement method to be used.
• Supplies: List items by type (office supplies, postage, training materials, copying paper, and expendable equipment items costing less than $5,000) and show the basis for computation. (Note: The organization's own capitalization policy may be used for items costing less than $5,000). Generally, supplies include any materials that are expendable or
• Consultants/Contracts: Indicate whether applicant's written procurement policy (see 49 CFR Section 18.36) or the FAR are followed.
• Consultant Fees: For each consultant enter the name, if known, service to be provided, hourly or daily fee (8-hour day), and the estimated time on the project.
• Consultant Expenses: List all expenses to be paid from the grant to the individual consultants in addition to their fees (travel, meals, and lodging).
• Contracts: Provide a description of the product or service to be procured by contract and an estimate of the cost. Applicants are encouraged to promote free and open competition in awarding contracts. A separate justification must be provided for sole source contracts in excess of $100,000.
• Other: List items (rent, reproduction, telephone, janitorial, or security services) by major type and the basis of the computation. For example, provide the square footage and the cost per square foot for rent, or provide the monthly rental cost and how many months to rent.
• Indirect Costs: Indirect costs are allowed only if the applicant has a federally approved indirect cost rate. A copy of the rate approval (a fully executed, negotiated agreement) must be attached. If the applicant does not have an approved rate, one can be requested by contacting the applicant's cognizant Federal agency, which will review all documentation and approve a rate for the applicant organization.
Federal Railroad Administration (FRA), United States Department of Transportation (DOT).
Notice of intent to amend FRA's Procedures for Considering Environmental Impacts by adding categorical exclusions.
FRA is publishing this notice to request comments on FRA's proposed additions to the list of categorical exclusions (CEs) contained in FRA's Procedures for Considering Environmental Impacts (Environmental Procedures). CEs are actions that FRA has determined do not individually or cumulatively have significant effects on the human or natural environment and thus, do not require the preparation of an environmental assessment (EA) or environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). FRA's Environmental Procedures currently contain twenty CEs, and FRA is proposing to add seven additional CEs.
FRA is also making a Categorical Exclusion Substantiation Document (Substantiation Document) available for public review. That document supports the proposed CEs and demonstrates that the actions covered by the proposed CEs are unlikely to have significant impacts on the human or natural environment. The Substantiation Document is available on FRA's Web site at
FRA invites the public to comment on the proposed CEs that will be added to FRA's Environmental Procedures. Comments on this notice are due on or before July 13, 2012. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.
Please submit your comments by one of the following means, identifying your submissions by docket number FRA–2012–0016. All electronic submissions must be made to the U.S. Government electronic site at
(1)
(2)
(3)
(4)
For questions about this notice, please contact Christopher Van Nostrand, Attorney Advisor, Office of the Chief Counsel, Federal Railroad Administration, 1200 New Jersey Ave. SE., W31–208, Washington, DC 20590, telephone: (202) 493–6058.
FRA's Environmental Procedures were published in the
FRA has determined that additions to the existing list of CEs are necessary to facilitate FRA's administration of laws relating to railroad safety, development, rehabilitation, and railroad financial assistance programs, particularly the High-Speed Intercity Passenger Rail (HSIPR) grant program and the Railroad Rehabilitation and Improvement Financing (RRIF) loan/loan guarantee program. After careful consideration, FRA has determined that the actions included in the proposed seven new CEs are not of the type or character as to cause significant effects on the human or natural environment.
Recent statutory initiatives have greatly expanded FRA's ability to provide financial assistance to intercity passenger railroad projects and contributed to the need for these proposed CEs. The Passenger Rail Investment and Improvement Act (PRIIA) of 2008 (Division B of Pub. L. 110–432, 122 Stat. 4907, October 16, 2008) created three new passenger rail capital assistance programs, the intercity passenger rail corridor capital assistance program, high-speed rail corridor development, and a congestion relief program. Additionally, in an effort to stimulate the economy, create jobs and jumpstart a new era of high-speed rail in this country, Congress provided $8 billion in grant funding for projects that support high-speed intercity passenger rail programs in the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111–5, 123 Stat. 115). Congress also appropriated additional funds for high-speed and intercity rail projects in the Transportation, Housing and Urban Development and Related Agencies Appropriations Act for 2010 (Div A of the Consolidated Appropriations Act, 2010) (Pub. L. 111–117).
PRIIA, the Recovery Act, and other appropriations greatly expanded FRA's capacity to fund rail projects in order to achieve a world class high-speed and passenger rail program in the United States. The purpose of the HSIPR Program is to address the nation's transportation challenges by investing in efficient high-speed and intercity passenger rail networks connecting communities across America.
Some of the proposed CEs were chosen from the list of categorical exclusions currently employed by both the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) (see 23 CFR 771). FRA has identified these specific actions for categorical exclusion because they have direct applicability for many FRA programs and a limited potential for environmental impacts. All of the actions identified in this notice have been subject to prior extensive environmental review by FRA, FHWA and FTA, are comparable to activities categorically excluded by other Federal agencies, and were identified through FRA's benchmarking effort (described in greater detail below). These environmental reviews, mostly in the form of documented CEs and EAs, demonstrate that the actions do not individually or cumulatively have a significant effect on the human or natural environment. As required under FRA's Environmental Procedures, FRA staff evaluates each action individually to ensure that the action meets the criteria for categorical exclusion, and whether extraordinary circumstances exist that require additional environmental review.
FRA undertook a rigorous process to identify categories of actions appropriate for new CEs. This evaluation process included an internal review by FRA's Environment and Systems Planning Division as well as FRA's Office of Chief Counsel, independent review and comment by experts enlisted by FRA in coordination with FTA and the John A. Volpe National Transportation Systems Center in Cambridge Massachusetts (Volpe Center), submission to CEQ, and now publication for public review and opportunity to comment. FRA undertook this process to ensure that the types of projects covered by the new CEs presented in Section III below do not cause significant impacts on the human or natural environment.
The list of new CEs was generated in close collaboration with FTA. FRA and FTA each have responsibility for similar types of rail projects. FTA has historically provided funding for commuter rail projects, which have many similarities to intercity passenger rail projects and to freight railroad projects. In addition to using existing FTA CEs as templates, FRA has coordinated the effort to develop new CEs with FTA and jointly submitted its CEs to NEPA experts for independent review.
FTA and FRA, in coordination with the Volpe Center, called on several expert NEPA professionals to provide feedback on FTA's and FRA's initial list of actions to be classified as CEs. The experts' opinions were very valuable in refining the CEs, including identifying appropriate limitations necessary to avoid covering activities that have the potential to have significant environmental impacts. The experts were asked to draw upon their general knowledge of and experience/involvement with NEPA environmental processes. The submission to the experts consisted of the proposed CE, a brief explanation of the CE, and a list of comparative benchmarks or similar CEs currently employed by other Federal agencies. After a period of review, the experts submitted comments to FRA that included suggested changes or modifications or, in most cases, an endorsement of the proposed CE.
After receiving the experts' comments and suggestions, FRA staff met to discuss the comments and modified the CEs where appropriate. The experts suggested ways in which to narrow the categories of actions to ensure that all covered activities were likely to have less than significant impacts. In addition, using their own professional experience, they provided insights into the potential practical application of many of the proposed CEs.
Consistent with 40 CFR 1507.3 and the
FRA is making the Substantiation Document available on FRA's Web site
FRA is proposing to add the following seven CEs to section 4(c) of FRA's Environmental Procedures as follows:
(21) Alterations to existing facilities, locomotives, stations and rail cars in order to make them accessible for the elderly and persons with disabilities, such as modifying doorways, adding or modifying lifts, constructing access ramps and railings, modifying restrooms, or constructing accessible platforms.
(22) Bridge rehabilitation, reconstruction or replacement, and the construction of bridges, culverts, and grade separation projects, predominantly within existing right-of-way and that do not involve extensive in-water construction activities, such as projects replacing bridge components including stringers, caps, piles, or decks, the construction of roadway overpasses to replace at-grade crossings, or construction or replacement of short span bridges.
(23) Acquisition (including purchase or lease), rehabilitation, or maintenance of vehicles and equipment that does not cause a substantial increase in the use of infrastructure within the existing right-of-way or other previously disturbed locations, including locomotives, passenger coaches, freight cars, trainsets, and construction, maintenance or inspection equipment.
(24) Installation, repair and replacement of equipment and small structures designed to promote transportation safety, security, accessibility, communication or operational efficiency that take place predominantly within the existing right-of-way and do not result in a major change in traffic density on the existing rail line or facility, such as the installation, repair or replacement of surface treatments or pavement markings, small passenger shelters, railroad warning devices, train control systems, signalization, electric traction equipment and structures, electronics, photonics, and communications systems and equipment, equipment mounts, towers and structures, information processing equipment, or security equipment, including surveillance and detection cameras.
(25) Environmental restoration, remediation and pollution prevention activities in or proximate to existing and former railroad track, infrastructure, stations and facilities, including activities such as noise mitigation, landscaping, natural resource management activities, replacement or improvement to storm water systems, installation of pollution containment systems, slope stabilization, and contaminated soil removal in conformance with applicable regulations and permitting requirements.
(26) Assembly and construction of facilities and stations that are consistent with existing land use and zoning requirements, do not result in a major change in traffic density on existing rail or highway facilities and result in approximately less than 10 acres of surface disturbance, such as storage and maintenance facilities, freight or passenger loading and unloading facilities or stations, parking facilities, passenger platforms, canopies, shelters, pedestrian overpasses or underpasses, paving, or landscaping.
(27) Track and track structure maintenance and improvements when carried out predominantly within the existing right-of-way and that do not cause a substantial increase in rail traffic beyond existing or historic levels, such as stabilizing embankments, installing or reinstalling track, re-grading, replacing rail, ties, slabs and ballast, improving or replacing interlockings, or the installation or maintenance of ancillary equipment.
National Highway Traffic Safety Administration (NHTSA), DOT.
Request for public comment on proposed revision of the previously approved collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This document describes an Information Collection Request (ICR) for which NHTSA intends to seek OMB approval.
Comments must be submitted on or before August 13, 2012.
You may submit comments identified by DOT Docket ID Number NHTSA–2012–0066 using any of the following methods:
Instructions: Each submission must include the Agency name and the Docket number for the Notice. Note that all comments received will be posted without change to
Mary Hinch, Contracting Officer's Technical Representative, Office of Behavioral Safety Research (NTI–132), National Highway Traffic Safety Administration, 1200 New Jersey Ave. SE., W46–500, Washington, DC 20590. Mary Hinch's phone number is 202–366–5595 and her email address is
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the
(i) 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) 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) How to enhance the quality, utility, and clarity of the information to be collected; and
(iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
In compliance with these requirements, NHTSA asks public comment on the following proposed collection of information:
A Spanish-language translation and bilingual interviewers would be used to minimize language barriers to participation. Additionally, the proposed surveys would be anonymous; the surveys would not collect any personal information that would allow anyone to identify respondents. Participant names would not be collected during the interview. For the telephone surveys, the telephone number used to reach the respondent would be separated from their responses prior to entry into the analytical database. In addition, for the telephone surveys, the interviewers would use computer-assisted telephone interviewing to reduce interview length and minimize recording errors.
Driving distracted may influence the likelihood of a crash. This supports the need for strong evaluation efforts to identify what interventions are effective at reducing distracted driving. In this effort, NHTSA proposes to conduct information collections to assess the effectiveness of two traffic safety programs designed to reduce distracted driving. The programs will use waves of public media and enhanced enforcement activity to increase the perceived likelihood of getting a ticket for driving distracted and, consequently, decrease the occurrence of distracted driving behavior. NHTSA would like to conduct public awareness surveys to gather information from the driving public regarding their experience of the programs, including their awareness, perception, and knowledge of the programs. An essential part of these evaluation efforts is to compare baseline and post-program measures to determine if the programs contribute to changes in participant responses; therefore, multiple measurements would be required.
The findings from these two proposed information collections would build on existing knowledge. In 2010 and 2011, NHTSA conducted a high visibility enforcement program in Hartford, Connecticut and Syracuse, New York using enhanced enforcement and the media campaign,
The distracted driving program focused on texting behavior will be conducted at the community level in two States. If clearance is granted, awareness surveys would be administered in-person or by telephone to a population 18 years and older, before and after four program waves. Surveys would be conducted in two communities in each State. For the very first and very last measurement periods,
For the telephone surveys, interviews would be conducted with persons at both residential phone numbers and cell phone numbers. Systematic sampling procedures would include Random Digit Dial sampling techniques. Federal law prohibits the use of auto dialing to call cell phones; therefore all cell phone numbers would be dialed manually. For interviews conducted with persons using landline phones, no more than one respondent per household would be selected. For interviews conducted with persons on cell phones, a single user of the cell phone would be selected. Each sample member would complete just one interview. Businesses are ineligible for the sample and would not be interviewed.
44 U.S.C. Section 3506(c)(2)(A).
Surface Transportation Board, DOT.
Notice of exemption.
The Board is granting an exemption under 49 U.S.C. 10502, from the prior approval requirements of 49 U.S.C. 11323–25 for Genesee & Wyoming Inc. (GWI), a noncarrier, to continue in control of Columbus & Chattahoochee Railroad, Inc. (CCR), upon CCR's becoming a Class III rail carrier in a related transaction involving the lease from Norfolk Southern Railway Company (NSR), and operation of, a 25.50-mile rail line between Girard and Mahrt, Ala.,
This exemption will be effective on July 1, 2012. Petitions for stay must be filed by June 19, 2012. Petitions to reopen must be filed by June 25, 2012.
Send an original and 10 copies of all pleadings referring to Docket No. FD 35621, to: Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001. In addition, send one copy of pleadings to Eric M. Hocky, Thorp Reed & Armstrong, LLP, One Commerce Square, 2005 Market Street, Suite 1000, Philadelphia, PA 19103.
Jonathon Binet, (202) 245–0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877–8339.
Additional information is contained in the Board's decision, which is available on our Web site at
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Begeman.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning substantiation requirement for certain contributions.
Written comments should be received on or before August 13, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments excise tax relating to structured settlement factoring transactions.
Written comments should be received on or before August 13, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Notice 97–19 and Notice 98–34, Guidance for Expatriates under Internal Revenue Code sections 877, 2501, 2107 and 6039F.
Written comments should be received on or before August 13, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Allan Hopkins at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622–6665, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Notice 2007–70, Charitable Contributions of Certain Motor Vehicles, Boats and Airplanes, reporting Requirements under § 170(f)(12)(D).
Written comments should be received on or before August 13, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of notice should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 911, Application for Taxpayer Assistance Order (ATAO).
Written comments should be received on or before August 13, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622–6665, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning returns required with respect to controlled foreign partnerships and information reporting with respect to certain foreign partnerships and certain foreign corporations.
Written comments should be received on or before August 13, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Currently, the IRS is soliciting comments concerning information reporting for qualified tuition and related expenses, magnetic media filing requirements for information returns, information reporting for payments of interest on qualified education loans, and magnetic media filing requirements for information.
Written comments should be received on or before August 13, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulations should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The burden is reflected in the burdens for Form 1098–T and Form 1098–E.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed
Written comments should be received on or before August 13, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Notification of Citizens Coinage Advisory Committee June 26, 2012, Public Meeting.
Pursuant to United States Code, Title 31, section 5135(b)(8)(C), the United States Mint announces the Citizens Coinage Advisory Committee (CCAC) public meeting scheduled for June 26, 2012.
June 26, 2012.
Interested persons should call the CCAC HOTLINE at (202) 354–7502 for the latest update on meeting time and room location.
In accordance with 31 U.S.C. 5135, the CCAC:
• Advises the Secretary of the Treasury on any theme or design proposals relating to circulating coinage, bullion coinage, Congressional Gold Medals, and national and other medals.
• Advises the Secretary of the Treasury with regard to the events, persons, or places to be commemorated by the issuance of commemorative coins in each of the five calendar years succeeding the year in which a commemorative coin designation is made.
• Makes recommendations with respect to the mintage level for any commemorative coin recommended.
Andy Fishburn, United States Mint Liaison to the CCAC, 801 9th Street NW.; Washington, DC 20220; or call 202–354–7200.
Any member of the public interested in submitting matters for the CCAC's consideration is invited to submit them by fax to the following number: 202–756–6525.
31 U.S.C. 5135(b)(8)(C).
Forest Service, Agriculture; Fish and Wildlife Service, Interior.
Final rule.
This final rule establishes regulations for seasons, harvest limits, and methods and means related to the taking of wildlife for subsistence uses in Alaska during the 2012–13 and 2013–14 regulatory years. The Federal Subsistence Board (Board) completes the biennial process of revising subsistence hunting and trapping regulations in even-numbered years and subsistence fishing and shellfish regulations in odd-numbered years; public proposal and review processes take place during the preceding year. The Board also addresses customary and traditional use determinations during the applicable biennial cycle. This rulemaking replaces the wildlife taking regulations that expire on June 30, 2012. This rule also revises wildlife customary and traditional use determinations and the general regulations on subsistence taking of fish and wildlife.
This rule is effective July 1, 2012.
The Board meeting transcripts are available for review at the Office of Subsistence Management, 1011 East Tudor Road, Mail Stop 121, Anchorage, Alaska 99503, or on the Office of Subsistence Management Web site (
Chair, Federal Subsistence Board, c/o U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of Subsistence Management; (907) 786–3888 or
Under Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111–3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program (Program). This Program grants a preference for subsistence uses of fish and wildlife resources on Federal public lands and waters in Alaska. The Secretaries first published regulations to carry out this program in the
Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board comprises:
• A Chair, appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;
• The Alaska Regional Director, U.S. Fish and Wildlife Service;
• The Alaska Regional Director, U.S. National Park Service;
• The Alaska State Director, U.S. Bureau of Land Management;
• The Alaska Regional Director, U.S. Bureau of Indian Affairs;
• The Alaska Regional Forester, U.S. Forest Service; and
• Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture.
Through the Board, these agencies and public members participate in the development of regulations for subparts C and D, which, among other things, set forth program eligibility and specific harvest seasons and limits.
In administration of the Program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Regional Advisory Council. The Regional Advisory Councils provide a forum for rural residents with personal knowledge of local conditions and resources to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Regional Advisory Council members represent diverse geographical, cultural, and user interests within each region.
The Board addresses customary and traditional use determinations during the applicable biennial cycle. Section __.24 (customary and traditional use determinations) was originally published in the
The Departments published a proposed rule on February 9, 2011 (76 FR 6730), to amend the wildlife sections of subparts C and D of 36 CFR 242 and 50 CFR 100. The proposed rule opened a comment period, which closed on March 24, 2011. The Departments advertised the proposed rule by mail, radio, and newspaper. During that period, the Regional Councils met and, in addition to other Regional Council business, received suggestions for proposals from the public. The Board received a total of 95 (12 were deferred from the previous cycle) proposals for changes to subparts C and D. After the comment period closed, the Board prepared a booklet describing the proposals and distributed it to the public. The proposals were also available online. The public then had an additional 30 days in which to comment on the proposals for changes to the regulations.
The 10 Regional Advisory Councils met again, received public comments, and formulated their recommendations to the Board on proposals for their respective regions. The Regional Advisory Councils had a substantial role in reviewing the proposed rule and making recommendations for the final rule. Moreover, a Council Chair, or a designated representative, presented each Council's recommendations at the Board meeting on January 17–20, 2012. These final regulations reflect Board review and consideration of Regional Advisory Council recommendations and Tribal and public comments. The public received extensive opportunity to review and comment on all changes. In section __.24(a)(1), corrections to the spelling of certain village names and an updated format have been made, resulting in a more readable document.
Of the 95 proposals, 5 were withdrawn by the proponents, 50 were on the Board's regular agenda, and 40 were on the consensus agenda. The consensus agenda is made up of proposals for which there is agreement among the affected Subsistence Regional Advisory Councils, a majority of the Interagency Staff Committee, and the Alaska Department of Fish and Game concerning a proposed regulatory action. Anyone may request that the Board remove a proposal from the consensus agenda and place it on the regular agenda. The Board votes en masse on the consensus agenda after deliberation and action on all other proposals. Of the proposals on the consensus agenda, the Board adopted 14; adopted 2 with modification; rejected 21; and took no action on 3. Analysis and justification for the action taken on each proposal on the consensus agenda are available for review at the Office of Subsistence Management, 1011 East Tudor Road, Mail Stop 121, Anchorage, Alaska 99503, or on the Office of Subsistence Management Web site (
The Board rejected or took no action on 22 non-consensus proposals. The rejected proposals were recommended for rejection by one or more of the Regional Councils unless noted below.
The Board took no action on a brown bear handicraft proposal, based on its action on a similar proposal.
The Board rejected a proposal to change the designated hunter permit to only allow persons 60 years or older or disabled to designate another to hunt for them. This proposal would have been unnecessarily restrictive to subsistence users.
The Board rejected a proposal to require trappers to move a trap that incidentally harvests an ungulate at least 300 feet for the remainder of the regulatory year. This proposal would have been unnecessarily restrictive to subsistence users.
The Board took no action on a proposal to lengthen the trapping season in Units 1–4 for coyote based on its action on a similar proposal.
The Board rejected a proposal to close selected areas of Units 1 and 2 to brown bear hunting. This proposal would have been detrimental to the satisfaction of subsistence needs.
The Board rejected a proposal to limit the number of recipients a designated hunter may hunt deer for in Units 1B and 3. This proposal would have been detrimental to the satisfaction of subsistence needs.
The Board rejected a proposal to shorten the season in Unit 4 for deer. This proposal would have been detrimental to the satisfaction of subsistence needs.
The Board rejected a proposal to require antler destruction in Units 1–5 for deer and moose. This proposal would have been detrimental to the satisfaction of subsistence needs.
The Board rejected a proposal to establish a season and harvest limit in a portion of Unit 7 for moose. This proposal was found to violate recognized principles of wildlife conservation. This action was contrary to the Council recommendation.
The Board took no action on six proposals to revise season dates and permit requirements for moose in Unit 9 based on its action on a similar proposal.
The Board rejected a proposal to lengthen the season and increase the harvest limit in Unit 10 for wolves. This proposal was found to violate recognized principles of wildlife conservation. Board action was contrary to the Council recommendation.
The Board rejected a proposal to establish a season and harvest limit in Unit 11 for caribou. This proposal was found to violate recognized principles of wildlife conservation. This action was contrary to one council recommendation and consistent with the recommendation of another.
The Board took no action on two proposals to change the harvest limit and season for caribou in Unit 12 based on its action on a similar proposal.
The Board rejected a proposal to limit the use of aircraft during moose season in a portion of Unit 18. The Board does not have jurisdiction to restrict access methods on State and private lands. This action was contrary to the one Council's recommendation, one Council deferred making a recommendation, and another took no action.
The Board rejected a proposal to extend the fall season for moose in Unit 21B. The proposal was found to violate recognized principles of wildlife conservation. This action was contrary to one council recommendation and consistent with the recommendation of another.
The Board rejected a proposal to reduce the harvest limit of wolves in Unit 22 as being unnecessarily restrictive to subsistence users and not supported by substantial evidence.
The Board adopted or adopted with modification 27 non-consensus proposals. Modifications were suggested by the affected Regional Council(s), developed during the analysis process, suggested during tribal consultations, or developed during the Board's public deliberations. All of the adopted proposals were recommended for adoption by at least one of the Regional Councils unless noted below.
The Board adopted a proposal with modification which requires that prior to selling a handicraft incorporating brown bear claw(s), the hide or claw(s) not attached to a hide, must be sealed by an Alaska Department of Fish and Game representative.
The Board adopted a proposal with modification to allow the retention of coyotes that are taken incidentally while trapping in Units 1–5.
The Board adopted a proposal with modification to add mountain goat to the Federal Subsistence Designated Hunter permit and to limit the goat possession limit in Units 1–5.
The Board adopted a proposal to change the harvest limit for the Native Village of Eyak's annual Memorial Potlatch in Units 6B and 6C.
The Board adopted a proposal with modification to close the hunting season for fox in Unit 7. This action was based on conservation concerns and was contrary to the Council recommendation.
The Board adopted a proposal with modification to revise season dates and permit requirements for moose in Unit 9.
The Board adopted a proposal with modification to establish a season and harvest limit for caribou in Unit 9D.
The Board adopted a proposal with modification to revise the season dates of the elder and elder/minor hunts in Units 11 and 12, and the harvest limit of the elder and elder/minor hunts in Unit 11.
The Board adopted two proposals, one with modification, to revise the season dates, harvest limits, area descriptors, and permit requirements in Units 11 and 12 for moose.
The Board adopted a proposal to recognize the residents of Chistochina as having a positive customary and traditional use determination for caribou in Unit 12.
The Board adopted a proposal with modification to establish a season for caribou in a portion of Unit 12 and to close public lands except by residents of Chisana, Chistochina, Mentasta, Northway, Tetlin, and Tok.
The Board adopted with modification two proposals to revise the seasons and permit requirements for moose in Unit 12.
The Board adopted a proposal to lengthen the season for caribou in Unit 13. This proposal was supported by one Council and contrary to another.
The Board adopted a proposal with modification to recognize the residents of Ninilchik as having a positive customary and traditional use determination for brown bear in Units 15A and 15B. The Board deferred a decision for residents of Ninilchik on the customary and traditional use determination for brown bear in Unit 8 so that the two affected Councils may discuss the issue and present the Board with their findings.
The Board adopted a proposal with modification to establish area descriptors in Unit 18 and to shorten the season for caribou in a portion of Unit 18. This proposal was supported by two Councils, opposed by one, and another took no action.
The Board adopted a proposal to increase the harvest limit and lengthen the season for lynx in Unit 18.
The Board adopted a proposal with modification to allow the take of moose from a boat moving under power in an additional area of Unit 18.
The Board adopted a proposal with modification to increase the harvest limit for ptarmigan in Unit 18. This action was contrary to the Council's recommendation, and was based on the recommendation being made prior to a regulatory change made by the Alaska Board of Game.
The Board adopted a proposal with modification to prohibit the pursuit of ungulates with a motorized vehicle while the animal is at or near a full gallop in Unit 18. This decision was supported by one Council and contrary to two Councils recommendations. This proposal was supported by subsistence users in the local area and is not likely to be detrimental to the satisfaction of subsistence needs.
The Board adopted a proposal with modification to lengthen the season for moose in Unit 20E.
The Board adopted two proposals, one with modification, to align State and Federal boundaries within portions of Unit 24B and revise the permit requirements for the take of moose.
The Board adopted a proposal to close a portion of Unit 25A to the taking of sheep by non-Federally qualified users.
The Board adopted a proposal with modification to increase the harvest limit of brown bear in Unit 25D.
The Board adopted a proposal with modification to lengthen the season for brown bear in Units 26A and 26B.
These final regulations reflect Board review and consideration of Regional Council recommendations and Tribal and public comments. Because this rule concerns public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical text will be incorporated into 36 CFR 242 and 50 CFR 100.
The Board has provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act requirements, including publishing a proposed rule in the
A Draft Environmental Impact Statement (DEIS) for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments, and staff analyses and examined the environmental consequences of four alternatives. Proposed regulations (subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for a regulatory cycle regarding subsistence hunting and fishing regulations (subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992.
Based on the public comments received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture—Forest Service, implemented Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of a regulatory cycle for subsistence hunting and fishing regulations. The final rule for subsistence management regulations for public lands in Alaska, subparts A, B, and C, implemented the Federal Subsistence Management Program and included a framework for a regulatory cycle for the subsistence taking of wildlife and fish. The following
An environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries and is available from the office listed under
An ANILCA section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final section 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.
During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of this rule was conducted in accordance with section 810. That evaluation also supported the Secretaries' determination that the rule will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA section 810(a).
An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the following collections of information associated with the subsistence regulations at 36 CFR part 242 and 50 CFR part 100: Subsistence hunting and fishing applications, permits, and reports, Federal Subsistence Regional Advisory Council Membership Application/Nomination and Interview Forms (OMB Control No. 1018–0075 expires January 31, 2013).
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801
Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this Program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.
The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Secretaries have determined that these regulations meet the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.
In accordance with Executive Order 13132, the rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.
The Alaska National Interest Lands Conservation Act does not provide rights to Tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Board provided Federally recognized Tribes and Alaska Native Corporations an opportunity to consult on this rule. Consultation with Alaska Native Corporations is based on Public Law 108–199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108–447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native Corporations on the same basis as Indian tribes under Executive Order No. 13175.”
The Secretaries, through the Board, provided a variety of opportunities for tribal consultation: submitting proposals to change the existing rule, commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during this rulemaking process. In addition, 12 teleconference opportunities were provided to allow for consultation with the Board in each of the 10 subsistence resource regions for Tribal entities and two specifically for Alaska Native Corporations.
On January 17, 2012, the Board provided Federally recognized Tribes and Alaska Native Corporations a specific opportunity to consult on this rule. Federally recognized Tribes and Alaska Native Corporations were notified by mail and telephone and were given the opportunity to attend in person or via teleconference.
This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.
Theo Matuskowitz drafted these regulations under the guidance of Peter J. Probasco of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by:
• Daniel Sharp, Alaska State Office, Bureau of Land Management;
• Sandy Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park Service;
• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;
• Jerry Berg, Alaska Regional Office, U.S. Fish and Wildlife Service; and
• Steve Kessler, Alaska Regional Office, U.S. Forest Service.
Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife.
Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife.
For the reasons set out in the preamble, the Federal Subsistence Board amends title 36, part 242, and title 50, part 100, of the Code of Federal Regulations, as set forth below.
16 U.S.C. 3, 472, 551, 668dd, 3101–3126; 18 U.S.C. 3551–3586; 43 U.S.C. 1733.
(a) * * *
(1)
(a)
(b) Taking fish, wildlife, or shellfish for subsistence uses by a prohibited method is a violation of this part. Seasons are closed unless opened by Federal regulation. Hunting, trapping, or fishing during a closed season or in an area closed by this part is prohibited. You may not take for subsistence fish, wildlife, or shellfish outside established Unit or Area seasons, or in excess of the established Unit or Area harvest limits, unless otherwise provided for by the Board. You may take fish, wildlife, or shellfish under State regulations on public lands, except as otherwise restricted at §§ __.26 through __.28. Unit/Area-specific restrictions or allowances for subsistence taking of fish, wildlife, or shellfish are identified at §§ __.26 through __.28.
(c)
(1) Harvest limits authorized by this section and harvest limits established in State regulations may not be accumulated unless specified otherwise in §§ __.26, __.27. or __.28.
(2) Fish, wildlife, or shellfish taken by a designated individual for another person pursuant to § __.10(d)(5)(ii) counts toward the individual harvest limit of the person for whom the fish, wildlife, or shellfish is taken.
(3) A harvest limit may apply to the number of fish, wildlife, or shellfish that can be taken daily, seasonally and/or during a regulatory year or held in possession.
(4) Unless otherwise provided, any person who gives or receives fish, wildlife, or shellfish must furnish, upon a request made by a Federal or State agent, a signed statement describing the following: Names and addresses of persons who gave and received fish, wildlife, or shellfish; the time and place that the fish, wildlife, or shellfish was taken; and identification of species transferred. Where a qualified subsistence user has designated another qualified subsistence user to take fish, wildlife, or shellfish on his or her behalf in accordance with § __.10(d)(5)(ii), the permit must be furnished in place of a signed statement.
(d)
(1) Any species of fish that may be taken by subsistence fishing under this part may be taken under a designated harvest permit.
(2) If you are a Federally qualified subsistence user, you (beneficiary) may designate another Federally qualified subsistence user to take fish on your behalf. The designated fisherman must obtain a designated harvest permit prior to attempting to harvest fish and must return a completed harvest report. The designated fisherman may fish for any number of beneficiaries but may have no more than two harvest limits in his/her possession at any one time.
(3) The designated fisherman must have in possession a valid designated fishing permit when taking, attempting to take, or transporting fish taken under this section, on behalf of a beneficiary.
(4) The designated fisherman may not fish with more than one legal limit of gear.
(5) You may not designate more than one person to take or attempt to take fish on your behalf at one time. You may not personally take or attempt to take fish at the same time that a designated fisherman is taking or attempting to take fish on your behalf.
(e)
(f) A rural Alaska resident who has been designated to take fish, wildlife, or shellfish on behalf of another rural Alaska resident in accordance with § __.10(d)(5)(ii) must promptly deliver the fish, wildlife, or shellfish to that rural Alaska resident and may not charge the recipient for his/her services in taking the fish, wildlife, or shellfish or claim for themselves the meat or any part of the harvested fish, wildlife, or shellfish.
(g)
(1) A qualifying program must have instructors, enrolled students, minimum attendance requirements, and standards for successful completion of the course. Applications must be submitted to the Federal Subsistence Board through the Office of Subsistence Management and should be submitted 60 days prior to the earliest desired date of harvest. Harvest must be reported, and any animals harvested will count against any established Federal harvest quota for the area in which it is harvested.
(2) Requests for followup permits must be submitted to the in-season or local manager and should be submitted
(h)
(1) You may not take more fish, wildlife, or shellfish for subsistence use than the limits set out in the permit;
(2) You must obtain the permit prior to fishing or hunting;
(3) You must have the permit in your possession and readily available for inspection while fishing, hunting, or transporting subsistence-taken fish, wildlife, or shellfish;
(4) If specified on the permit, you must keep accurate daily records of the harvest, showing the number of fish, wildlife, or shellfish taken, by species, location, and date of harvest, and other such information as may be required for management or conservation purposes; and
(5) If the return of harvest information necessary for management and conservation purposes is required by a permit and you fail to comply with such reporting requirements, you are ineligible to receive a subsistence permit for that activity during the following regulatory year, unless you demonstrate that failure to report was due to loss in the mail, accident, sickness, or other unavoidable circumstances.
(i) You may not possess, transport, give, receive, or barter fish, wildlife, or shellfish that was taken in violation of Federal or State statutes or a regulation promulgated hereunder.
(j)
(1) You may not use wildlife as food for a dog or furbearer, or as bait, except as allowed for in § __.26, § __.27, or § __.28, or except for the following:
(i) The hide, skin, viscera, head, or bones of wildlife;
(ii) The skinned carcass of a furbearer;
(iii) Squirrels, hares (rabbits), grouse, or ptarmigan; however, you may not use the breast meat of grouse and ptarmigan as animal food or bait;
(iv) Unclassified wildlife.
(2) If you take wildlife for subsistence, you must salvage the following parts for human use:
(i) The hide of a wolf, wolverine, coyote, fox, lynx, marten, mink, weasel, or otter;
(ii) The hide and edible meat of a brown bear, except that the hide of brown bears taken in Units 5, 9B, 17, 18, portions of 19A and 19B, 21D, 22, 23, 24, and 26A need not be salvaged;
(iii) The hide and edible meat of a black bear;
(iv) The hide or meat of squirrels, hares, marmots, beaver, muskrats, or unclassified wildlife.
(3) You must salvage the edible meat of ungulates, bear, grouse, and ptarmigan.
(4) You may not intentionally waste or destroy any subsistence-caught fish or shellfish; however, you may use for bait or other purposes whitefish, herring, and species for which bag limits, seasons, or other regulatory methods and means are not provided in this section, as well as the head, tail, fins, and viscera of legally taken subsistence fish.
(5) Failure to salvage the edible meat may not be a violation if such failure is caused by circumstances beyond the control of a person, including theft of the harvested fish, wildlife, or shellfish, unanticipated weather conditions, or unavoidable loss to another animal.
(6) If you are a Federally qualified subsistence user, you may sell handicraft articles made from the skin, hide, pelt, or fur, including claws, of a black bear.
(i) In Units 1, 2, 3, 4, and 5, you may sell handicraft articles made from the skin, hide, pelt, fur, claws, bones, teeth, sinew, or skulls of a black bear taken from Units 1, 2, 3, or 5.
(ii) [Reserved].
(7) If you are a Federally qualified subsistence user, you may sell handicraft articles made from the skin, hide, pelt, or fur, including claws, of a brown bear taken from Units 1–5, 9A–C, 9E, 12, 17, 20, 22, 23, 24B (only that portion within Gates of the Arctic National Park), 25, or 26.
(i) In Units 1, 2, 3, 4, and 5, you may sell handicraft articles made from the skin, hide, pelt, fur, claws, bones, teeth, sinew, or skulls of a brown bear taken from Units 1, 4, or 5.
(ii) Prior to selling a handicraft incorporating a brown bear claw(s), the hide or claw(s) not attached to a hide must be sealed by an authorized Alaska Department of Fish and Game representative. Old claws may be sealed if an affidavit is signed indicating that the claws came from a brown bear harvested on Federal public lands by a Federally qualified user. A copy of the Alaska Department of Fish and Game sealing certificate must accompany the handicraft when sold.
(8) If you are a Federally qualified subsistence user, you may sell the raw fur or tanned pelt with or without claws attached from legally harvested furbearers.
(9) If you are a Federally qualified subsistence user, you may sell handicraft articles made from the nonedible byproducts (including, but not limited to, skin, shell, fins, and bones) of subsistence-harvested fish or shellfish.
(10) If you are a Federally qualified subsistence user, you may sell handicraft articles made from nonedible byproducts of wildlife harvested for subsistence uses (excluding bear), to include: Skin, hide, pelt, fur, claws, bones (except skulls of moose, caribou, elk, deer, sheep, goat, and musk ox), teeth, sinew, antlers and/or horns (if not attached to any part of the skull or made to represent a big game trophy) and hooves.
(11) The sale of handicrafts made from the nonedible byproducts of wildlife, when authorized in this part, may not constitute a significant commercial enterprise.
(12) You may sell the horns and antlers not attached to any part of the skull from legally harvested caribou (except caribou harvested in Unit 23), deer, elk, goat, moose, musk ox, and sheep.
(13) You may sell the raw/untanned and tanned hide or cape from a legally harvested caribou, deer, elk, goat, moose, musk ox, and sheep.
(k) The regulations found in this part do not apply to the subsistence taking and use of fish, wildlife, or shellfish regulated pursuant to the Fur Seal Act of 1966 (80 Stat. 1091, 16 U.S.C. 1187); the Endangered Species Act of 1973 (87 Stat. 884, 16 U.S.C. 1531–1543); the Marine Mammal Protection Act of 1972 (86 Stat. 1027; 16 U.S.C. 1361–1407); and the Migratory Bird Treaty Act (40 Stat. 755; 16 U.S.C. 703–711), or to any amendments to these Acts. The taking and use of fish, wildlife, or shellfish, covered by these Acts will conform to the specific provisions contained in these Acts, as amended, and any implementing regulations.
(l) Rural residents, nonrural residents, and nonresidents not specifically prohibited by Federal regulations from fishing, hunting, or trapping on public lands in an area may fish, hunt, or trap on public lands in accordance with the appropriate State regulations.
(a) You may take wildlife for subsistence uses by any method, except as prohibited in this section or by other Federal statute. Taking wildlife for subsistence uses by a prohibited method is a violation of this part. Seasons are closed unless opened by Federal regulation. Hunting or trapping during a closed season or in an area closed by this part is prohibited.
(b) Except for special provisions found at paragraphs (n)(1) through (26) of this section, the following methods and means of taking wildlife for subsistence uses are prohibited:
(1) Shooting from, on, or across a highway.
(2) Using any poison.
(3) Using a helicopter in any manner, including transportation of individuals, equipment, or wildlife; however, this prohibition does not apply to transportation of an individual, gear, or wildlife during an emergency rescue operation in a life-threatening situation.
(4) Taking wildlife from a motorized land or air vehicle when that vehicle is in motion, or from a motor-driven boat when the boat's progress from the motor's power has not ceased.
(5) Using a motorized vehicle to drive, herd, or molest wildlife.
(6) Using or being aided by use of a machine gun, set gun, or a shotgun larger than 10 gauge.
(7) Using a firearm other than a shotgun, muzzle-loaded rifle, rifle, or pistol using center-firing cartridges for the taking of ungulates, bear, wolves, or wolverine, except that—
(i) An individual in possession of a valid trapping license may use a firearm that shoots rimfire cartridges to take wolves and wolverine; and
(ii) Only a muzzle-loading rifle of .54-caliber or larger, or a .45-caliber muzzle-loading rifle with a 250-grain, or larger, elongated slug may be used to take brown bear, black bear, elk, moose, musk ox, and mountain goat.
(8) Using or being aided by use of a pit, fire, artificial light, radio communication, artificial salt lick, explosive, barbed arrow, bomb, smoke, chemical, conventional steel trap with a jaw spread over 9 inches, or conibear style trap with a jaw spread over 11 inches.
(9) Using a snare, except that an individual in possession of a valid hunting license may use nets and snares to take unclassified wildlife, ptarmigan, grouse, or hares; and individuals in possession of a valid trapping license may use snares to take furbearers.
(10) Using a trap to take ungulates or bear.
(11) Using hooks to physically snag, impale, or otherwise take wildlife; however, hooks may be used as a trap drag.
(12) Using a crossbow to take ungulates, bear, wolf, or wolverine in any area restricted to hunting by bow and arrow only.
(13) Taking of ungulates, bear, wolf, or wolverine with a bow, unless the bow is capable of casting an inch-wide broadhead-tipped arrow at least 175 yards horizontally, and the arrow and broadhead together weigh at least 1 ounce (437.5 grains).
(14) Using bait for taking ungulates, bear, wolf, or wolverine; except you may use bait to take wolves and wolverine with a trapping license, and you may use bait to take black bears with a hunting license as authorized in Unit-specific regulations at paragraphs (n)(1) through (26) of this section. Baiting of black bears is subject to the following restrictions:
(i) Before establishing a black bear bait station, you must register the site with ADF&G;
(ii) When using bait, you must clearly mark the site with a sign reading “black bear bait station” that also displays your hunting license number and ADF&G-assigned number;
(iii) You may use only biodegradable materials for bait; you may use only the head, bones, viscera, or skin of legally harvested fish and wildlife for bait;
(iv) You may not use bait within
(v) You may not use bait within 1 mile of a house or other permanent dwelling, or within 1 mile of a developed campground or developed recreational facility;
(vi) When using bait, you must remove litter and equipment from the bait station site when done hunting;
(vii) You may not give or receive payment for the use of a bait station, including barter or exchange of goods; and
(viii) You may not have more than two bait stations with bait present at any one time;
(15) Taking swimming ungulates, bears, wolves, or wolverine.
(16) Taking or assisting in the taking of ungulates, bear, wolves, wolverine, or other furbearers before 3:00 a.m. following the day in which airborne travel occurred (except for flights in regularly scheduled commercial aircraft); however, this restriction does not apply to subsistence taking of deer, the setting of snares or traps, or the removal of furbearers from traps or snares.
(17) Taking a bear cub or a sow accompanied by cub(s).
(c) Wildlife taken in defense of life or property is not a subsistence use; wildlife so taken is subject to State regulations.
(d) The following methods and means of trapping furbearers for subsistence uses pursuant to the requirements of a trapping license are prohibited, in addition to the prohibitions listed at paragraph (b) of this section:
(1) Disturbing or destroying a den, except that you may disturb a muskrat pushup or feeding house in the course of trapping;
(2) Disturbing or destroying any beaver house;
(3) Taking beaver by any means other than a steel trap or snare, except that you may use firearms in certain Units with established seasons as identified in Unit-specific regulations found in this subpart;
(4) Taking otter with a steel trap having a jaw spread of less than 5
(5) Using a net or fish trap (except a blackfish or fyke trap); and
(6) Taking or assisting in the taking of furbearers by firearm before 3:00 a.m. on the day following the day on which airborne travel occurred; however, this does not apply to a trapper using a firearm to dispatch furbearers caught in a trap or snare.
(e)
(1) Except as specified in paragraphs (e)(2) or (f)(1) of this section, or as otherwise provided, you may not take a species of wildlife in any unit, or portion of a unit, if your total take of that species already obtained anywhere in the State under Federal and State regulations equals or exceeds the harvest limit in that unit.
(2) An animal taken under Federal or State regulations by any member of a community with an established community harvest limit for that species counts toward the community harvest limit for that species. Except for wildlife taken pursuant to § __.10(d)(5)(iii) or as otherwise provided for by this part, an animal taken as part of a community harvest limit counts toward every community member's harvest limit for that species taken under Federal or State of Alaska regulations.
(f)
(1) The harvest limit specified for a trapping season for a species and the harvest limit set for a hunting season for the same species are separate and distinct. This means that if you have taken a harvest limit for a particular species under a trapping season, you may take additional animals under the harvest limit specified for a hunting season or vice versa.
(2) A brown/grizzly bear taken in a Unit or portion of a Unit having a harvest limit of “one brown/grizzly bear per year” counts against a “one brown/grizzly bear every four regulatory years” harvest limit in other Units. You may not take more than one brown/grizzly bear in a regulatory year.
(g)
(1) If subsistence take of Dall sheep is restricted to a ram, you may not possess or transport a harvested sheep unless both horns accompany the animal.
(2) If the subsistence taking of an ungulate, except sheep, is restricted to one sex in the local area, you may not possess or transport the carcass of an animal taken in that area unless sufficient portions of the external sex organs remain attached to indicate conclusively the sex of the animal, except that in Units 1–5 antlers are also considered proof of sex for deer if the antlers are naturally attached to an entire carcass, with or without the viscera; and except in Units 11, 13, 19, 21, and 24, where you may possess either sufficient portions of the external sex organs (still attached to a portion of the carcass) or the head (with or without antlers attached; however, the antler stumps must remain attached) to indicate the sex of the harvested moose; however, this paragraph (g)(2) does not apply to the carcass of an ungulate that has been butchered and placed in storage or otherwise prepared for consumption upon arrival at the location where it is to be consumed.
(3) If a moose harvest limit requires an antlered bull, an antler size, or configuration restriction, you may not possess or transport the moose carcass or its parts unless both antlers accompany the carcass or its parts. If you possess a set of antlers with less than the required number of brow tines on one antler, you must leave the antlers naturally attached to the unbroken, uncut skull plate; however, this paragraph (g)(3) does not apply to a moose carcass or its parts that have been butchered and placed in storage or otherwise prepared for consumption after arrival at the place where it is to be stored or consumed.
(h)
(i)
(j)
(1) Sealing requirements for bear apply to brown bears taken in all Units, except as specified in this paragraph, and black bears of all color phases taken in Units 1–7, 11–17, and 20.
(2) You may not possess or transport from Alaska the untanned skin or skull of a bear unless the skin and skull have been sealed by an authorized representative of ADF&G in accordance with State or Federal regulations, except that the skin and skull of a brown bear taken under a registration permit in Units 5, 9B, 9E, 17, 18, 19A and 19B downstream of and including the Aniak River drainage, 21D, 22, 23, 24, and 26A need not be sealed unless removed from the area.
(3) You must keep a bear skin and skull together until a representative of the ADF&G has removed a rudimentary premolar tooth from the skull and sealed both the skull and the skin; however, this provision does not apply to brown bears taken within Units 5, 9B, 9E, 17, 18, 19A and 19B downstream of and including the Aniak River drainage, 21D, 22, 23, 24, and 26A and which are not removed from the Unit.
(i) In areas where sealing is required by Federal regulations, you may not possess or transport the hide of a bear that does not have the penis sheath or vaginal orifice naturally attached to indicate conclusively the sex of the bear.
(ii) If the skin or skull of a bear taken in Units 9B, 17, 18, and 19A and 19B downstream of and including the Aniak River drainage is removed from the area, you must first have it sealed by an ADF&G representative in Bethel, Dillingham, or McGrath; at the time of sealing, the ADF&G representative must remove and retain the skin of the skull and front claws of the bear.
(iii) If you remove the skin or skull of a bear taken in Units 21D, 22, 23, 24, and 26A from the area or present it for commercial tanning within the area, you must first have it sealed by an ADF&G representative in Barrow, Galena, Nome, or Kotzebue; at the time of sealing, the ADF&G representative must remove and retain the skin of the skull and front claws of the bear.
(iv) If you remove the skin or skull of a bear taken in Unit 5 from the area, you must first have it sealed by an ADF&G representative in Yakutat.
(v) If you remove the skin or skull of a bear taken in Unit 9E from Unit 9, you must first have it sealed by an authorized sealing representative. At the time of sealing, the representative must remove and retain the skin of the skull and front claws of the bear.
(4) You may not falsify any information required on the sealing certificate or temporary sealing form provided by the ADF&G in accordance with State regulations.
(k)
(1) In Unit 18, you must obtain an ADF&G seal for beaver skins only if they are to be sold or commercially tanned.
(2) In Unit 2, you must seal any wolf taken on or before the 14th day after the date of taking.
(l) If you take a species listed in paragraph (k) of this section but are unable to present the skin in person, you must complete and sign a temporary sealing form and ensure that the completed temporary sealing form and skin are presented to an authorized representative of ADF&G for sealing consistent with requirements listed in paragraph (k) of this section.
(m) You may take wildlife, outside of established season or harvest limits, for food in traditional religious ceremonies, which are part of a funerary or mortuary cycle, including memorial potlatches, under the following provisions:
(1) The harvest does not violate recognized principles of wildlife conservation and uses the methods and means allowable for the particular species published in the applicable Federal regulations. The appropriate Federal land manager will establish the number, species, sex, or location of
(2) No permit or harvest ticket is required for harvesting under this section; however, the harvester must be a Federally qualified subsistence user with customary and traditional use in the area where the harvesting will occur.
(3) In Units 1–26 (except for Koyukon/Gwich'in potlatch ceremonies in Units 20F, 21, 24, or 25):
(i) A tribal chief, village or tribal council president, or the chief's or president's designee for the village in which the religious/cultural ceremony will be held, or a Federally qualified subsistence user outside of a village or tribal-organized ceremony, must notify the nearest Federal land manager that a wildlife harvest will take place. The notification must include the species, harvest location, and number of animals expected to be taken.
(ii) Immediately after the wildlife is taken, the tribal chief, village or tribal council president or designee, or other Federally qualified subsistence user must create a list of the successful hunters and maintain these records, including the name of the decedent for whom the ceremony will be held. If requested, this information must be available to an authorized representative of the Federal land manager.
(iii) The tribal chief, village or tribal council president or designee, or other Federally qualified subsistence user outside of the village in which the religious/cultural ceremony will be held must report to the Federal land manager the harvest location, species, sex, and number of animals taken as soon as practicable, but not more than 15 days after the wildlife is taken.
(4) In Units 20F, 21, 24, and 25 (for Koyukon/Gwich'in potlatch ceremonies only):
(i) Taking wildlife outside of established season and harvest limits is authorized if it is for food for the traditional Koyukon/Gwich'in Potlatch Funerary or Mortuary ceremony and if it is consistent with conservation of healthy populations.
(ii) Immediately after the wildlife is taken, the tribal chief, village or tribal council president, or the chief's or president's designee for the village in which the religious ceremony will be held must create a list of the successful hunters and maintain these records. The list must be made available, after the harvest is completed, to a Federal land manager upon request.
(iii) As soon as practical, but not more than 15 days after the harvest, the tribal chief, village council president, or designee must notify the Federal land manager about the harvest location, species, sex, and number of animals taken.
(n)
(1)
(i) Unit 1A consists of all drainages south of the latitude of Lemesurier Point including all drainages into Behm Canal, excluding all drainages of Ernest Sound.
(ii) Unit 1B consists of all drainages between the latitude of Lemesurier Point and the latitude of Cape Fanshaw including all drainages of Ernest Sound and Farragut Bay, and including the islands east of the center lines of Frederick Sound, Dry Strait (between Sergief and Kadin Islands), Eastern Passage, Blake Channel (excluding Blake Island), Ernest Sound, and Seward Passage.
(iii) Unit 1C consists of that portion of Unit 1 draining into Stephens Passage and Lynn Canal north of Cape Fanshaw and south of the latitude of Eldred Rock including Berners Bay, Sullivan Island, and all mainland portions north of Chichagof Island and south of the latitude of Eldred Rock, excluding drainages into Farragut Bay.
(iv) Unit 1D consists of that portion of Unit 1 north of the latitude of Eldred Rock, excluding Sullivan Island and the drainages of Berners Bay.
(v) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) Public lands within Glacier Bay National Park are closed to all taking of wildlife for subsistence uses;
(B) Unit 1A—in the Hyder area, the Salmon River drainage downstream from the Riverside Mine, excluding the Thumb Creek drainage, is closed to the taking of bear;
(C) Unit 1B—the Anan Creek drainage within 1 mile of Anan Creek downstream from the mouth of Anan Lake, including the area within a 1-mile radius from the mouth of Anan Creek Lagoon, is closed to the taking of bear;
(D) Unit 1C:
(
(
(vi) You may not trap furbearers for subsistence uses in Unit 1C, Juneau area, on the following public lands:
(A) A strip within one-quarter mile of the mainland coast between the end of Thane Road and the end of Glacier Highway at Echo Cove;
(B) That area of the Mendenhall Valley bounded on the south by the Glacier Highway, on the west by the Mendenhall Loop Road and Montana Creek Road and Spur Road to Mendenhall Lake, on the north by Mendenhall Lake, and on the east by the Mendenhall Loop Road and Forest Service Glacier Spur Road to the Forest Service Visitor Center;
(C) That area within the U.S. Forest Service Mendenhall Glacier Recreation Area;
(D) A strip within one-quarter mile of the following trails as designated on U.S. Geological Survey maps: Herbert Glacier Trail, Windfall Lake Trail, Peterson Lake Trail, Spaulding Meadows Trail (including the loop trail), Nugget Creek Trail, Outer Point Trail, Dan Moller Trail, Perseverance Trail, Granite Creek Trail, Mt. Roberts Trail and Nelson Water Supply Trail, Sheep Creek Trail, and Point Bishop Trail.
(vii) Unit-specific regulations:
(A) You may hunt black bear with bait in Units 1A, 1B, and 1D between April 15 and June 15.
(B) You may not shoot ungulates, bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(C) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(D) Trappers are prohibited from using a trap or snare unless the trap or snare has been individually marked with a permanent metal tag upon which is stamped or permanently etched the trapper's name and address, or the trapper's permanent identification number, or is set within 50 yards of a sign that lists the trapper's name and address, or the trapper's permanent identification number. The trapper must
(2)
(i) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may not shoot ungulates, bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(C) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(D) Trappers are prohibited from using a trap or snare unless the trap or snare has been individually marked with a permanent metal tag upon which is stamped or permanently etched the trapper's name and address, or the trapper's permanent identification number, or is set within 50 yards of a sign that lists the trapper's name and address, or the trapper's permanent identification number. The trapper must use the trapper's Alaska driver's license number or State identification card number as the required permanent identification number. If a trapper chooses to place a sign at a snaring site rather than tagging individual snares, the sign must be at least 3 inches by 5 inches in size, be clearly visible, and have numbers and letters that are at least one-half inch high and one-eighth inch wide in a color that contrasts with the color of the sign.
(ii) [Reserved].
(3)
(i) Unit 3 consists of all islands west of Unit 1B, north of Unit 2, south of the center line of Frederick Sound, and east of the center line of Chatham Strait including Coronation, Kuiu, Kupreanof, Mitkof, Zarembo, Kashevaroff, Woronkofski, Etolin, Wrangell, and Deer Islands.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) In the Petersburg vicinity, you may not take ungulates, bear, wolves, and wolverine along a strip one-fourth mile wide on each side of the Mitkof Highway from Milepost 0 to Crystal Lake campground;
(B) You may not take black bears in the Petersburg Creek drainage on Kupreanof Island;
(C) You may not hunt in the Blind Slough draining into Wrangell Narrows and a strip one-fourth mile wide on each side of Blind Slough, from the hunting closure markers at the southernmost portion of Blind Island to the hunting closure markers 1 mile south of the Blind Slough bridge.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may not shoot ungulates, bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(C) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(D) Trappers are prohibited from using a trap or snare unless the trap or snare has been individually marked with a permanent metal tag upon which is stamped or permanently etched the trapper's name and address, or the trapper's permanent identification number, or is set within 50 yards of a sign that lists the trapper's name and address, or the trapper's permanent identification number. The trapper must use the trapper's Alaska driver's license number or State identification card number as the required permanent identification number. If a trapper chooses to place a sign at a snaring site rather than tagging individual snares, the sign must be at least 3 inches by 5 inches in size, be clearly visible, and have numbers and letters that are at least one-half inch high and one-eighth inch wide in a color that contrasts with the color of the sign.
(4)
(i) Unit 4 consists of all islands south and west of Unit 1C and north of Unit 3 including Admiralty, Baranof, Chichagof, Yakobi, Inian, Lemesurier, and Pleasant Islands.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take brown bears in the Seymour Canal Closed Area (Admiralty Island) including all drainages into northwestern Seymour Canal between Staunch Point and the southernmost tip of the unnamed peninsula separating Swan Cove and King Salmon Bay including Swan and Windfall Islands;
(B) You may not take brown bears in the Salt Lake Closed Area (Admiralty Island) including all lands within one-fourth mile of Salt Lake above Klutchman Rock at the head of Mitchell Bay;
(C) You may not take brown bears in the Port Althorp Closed Area (Chichagof Island), that area within the Port Althorp watershed south of a line from Point Lucan to Salt Chuck Point (Trap Rock);
(D) You may not use any motorized land vehicle for brown bear hunting in the Northeast Chichagof Controlled Use Area (NECCUA) consisting of all portions of Unit 4 on Chichagof Island north of Tenakee Inlet and east of the drainage divide from the northwestern point of Gull Cove to Port Frederick Portage, including all drainages into Port Frederick and Mud Bay.
(iii) Unit-specific regulations:
(A) You may shoot ungulates from a boat. You may not shoot bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(B) Five Federal registration permits will be issued by the Sitka or Hoonah District Ranger for the taking of brown bear for educational purposes associated with teaching customary and traditional subsistence harvest and use practices. Any bear taken under an educational permit does not count in an individual's one bear every four regulatory years limit.
(C) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(D) Trappers are prohibited from using a trap or snare unless the trap or snare has been individually marked with a permanent metal tag upon which is stamped or permanently etched the trapper's name and address, or the trapper's permanent identification number, or is set within 50 yards of a sign that lists the trapper's name and address, or the trapper's permanent identification number. The trapper must use the trapper's Alaska driver's license number or State identification card number as the required permanent identification number. If a trapper chooses to place a sign at a snaring site rather than tagging individual snares, the sign must be at least 3 inches by 5 inches in size, be clearly visible, and have numbers and letters that are at least one-half inch high and one-eighth inch wide in a color that contrasts with the color of the sign.
(5)
(i) Unit 5 consists of all Gulf of Alaska drainages and islands between Cape Fairweather and the center line of Icy Bay, including the Guyot Hills:
(A) Unit 5A consists of all drainages east of Yakutat Bay, Disenchantment Bay, and the eastern edge of Hubbard Glacier, and includes the islands of Yakutat and Disenchantment Bays;
(B) Unit 5B consists of the remainder of Unit 5.
(ii) You may not take wildlife for subsistence uses on public lands within Glacier Bay National Park.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may not shoot ungulates, bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(C) You may hunt brown bear in Unit 5 with a Federal registration permit in lieu of a State metal locking tag if you have obtained a Federal registration permit prior to hunting.
(D) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(E) Trappers are prohibited from using a trap or snare unless the trap or snare has been individually marked with a permanent metal tag upon which is stamped or permanently etched the trapper's name and address, or the trapper's permanent identification number, or is set within 50 yards of a sign that lists the trapper's name and address, or the trapper's permanent identification number. The trapper must use the trapper's Alaska driver's license number or State identification card number as the required permanent identification number. If a trapper chooses to place a sign at a snaring site rather than tagging individual snares, the sign must be at least 3 inches by 5 inches in size, be clearly visible, and have numbers and letters that are at least one-half inch high and one-eighth inch wide in a color that contrasts with the color of the sign.
(6)
(i) Unit 6 consists of all Gulf of Alaska and Prince William Sound drainages from the center line of Icy Bay (excluding the Guyot Hills) to Cape Fairfield including Kayak, Hinchinbrook, Montague, and adjacent islands, and Middleton Island, but excluding the Copper River drainage upstream from Miles Glacier, and excluding the Nellie Juan and Kings River drainages:
(A) Unit 6A consists of Gulf of Alaska drainages east of Palm Point near Katalla including Kanak, Wingham, and Kayak Islands;
(B) Unit 6B consists of Gulf of Alaska and Copper River Basin drainages west of Palm Point near Katalla, east of the west bank of the Copper River, and east of a line from Flag Point to Cottonwood Point;
(C) Unit 6C consists of drainages west of the west bank of the Copper River, and west of a line from Flag Point to Cottonwood Point, and drainages east of the east bank of Rude River and drainages into the eastern shore of Nelson Bay and Orca Inlet;
(D) Unit 6D consists of the remainder of Unit 6.
(ii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may take coyotes in Units 6B and 6C with the aid of artificial lights.
(C) One permit will be issued by the Cordova District Ranger to the Native Village of Eyak to take one moose from Federal lands in Units 6B or C for their annual Memorial/Sobriety Day potlatch.
(D) A Federally qualified subsistence user (recipient) who is either blind, 65 years of age or older, at least 70 percent disabled, or temporarily disabled may designate another Federally qualified subsistence user to take any moose, deer, black bear, and beaver on his or her behalf in Unit 6, and goat in Unit 6D, unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients, but may have no more than one harvest limit in his or her possession at any one time.
(E) A hunter younger than 10 years old at the start of the hunt may not be issued a Federal subsistence permit to harvest black bear, deer, goat, moose, wolf, and wolverine.
(F) A hunter younger than 10 years old may harvest black bear, deer, goat, moose, wolf, and wolverine under the direct, immediate supervision of a licensed adult, at least 18 years old. The animal taken is counted against the adult's harvest limit. The adult is responsible for ensuring that all legal requirements are met.
(G) Up to five permits will be issued by the Cordova District Ranger to the Native Village of Chenega annually to harvest up to five deer total from Federal public lands in Unit 6D for their annual Old Chenega Memorial. Permits
(H) Up to five permits will be issued by the Cordova District Ranger to the Tatitlek IRA Council annually to harvest up to five deer total from Federal public lands in Unit 6D for their annual Cultural Heritage Week. Permits will have effective dates of July 1–June 30.
(7)
(i) Unit 7 consists of Gulf of Alaska drainages between Gore Point and Cape Fairfield including the Nellie Juan and Kings River drainages, and including the Kenai River drainage upstream from the Russian River, the drainages into the south side of Turnagain Arm west of and including the Portage Creek drainage, and east of 150° W. long., and all Kenai Peninsula drainages east of 150° W. long., from Turnagain Arm to the Kenai River.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take wildlife for subsistence uses in the Kenai Fjords National Park.
(B) You may not hunt in the Portage Glacier Closed Area in Unit 7, which consists of Portage Creek drainages between the Anchorage-Seward Railroad and Placer Creek in Bear Valley, Portage Lake, the mouth of Byron Creek, Glacier Creek, and Byron Glacier; however, you may hunt grouse, ptarmigan, hares, and squirrels with shotguns after September 1.
(C) You may not hunt moose in the Resurrection Creek Closed Area in Unit 7, which consists of the drainages of Resurrection Creek downstream from Rimrock and Highland Creeks including Palmer Creek.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15, except in the drainages of Resurrection Creek and its tributaries.
(B) [Reserved].
(8)
(i) If you have a trapping license, you may take beaver with a firearm in Unit 8 from Nov. 10–Apr. 30.
(ii) [Reserved].
(9)
(i) Unit 9 consists of the Alaska Peninsula and adjacent islands, including drainages east of False Pass, Pacific Ocean drainages west of and excluding the Redoubt Creek drainage; drainages into the south side of Bristol Bay, drainages into the north side of Bristol Bay east of Etolin Point, and including the Sanak and Shumagin Islands:
(A) Unit 9A consists of that portion of Unit 9 draining into Shelikof Strait and Cook Inlet between the southern boundary of Unit 16 (Redoubt Creek) and the northern boundary of Katmai National Park and Preserve.
(B) Unit 9B consists of the Kvichak River drainage except those lands drained by the Kvichak River/Bay between the Alagnak River drainage and the Naknek River drainage.
(C) Unit 9C consists of the Alagnak (Branch) River drainage, the Naknek River drainage, lands drained by the Kvichak River/Bay between the Alagnak River drainage and the Naknek River drainage, and all land and water within Katmai National Park and Preserve.
(D) Unit 9D consists of all Alaska Peninsula drainages west of a line from the southernmost head of Port Moller to the head of American Bay, including the Shumagin Islands and other islands of Unit 9 west of the Shumagin Islands.
(E) Unit 9E consists of the remainder of Unit 9.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take wildlife for subsistence uses in Katmai National Park;
(B) You may not use motorized vehicles, except aircraft, boats, or snowmobiles used for hunting and transporting a hunter or harvested animal parts from Aug. 1–Nov. 30 in the Naknek Controlled Use Area, which includes all of Unit 9C within the Naknek River drainage upstream from and including the King Salmon Creek drainage; however, you may use a motorized vehicle on the Naknek-King Salmon, Lake Camp, and Rapids Camp roads and on the King Salmon Creek trail, and on frozen surfaces of the Naknek River and Big Creek.
(iii) Unit-specific regulations:
(A) If you have a trapping license, you may use a firearm to take beaver in Unit 9B from April 1–May 31 and in the remainder of Unit 9 from April 1–30.
(B) You may hunt brown bear by State registration permit in lieu of a resident tag in Unit 9B, except that portion within the Lake Clark National Park and Preserve, if you have obtained a State registration permit prior to hunting.
(C) In Unit 9B, Lake Clark National Park and Preserve, residents of Iliamna, Newhalen, Nondalton, Pedro Bay, Port Alsworth, and that portion of the park resident zone in Unit 9B and 13.440 permit holders may hunt brown bear by Federal registration permit in lieu of a resident tag. Ten permits will be available with at least one permit issued in each community; however, no more than five permits will be issued in a single community. The season will be closed when four females or ten bears have been taken, whichever occurs first. The permits will be issued and closure announcements made by the Superintendent Lake Clark National Park and Preserve.
(D) Residents of Iliamna, Newhalen, Nondalton, Pedro Bay, and Port Alsworth may take up to a total of 10 bull moose in Unit 9B for ceremonial purposes, under the terms of a Federal registration permit from July 1–June 30. Permits will be issued to individuals only at the request of a local organization. This 10-moose limit is not cumulative with that permitted for potlatches by the State.
(E) For Units 9C and 9E only, a Federally qualified subsistence user
(F) For Unit 9D, a Federally qualified subsistence user (recipient) may designate another Federally qualified subsistence user to take caribou on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients but may have no more than four harvest limits in his/her possession at any one time.
(G) The communities of False Pass, King Cove, Cold Bay, Sand Point, and Nelson Lagoon annually may each take, from October 1–December 31 or May 10–25, one brown bear for ceremonial purposes, under the terms of a Federal registration permit. A permit will be issued to an individual only at the request of a local organization. The brown bear may be taken from either Unit 9D or Unit 10 (Unimak Island) only.
(H) You may hunt brown bear in Unit 9E with a Federal registration permit in lieu of a State locking tag if you have obtained a Federal registration permit prior to hunting.
(10)
(i) Unit 10 consists of the Aleutian Islands, Unimak Island, and the Pribilof Islands.
(ii) You may not take any wildlife species for subsistence uses on Otter Island in the Pribilof Islands.
(iii) In Unit 10—Unimak Island only, a Federally qualified subsistence user (recipient) may designate another Federally qualified subsistence user to take caribou on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients but may have no more than four harvest limits in his/her possession at any one time.
(iv) The communities of False Pass, King Cove, Cold Bay, Sand Point, and Nelson Lagoon annually may each take, from October 1–December 31 or May 10–25, one brown bear for ceremonial purposes, under the terms of a Federal registration permit. A permit will be issued to an individual only at the request of a local organization. The brown bear may be taken from either Unit 9D or Unit 10 (Unimak Island) only.
(11)
(i) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) One moose without calf may be taken from June 20–July 31 in the Wrangell-St. Elias National Park and Preserve in Unit 11 or 12 for the Batzulnetas Culture Camp. Two hunters from either Chistochina or Mentasta Village may be designated by the Mt. Sanford Tribal Consortium to receive the Federal subsistence harvest permit. The permit may be obtained from a Wrangell-St. Elias National Park and Preserve office.
(ii) A joint permit may be issued to a pair of a minor and an elder to hunt sheep during the Aug. 1–Oct. 20 hunt. The following conditions apply:
(A) The permittees must be a minor aged 8 to 15 years old and an accompanying adult 60 years of age or older.
(B) Both the elder and the minor must be Federally qualified subsistence users with a positive customary and traditional use determination for the area they want to hunt.
(C) The minor must hunt under the direct immediate supervision of the accompanying adult, who is responsible for ensuring that all legal requirements are met.
(D) Only one animal may be harvested with this permit. The sheep harvested will count against the harvest limits of both the minor and accompanying adult.
(12)
(i) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30; you may use bait to hunt wolves on FWS and BLM lands.
(B) You may not use a steel trap, or a snare using cable smaller than 3/32-inch diameter to trap coyotes or wolves in Unit 12 during April and October.
(C) One moose without calf may be taken from June 20–July 31 in the Wrangell-St. Elias National Park and Preserve in Unit 11 or 12 for the Batzulnetas Culture Camp. Two hunters from either Chistochina or Mentasta Village may be designated by the Mt. Sanford Tribal Consortium to receive the Federal subsistence harvest permit. The permit may be obtained from a Wrangell-St. Elias National Park and Preserve office.
(ii) A joint permit may be issued to a pair of a minor and an elder to hunt sheep during the Aug. 1–Oct. 20 hunt. The following conditions apply:
(A) The permittees must be a minor aged 8 to 15 years old and an accompanying adult 60 years of age or older.
(B) Both the elder and the minor must be Federally qualified subsistence users with a positive customary and traditional use determination for the area they want to hunt.
(C) The minor must hunt under the direct immediate supervision of the accompanying adult, who is responsible for ensuring that all legal requirements are met.
(D) Only one animal may be harvested with this permit. The sheep harvested will count against the harvest limits of both the minor and accompanying adult.
(13)
(i) Unit 13 consists of that area westerly of the east bank of the Copper River and drained by all tributaries into the west bank of the Copper River from Miles Glacier and including the Slana River drainages north of Suslota Creek; the drainages into the Delta River upstream from Falls Creek and Black Rapids Glacier; the drainages into the Nenana River upstream from the southeastern corner of Denali National Park at Windy; the drainage into the Susitna River upstream from its junction with the Chulitna River; the drainage into the east bank of the Chulitna River upstream to its confluence with Tokositna River; the drainages of the Chulitna River (south of Denali National Park) upstream from its confluence with the Tokositna River; the drainages into the north bank of the Tokositna River upstream to the base of the Tokositna Glacier; the drainages into the Tokositna Glacier; the drainages into the east bank of the Susitna River between its confluences with the Talkeetna and
(A) Unit 13A consists of that portion of Unit 13 bounded by a line beginning at the Chickaloon River bridge at Mile 77.7 on the Glenn Highway, then along the Glenn Highway to its junction with the Richardson Highway, then south along the Richardson Highway to the foot of Simpson Hill at Mile 111.5, then east to the east bank of the Copper River, then northerly along the east bank of the Copper River to its junction with the Gulkana River, then northerly along the west bank of the Gulkana River to its junction with the West Fork of the Gulkana River, then westerly along the west bank of the West Fork of the Gulkana River to its source, an unnamed lake, then across the divide into the Tyone River drainage, down an unnamed stream into the Tyone River, then down the Tyone River to the Susitna River, then down the south bank of the Susitna River to the mouth of Kosina Creek, then up Kosina Creek to its headwaters, then across the divide and down Aspen Creek to the Talkeetna River, then southerly along the boundary of Unit 13 to the Chickaloon River bridge, the point of beginning.
(B) Unit 13B consists of that portion of Unit 13 bounded by a line beginning at the confluence of the Copper River and the Gulkana River, then up the east bank of the Copper River to the Gakona River, then up the Gakona River and Gakona Glacier to the boundary of Unit 13, then westerly along the boundary of Unit 13 to the Susitna Glacier, then southerly along the west bank of the Susitna Glacier and the Susitna River to the Tyone River, then up the Tyone River and across the divide to the headwaters of the West Fork of the Gulkana River, then down the West Fork of the Gulkana River to the confluence of the Gulkana River and the Copper River, the point of beginning.
(C) Unit 13C consists of that portion of Unit 13 east of the Gakona River and Gakona Glacier.
(D) Unit 13D consists of that portion of Unit 13 south of Unit 13A.
(E) Unit 13E consists of the remainder of Unit 13.
(ii) Within the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take wildlife for subsistence uses on lands within Mount McKinley National Park as it existed prior to December 2, 1980. Subsistence uses as authorized by this paragraph (n)(13) are permitted in Denali National Preserve and lands added to Denali National Park on December 2, 1980.
(B) You may not use motorized vehicles or pack animals for hunting from Aug. 5–25 in the Delta Controlled Use Area, the boundary of which is defined as: a line beginning at the confluence of Miller Creek and the Delta River, then west to vertical angle benchmark Miller, then west to include all drainages of Augustana Creek and Black Rapids Glacier, then north and east to include all drainages of McGinnis Creek to its confluence with the Delta River, then east in a straight line across the Delta River to Mile 236.7 Richardson Highway, then north along the Richardson Highway to its junction with the Alaska Highway, then east along the Alaska Highway to the west bank of the Johnson River, then south along the west bank of the Johnson River and Johnson Glacier to the head of the Cantwell Glacier, then west along the north bank of the Cantwell Glacier and Miller Creek to the Delta River.
(C) Except for access and transportation of harvested wildlife on Sourdough and Haggard Creeks, Middle Fork trails, or other trails designated by the Board, you may not use motorized vehicles for subsistence hunting in the Sourdough Controlled Use Area. The Sourdough Controlled Use Area consists of that portion of Unit 13B bounded by a line beginning at the confluence of Sourdough Creek and the Gulkana River, then northerly along Sourdough Creek to the Richardson Highway at approximately Mile 148, then northerly along the Richardson Highway to the Middle Fork Trail at approximately Mile 170, then westerly along the trail to the Gulkana River, then southerly along the east bank of the Gulkana River to its confluence with Sourdough Creek, the point of beginning.
(D) You may not use any motorized vehicle or pack animal for hunting, including the transportation of hunters, their hunting gear, and/or parts of game from July 26–September 30 in the Tonsina Controlled Use Area. The Tonsina Controlled Use Area consists of that portion of Unit 13D bounded on the west by the Richardson Highway from the Tiekel River to the Tonsina River at Tonsina, on the north along the south bank of the Tonsina River to where the Edgerton Highway crosses the Tonsina River, then along the Edgerton Highway to Chitina, on the east by the Copper River from Chitina to the Tiekel River, and on the south by the north bank of the Tiekel River.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) Upon written request by the Camp Director to the Glennallen Field Office, 2 caribou, sex to be determined by the Glennallen Field Office Manager of the BLM, may be taken from Aug. 10–Sept. 30 or Oct. 21–Mar. 31 by Federal registration permit for the Hudson Lake Residential Treatment Camp. Additionally, 1 bull moose may be taken Aug. 1–Sept. 20. The animals may be taken by any Federally qualified hunter designated by the Camp Director. The hunter must have in his/her possession the permit and a designated hunter permit during all periods that are being hunted.
(C) Upon written request from the Ahtna Heritage Foundation to the Glennallen Field Office, either 1 bull moose or 2 caribou, sex to be determined by the Glennallen Field Office Manager of the Bureau of Land Management, may be taken from Aug 1–Sept. 20 for 1 moose or Aug. 10–Sept. 20 for 2 caribou by Federal registration permit for the Ahtna Heritage Foundation's culture camp. The permit will expire on September 20 or when the camp closes, whichever comes first. No combination of caribou and moose is allowed. The animals may be taken by any Federally qualified hunter designated by the Camp Director. The hunter must have in his/her possession the permit and a designated hunter permit during all periods that are being hunted.
(14)
(i) Unit 14 consists of drainages into the northern side of Turnagain Arm west of and excluding the Portage Creek drainage, drainages into Knik Arm excluding drainages of the Chickaloon and Matanuska Rivers in Unit 13, drainages into the northern side of Cook Inlet east of the Susitna River, drainages into the east bank of the Susitna River downstream from the Talkeetna River, and drainages into the south and west bank of the Talkeetna River to its confluence with Clear Creek, the western side drainages of a line going up the south bank of Clear Creek to the first unnamed creek on the south, then up that creek to lake 4408, along the northeastern shore of lake 4408, then southeast in a straight line to the northernmost fork of the Chickaloon River:
(A) Unit 14A consists of drainages in Unit 14 bounded on the west by the east bank of the Susitna River, on the north by the north bank of Willow Creek and Peters Creek to its headwaters, then east along the hydrologic divide separating the Susitna River and Knik Arm drainages to the outlet creek at lake 4408, on the east by the eastern boundary of Unit 14, and on the south by Cook Inlet, Knik Arm, the south bank
(B) Unit 14B consists of that portion of Unit 14 north of Unit 14A;
(C) Unit 14C consists of that portion of Unit 14 south of Unit 14A.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take wildlife for subsistence uses in the Fort Richardson and Elmendorf Air Force Base Management Areas, consisting of the Fort Richardson and Elmendorf Military Reservations;
(B) You may not take wildlife for subsistence uses in the Anchorage Management Area, consisting of all drainages south of Elmendorf and Fort Richardson military reservations and north of and including Rainbow Creek.
(iii) Unit-specific regulations:
(15)
(i) Unit 15 consists of that portion of the Kenai Peninsula and adjacent islands draining into the Gulf of Alaska, Cook Inlet, and Turnagain Arm from Gore Point to the point where longitude line 150°00′ W. crosses the coastline of Chickaloon Bay in Turnagain Arm, including that area lying west of longitude line 150°00′ W. to the mouth of the Russian River, then southerly along the Chugach National Forest boundary to the upper end of Upper Russian Lake; and including the drainages into Upper Russian Lake west of the Chugach National Forest boundary:
(A) Unit 15A consists of that portion of Unit 15 north of the north bank of the Kenai River and the northern shore of Skilak Lake;
(B) Unit 15B consists of that portion of Unit 15 south of the north bank of the Kenai River and the northern shore of Skilak Lake, and north of the north bank of the Kasilof River, the northern shore of Tustumena Lake, Glacier Creek, and Tustumena Glacier;
(C) Unit 15C consists of the remainder of Unit 15.
(ii) You may not take wildlife, except for grouse, ptarmigan, and hares that may be taken only from October 1 through March 1 by bow and arrow only, in the Skilak Loop Management Area, which consists of that portion of Unit 15A bounded by a line beginning at the easternmost junction of the Sterling Highway and the Skilak Loop (milepost 76.3), then due south to the south bank of the Kenai River, then southerly along the south bank of the
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15;
(B) You may not trap furbearers for subsistence in the Skilak Loop Wildlife Management Area;
(C) You may not trap marten in that portion of Unit 15B east of the Kenai River, Skilak Lake, Skilak River, and Skilak Glacier;
(D) You may not take red fox in Unit 15 by any means other than a steel trap or snare.
(16)
(i) Unit 16 consists of the drainages into Cook Inlet between Redoubt Creek and the Susitna River, including Redoubt Creek drainage, Kalgin Island, and the drainages on the western side of the Susitna River (including the Susitna River) upstream to its confluence with the Chulitna River; the drainages into the western side of the Chulitna River (including the Chulitna River) upstream to the Tokositna River, and drainages
(A) Unit 16A consists of that portion of Unit 16 east of the east bank of the Yentna River from its mouth upstream to the Kahiltna River, east of the east bank of the Kahiltna River, and east of the Kahiltna Glacier;
(B) Unit 16B consists of the remainder of Unit 16.
(ii) You may not take wildlife for subsistence uses in the Mount McKinley National Park, as it existed prior to December 2, 1980. Subsistence uses as authorized by this paragraph (n)(16) are permitted in Denali National Preserve and lands added to Denali National Park on December 2, 1980.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) [Reserved].
(17)
(i) Unit 17 consists of drainages into Bristol Bay and the Bering Sea between Etolin Point and Cape Newenham, and all islands between these points including Hagemeister Island and the Walrus Islands:
(A) Unit 17A consists of the drainages between Cape Newenham and Cape Constantine, and Hagemeister Island and the Walrus Islands;
(B) Unit 17B consists of the Nushagak River drainage upstream from, and including the Mulchatna River drainage and the Wood River drainage upstream from the outlet of Lake Beverley;
(C) Unit 17C consists of the remainder of Unit 17.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) Except for aircraft and boats and in legal hunting camps, you may not use any motorized vehicle for hunting ungulates, bears, wolves, and wolverine, including transportation of hunters and parts of ungulates, bear, wolves, or wolverine in the Upper Mulchatna Controlled Use Area consisting of Unit 17B, from Aug. 1–Nov. 1.
(B) [Reserved].
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting.
(C) If you have a trapping license, you may use a firearm to take beaver in Unit 17 from April 15–May 31. You may not take beaver with a firearm under a trapping license on National Park Service lands.
(18)
(i) Unit 18 consists of that area draining into the Yukon and Kuskokwim Rivers downstream from a straight line drawn between Lower Kalskag and Paimiut and the drainages flowing into the Bering Sea from Cape Newenham on the south to and including the Pastolik River drainage on the north; Nunivak, St. Matthew, and adjacent islands between Cape Newenham and the Pastolik River.
(ii) In the Kalskag Controlled Use Area, which consists of that portion of Unit 18 bounded by a line from Lower Kalskag on the Kuskokwim River, northwesterly to Russian Mission on the Yukon River, then east along the north bank of the Yukon River to the old site of Paimiut, then back to Lower Kalskag, you are not allowed to use aircraft for hunting any ungulate, bear, wolf, or wolverine, including the transportation of any hunter and ungulate, bear, wolf, or wolverine part; however, this does not apply to transportation of a hunter or ungulate, bear, wolf, or wolverine part by aircraft between publicly owned airports in the Controlled Use Area or between a publicly owned airport within the Area and points outside the Area.
(iii) Unit-specific regulations:
(A) If you have a trapping license, you may use a firearm to take beaver in Unit 18 from Apr. 1 through Jun. 10.
(B) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting.
(C) You may take caribou from a boat moving under power in Unit 18.
(D) You may take moose from a boat moving under power in that portion of Unit 18 west of a line running from the mouth of the Ishkowik River to the closest point of Dall Lake, then to the east bank of the Johnson River at its entrance into Nunavakanukakslak Lake (N 60°59.41′ Latitude; W 162°22.14′ Longitude), continuing upriver along a line
(E) Taking of wildlife in Unit 18 while in possession of lead shot size T, .20 calibre or less in diameter, is prohibited.
(F) You may not pursue with a motorized vehicle an ungulate that is at or near a full gallop.
(19)
(i) Unit 19 consists of the Kuskokwim River drainage upstream from a straight line drawn between Lower Kalskag and Piamiut:
(A) Unit 19A consists of the Kuskokwim River drainage downstream from and including the Moose Creek drainage on the north bank and downstream from and including the Stony River drainage on the south bank, excluding Unit 19B.
(B) Unit 19B consists of the Aniak River drainage upstream from and including the Salmon River drainage, the Holitna River drainage upstream from and including the Bakbuk Creek drainage, that area south of a line from the mouth of Bakbuk Creek to the radar dome at Sparrevohn Air Force Base, including the Hoholitna River drainage upstream from that line, and the Stony River drainage upstream from and including the Can Creek drainage.
(C) Unit 19C consists of that portion of Unit 19 south and east of a line from Benchmark M#1.26 (approximately 1.26 miles south of the northwestern corner of the original Mt. McKinley National Park boundary) to the peak of Lone Mountain, then due west to Big River, including the Big River drainage upstream from that line, and including the Swift River drainage upstream from and including the North Fork drainage.
(D) Unit 19D consists of the remainder of Unit 19.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not take wildlife for subsistence uses on lands within Mount McKinley National Park as it existed prior to December 2, 1980. Subsistence uses as authorized by this paragraph (n)(19) are permitted in Denali National Preserve and lands added to Denali National Park on December 2, 1980.
(B) In the Upper Kuskokwim Controlled Use Area, which consists of that portion of Unit 19D upstream from the mouth of the Selatna River, but excluding the Selatna and Black River drainages, to a line extending from Dyckman Mountain on the northern Unit 19D boundary southeast to the 1,610-foot crest of Munsatli Ridge, then south along Munsatli Ridge to the 2,981-foot peak of Telida Mountain, then northeast to the intersection of the western boundary of Denali National Preserve with the Minchumina–Telida winter trail, then south along the western boundary of Denali National Preserve to the southern boundary of Unit 19D, you may not use aircraft for hunting moose, including transportation of any moose hunter or moose part; however, this does not apply to transportation of a moose hunter or moose part by aircraft between publicly owned airports in the Controlled Use
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30;
(B) You may hunt brown bear by State registration permit in lieu of a resident tag in those portions of Units 19A and 19B downstream of and including the Aniak River drainage if you have obtained a State registration permit prior to hunting.
(20)
(i) Unit 20 consists of the Yukon River drainage upstream from and including the Tozitna River drainage to and including the Hamlin Creek drainage, drainages into the south bank of the Yukon River upstream from and including the Charley River drainage, the Ladue River and Fortymile River drainages, and the Tanana River drainage north of Unit 13 and downstream from the east bank of the Robertson River:
(A) Unit 20A consists of that portion of Unit 20 bounded on the south by the Unit 13 boundary, bounded on the east by the west bank of the Delta River, bounded on the north by the north bank of the Tanana River from its confluence with the Delta River downstream to its confluence with the Nenana River, and bounded on the west by the east bank of the Nenana River.
(B) Unit 20B consists of drainages into the northrn bank of the Tanana River from and including Hot Springs Slough upstream to and including the Banner Creek drainage.
(C) Unit 20C consists of that portion of Unit 20 bounded on the east by the east bank of the Nenana River and on the north by the north bank of the Tanana River downstream from the Nenana River.
(D) Unit 20D consists of that portion of Unit 20 bounded on the east by the east bank of the Robertson River and on the west by the west bank of the Delta River, and drainages into the north bank of the Tanana River from its confluence with the Robertson River downstream to, but excluding, the Banner Creek drainage.
(E) Unit 20E consists of drainages into the south bank of the Yukon River upstream from and including the Charley River drainage, and the Ladue River drainage.
(F) Unit 20F consists of the remainder of Unit 20.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not take wildlife for subsistence uses on lands within Mount McKinley National Park as it existed prior to December 2, 1980. Subsistence uses as authorized by this paragraph (n)(20) are permitted in Denali National Preserve and lands added to Denali National Park on December 2, 1980.
(B) You may not use motorized vehicles or pack animals for hunting Aug. 5–25 in the Delta Controlled Use Area, the boundary of which is defined as: a line beginning at the confluence of Miller Creek and the Delta River, then west to vertical angle benchmark Miller, then west to include all drainages of Augustana Creek and Black Rapids Glacier, then north and east to include all drainages of McGinnis Creek to its confluence with the Delta River, then east in a straight line across the Delta River to Mile 236.7 of the Richardson Highway, then north along the Richardson Highway to its junction with the Alaska Highway, then east along the Alaska Highway to the west bank of the Johnson River, then south along the west bank of the Johnson River and Johnson Glacier to the head of the Canwell Glacier, then west along the north bank of the Canwell Glacier and Miller Creek to the Delta River.
(C) You may not use firearms, snowmobiles, licensed highway vehicles or motorized vehicles, except aircraft and boats, in the Dalton Highway Corridor Management Area, which consists of those portions of Units 20, 24, 25, and 26 extending 5 miles from each side of the Dalton Highway from the Yukon River to milepost 300 of the Dalton Highway, except as follows: Residents living within the Dalton Highway Corridor Management Area may use snowmobiles only for the subsistence taking of wildlife. You may use licensed highway vehicles only on designated roads within the Dalton Highway Corridor Management Area. The residents of Alatna, Allakaket, Anaktuvuk Pass, Bettles, Evansville, Stevens Village, and residents living within the Corridor may use firearms within the Corridor only for subsistence taking of wildlife;
(D) You may not use any motorized vehicle for hunting August 5–September 20 in the Glacier Mountain Controlled Use Area, which consists of that portion of Unit 20E bounded by a line beginning at Mile 140 of the Taylor Highway, then north along the highway to Eagle, then west along the cat trail from Eagle to Crooked Creek, then from Crooked Creek southwest along the west bank of Mogul Creek to its headwaters on North Peak, then west across North Peak to the headwaters of Independence Creek, then southwest along the west bank of Independence Creek to its confluence with the North Fork of the Fortymile River, then easterly along the south bank of the North Fork of the Fortymile River to its confluence with Champion Creek, then across the North Fork of the Fortymile River to the south bank of Champion Creek and easterly along the south bank of Champion Creek to its confluence with Little Champion Creek, then northeast along the east bank of Little Champion Creek to its headwaters, then northeasterly in a direct line to Mile 140 on the Taylor Highway; however, this does not prohibit motorized access via, or transportation of harvested wildlife on, the Taylor Highway or any airport.
(E) You may by permit hunt moose on the Minto Flats Management Area, which consists of that portion of Unit 20 bounded by the Elliot Highway beginning at Mile 118, then northeasterly to Mile 96, then east to the Tolovana Hotsprings Dome, then east to the Winter Cat Trail, then along the Cat Trail south to the Old Telegraph Trail at Dunbar, then westerly along the trail to a point where it joins the Tanana River
(F) You may only hunt moose by bow and arrow in the Fairbanks Management Area. The Area consists of that portion of Unit 20B bounded by a line from the confluence of Rosie Creek and the Tanana River, northerly along Rosie Creek to Isberg Road, then northeasterly on Isberg Road to Cripple Creek Road, then northeasterly on Cripple Creek Road to the Parks Highway, then north on the Parks Highway to Alder Creek, then westerly to the middle fork of Rosie Creek through section 26 to the Parks Highway, then east along the Parks Highway to Alder Creek, then upstream along Alder Creek to its confluence with Emma Creek, then upstream along Emma Creek to its headwaters, then northerly along the hydrographic divide between Goldstream Creek drainages and Cripple Creek drainages to the summit of Ester Dome, then down Sheep Creek to its confluence with Goldstream Creek, then easterly along Goldstream Creek to Sheep Creek Road, then north on Sheep Creek Road to Murphy Dome Road, then west on Murphy Dome Road to Old Murphy Dome Road, then east on Old Murphy Dome Road to the Elliot Highway, then south on the Elliot Highway to Goldstream Creek, then easterly along Goldstream Creek to its confluence with First Chance Creek, Davidson Ditch, then southeasterly along the Davidson Ditch to its confluence with the tributary to Goldstream Creek in Section 29, then downstream along the tributary to its confluence with Goldstream Creek, then in a straight line to First Chance Creek, then up First Chance Creek to Tungsten Hill, then southerly along Steele Creek to its confluence with Ruby Creek, then upstream along Ruby Creek to Esro Road, then south on Esro Road to Chena Hot Springs Road, then east on Chena Hot Springs Road to Nordale Road, then south on Nordale Road to the Chena River, to its intersection with the Trans-Alaska Pipeline right of way, then southeasterly along the easterly edge of the Trans-Alaska Pipeline right of way to the Chena River, then along the north bank of the Chena River to the Moose Creek dike, then southerly along the Moose Creek dike to its intersection with the Tanana River, and then westerly along the north bank of the Tanana River to the point of beginning.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear April 15–June 30; you may use bait to hunt wolves on FWS and BLM lands.
(B) You may not use a steel trap, or a snare using cable smaller than
(C) Residents of Units 20 and 21 may take up to three moose per regulatory year for the celebration known as the Nuchalawoyya Potlatch, under the terms of a Federal registration permit. Permits will be issued to individuals at the request of the Native Village of Tanana only. This three-moose limit is not cumulative with that permitted by the State.
(21)
(i) Unit 21 consists of drainages into the Yukon River upstream from Paimiut to, but not including, the Tozitna River drainage on the north bank, and to, but not including, the Tanana River drainage on the south bank; and excluding the Koyukuk River drainage upstream from the Dulbi River drainage:
(A) Unit 21A consists of the Innoko River drainage upstream from and including the Iditarod River drainage.
(B) Unit 21B consists of the Yukon River drainage upstream from Ruby and east of the Ruby–Poorman Road, downstream from and excluding the Tozitna River and Tanana River drainages, and excluding the Melozitna River drainage upstream from Grayling Creek.
(C) Unit 21C consists of the Melozitna River drainage upstream from Grayling Creek, and the Dulbi River drainage upstream from and including the Cottonwood Creek drainage.
(D) Unit 21D consists of the Yukon River drainage from and including the Blackburn Creek drainage upstream to Ruby, including the area west of the Ruby–Poorman Road, excluding the Koyukuk River drainage upstream from the Dulbi River drainage, and excluding the Dulbi River drainage upstream from Cottonwood Creek.
(E) Unit 21E consists of the Yukon River drainage from Paimiut upstream to, but not including, the Blackburn Creek drainage, and the Innoko River
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) The Koyukuk Controlled Use Area, which consists of those portions of Unit 21 and 24 bounded by a line from the north bank of the Yukon River at Koyukuk at 64°52.58′ N. lat., 157°43.10′ W. long., then northerly to the confluences of the Honhosa and Kateel Rivers at 65°28.42′ N. lat., 157°44.89′ W. long., then northeasterly to the confluences of Billy Hawk Creek and the Huslia River (65°57 N. lat., 156°41 W. long.) at 65°56.66′ N. lat., 156°40.81′ W. long., then easterly to the confluence of the forks of the Dakli River at 66°02.56′ N. lat., 156°12.71′ W. long., then easterly to the confluence of McLanes Creek and the Hogatza River at 66°00.31′ N. lat., 155°18.57′ W. long., then southwesterly to the crest of Hochandochtla Mountain at 65°31.87′ N. lat., 154°52.18′ W. long., then southwest to the mouth of Cottonwood Creek at 65°13.00′ N. lat., 156°06.43′ W. long., then southwest to Bishop Rock (Yistletaw) at 64°49.35′ N. lat., 157°21.73′ W. long., then westerly along the north bank of the Yukon River (including Koyukuk Island) to the point of beginning, is closed during moose hunting seasons to the use of aircraft for hunting moose, including transportation of any moose hunter or moose part; however, this does not apply to transportation of a moose hunter or moose part by aircraft between publicly owned airports in the controlled use area or between a publicly owned airport within the area and points outside the area; all hunters on the Koyukuk River passing the ADF&G-operated check station at Ella's Cabin (15 miles upstream from the Yukon on the Koyukuk River) are required to stop and report to ADF&G personnel at the check station.
(B) The Paradise Controlled Use Area, which consists of that portion of Unit 21 bounded by a line beginning at the old village of Paimiut, then north along the west bank of the Yukon River to Paradise, then northwest to the mouth of Stanstrom Creek on the Bonasila River, then northeast to the mouth of the Anvik River, then along the west bank of the Yukon River to the lower end of Eagle Island (approximately 45 miles north of Grayling), then to the mouth of the Iditarod River, then down the east bank of the Innoko River to its confluence with Paimiut Slough, then south along the east bank of Paimiut Slough to its mouth, and then to the old village of Paimiut, is closed during moose hunting seasons to the use of aircraft for hunting moose, including transportation of any moose hunter or part of moose; however, this does not apply to transportation of a moose hunter or part of moose by aircraft between publicly owned airports in the Controlled Use Area or between a publicly owned airport within the area and points outside the area.
(iii) In Unit 21D, you may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting. Aircraft may not be used in any manner for brown bear hunting under the authority of a brown bear State registration permit, including transportation of hunters, bears, or parts of bears; however, this does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iv) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30; and in the Koyukuk Controlled Use Area, you may also use bait to hunt black bear between September 1 and September 25.
(B) If you have a trapping license, you may use a firearm to take beaver in Unit 21(E) from Nov. 1–June 10.
(C) The residents of Units 20 and 21 may take up to three moose per regulatory year for the celebration known as the Nuchalawoyya Potlatch, under the terms of a Federal registration permit. Permits will be issued to individuals only at the request of the Native Village of Tanana. This three-moose limit is not cumulative with that permitted by the State.
(D) The residents of Unit 21 may take up to three moose per regulatory year for the celebration known as the Kaltag/Nulato Stickdance, under the terms of a Federal registration permit. Permits will be issued to individuals only at the request of the Native Village of Kaltag or Nulato. This three-moose limit is not cumulative with that permitted by the State.
(22)
(i) Unit 22 consists of Bering Sea, Norton Sound, Bering Strait, Chukchi Sea, and Kotzebue Sound drainages from, but excluding, the Pastolik River drainage in southern Norton Sound to, but not including, the Goodhope River drainage in Southern Kotzebue Sound, and all adjacent islands in the Bering Sea between the mouths of the Goodhope and Pastolik Rivers:
(A) Unit 22A consists of Norton Sound drainages from, but excluding, the Pastolik River drainage to, and including, the Ungalik River drainage, and Stuart and Besboro Islands.
(B) Unit 22B consists of Norton Sound drainages from, but excluding, the Ungalik River drainage to, and including, the Topkok Creek drainage.
(C) Unit 22C consists of Norton Sound and Bering Sea drainages from, but excluding, the Topkok Creek drainage to, and including, the Tisuk River drainage, and King and Sledge Islands.
(D) Unit 22D consists of that portion of Unit 22 draining into the Bering Sea north of, but not including, the Tisuk River to and including Cape York and St. Lawrence Island;
(E) Unit 22E consists of Bering Sea, Bering Strait, Chukchi Sea, and Kotzebue Sound drainages from Cape York to, but excluding, the Goodhope River drainage, and including Little Diomede Island and Fairway Rock.
(ii) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting. Aircraft may not be used in any manner for brown bear hunting under the authority of a brown bear State registration permit, including transportation of hunters, bears, or parts of bears; however, this does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iii) Unit-specific regulations:
(A) If you have a trapping license, you may use a firearm to take beaver in Unit 22 during the established seasons.
(B) Coyote, incidentally taken with a trap or snare, may be used for subsistence purposes.
(C) A snowmachine may be used to position a hunter to select individual caribou for harvest provided that the animals are not shot from a moving snowmachine.
(D) The taking of one bull moose and up to three musk oxen by the community of Wales is allowed for the celebration of the Kingikmuit Dance Festival under the terms of a Federal registration permit. Permits will be issued to individuals only at the request of the Native Village of Wales. The harvest may only occur within regularly established seasons in Unit 22E. The harvest will count against any established quota for the area.
(E) A Federally qualified subsistence user (recipient) may designate another Federally qualified subsistence user to take musk oxen on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must get a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients in the course of a season, but have no more than two harvest limits in his/her possession at any one time, except in Unit 22E where a resident of Wales or Shishmaref acting as a designated hunter may hunt for any number of recipients, but have no more than four harvest limits in his/her possession at any one time.
(23)
(i) Unit 23 consists of Kotzebue Sound, Chukchi Sea, and Arctic Ocean drainages from and including the Goodhope River drainage to Cape Lisburne.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not use aircraft in any manner either for hunting of ungulates, bear, wolves, or wolverine, or for transportation of hunters or harvested species in the Noatak Controlled Use Area for the period August 15–September 30. The Area consists of that portion of Unit 23 in a corridor extending 5 miles on either side of the Noatak River beginning at the mouth of the Noatak River, and extending upstream to the mouth of Sapun Creek. This closure does not apply to the transportation of hunters or parts of ungulates, bear, wolves, or wolverine by regularly scheduled flights to communities by carriers that normally provide scheduled air service.
(B) [Reserved].
(iii) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting. Aircraft may not be used in any manner for brown bear hunting under the authority of a brown bear State registration permit, including transportation of hunters, bears, or parts of bears; however, this does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iv) Unit-specific regulations:
(A) You may take caribou from a boat moving under power in Unit 23.
(B) In addition to other restrictions on method of take found in this section, you may also take swimming caribou with a firearm using rimfire cartridges.
(C) If you have a trapping license, you may take beaver with a firearm in all of Unit 23 from Nov. 1–Jun. 10.
(D) For the Baird and DeLong Mountain sheep hunts—A Federally qualified subsistence user (recipient) may designate another Federally qualified subsistence user to take sheep on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for only one recipient in the course of a season and may have both his and the recipients' harvest limits in his/her possession at the same time.
(E) A snowmachine may be used to position a hunter to select individual caribou for harvest provided that the animals are not shot from a moving snowmachine.
(F) A Federally qualified subsistence user (recipient) may designate another Federally qualified subsistence user to take musk oxen on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must get a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients, but have no more than two harvest limits in his/her possession at any one time.
(24)
(i) Unit 24 consists of the Koyukuk River drainage upstream from but not including the Dulbi River drainage:
(A) Unit 24A consists of the Middle Fork of the Koyukuk River drainage upstream from but not including the Harriet Creek and North Fork Koyukuk River drainages, to the South Fork of the Koyukuk River drainage upstream from Squaw Creek, the Jim River Drainage, the Fish Creek drainage upstream from and including the Bonanza Creek drainage, to the 1,410 ft. peak of the hydrologic divide with the northern fork of the Kanuti Chalatna River at N. Lat. 66°33.303′ W. Long. 151°03.637′ and following the unnamed northern fork of the Kanuti Chalatna Creek to the confluence of the southern fork of the Kanuti Chalatna River at N. Lat 66°27.090′ W. Long. 151°23.841′, 4.2 miles SSW (194 degrees true) of Clawanmenka Lake and following the unnamed southern fork of the Kanuti Chalatna Creek to the hydrologic divide with the Kanuti River drainage at N. Lat. 66°19.789′ W. Long. 151°10.102′, 3.0 miles ENE (79 degrees true) from the 2,055 ft. peak on that divide, and the Kanuti River drainage upstream from the confluence of an unnamed creek at N. Lat. 66°13.050′ W. Long.151°05.864′, 0.9 miles SSE (155 degrees true) of a 1,980 ft. peak on that divide, and following that unnamed creek to the Unit 24 boundary on the hydrologic divide to the Ray River drainage at N. Lat. 66°03.827′ W. Long. 150°49.988′ at the 2,920 ft. peak of that divide.
(B) Unit 24B consists of the Koyukuk River Drainage upstream from Dog Island to the Subunit 24A boundary.
(C) Unit 24C consists of the Hogatza River Drainage, the Koyukuk River Drainage upstream from Batza River on the north side of the Koyukuk River and upstream from and including the Indian River Drainage on the south side of the Koyukuk River to the Subunit 24B boundary.
(D) Unit 24D consists of the remainder of Unit 24.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not use firearms, snowmobiles, licensed highway vehicles, or motorized vehicles, except aircraft and boats, in the Dalton Highway Corridor Management Area, which consists of those portions of Units 20, 24, 25, and 26 extending 5 miles from each side of the Dalton Highway from the Yukon River to milepost 300 of the Dalton Highway, except as follows: Residents living within the Dalton Highway Corridor Management Area may use snowmobiles only for the subsistence taking of wildlife. You may use licensed highway vehicles only on designated roads within the Dalton Highway Corridor Management Area. The residents of Alatna, Allakaket, Anaktuvuk Pass, Bettles, Evansville, and Stevens Village, and residents living within the Corridor may use firearms within the Corridor only for subsistence taking of wildlife.
(B) You may not use aircraft for hunting moose, including transportation of any moose hunter or moose part in the Kanuti Controlled Use Area, which consists of that portion of Unit 24 bounded by a line from the Bettles Field VOR to the east side of Fish Creek Lake, to Old Dummy Lake, to the south end of Lake Todatonten (including all waters of these lakes), to the northernmost headwaters of Siruk Creek, to the highest peak of Double Point Mountain, then back to the Bettles Field VOR; however, this does not apply to transportation of a moose hunter or moose part by aircraft between publicly owned airports in the controlled use area or between a publicly owned airport within the area and points outside the area.
(C) You may not use aircraft for hunting moose, including transportation of any moose hunter or moose part in the Koyukuk Controlled Use Area, which consists of those portions of Unit 21s and 24 bounded by a line from the north bank of the Yukon River at Koyukuk at 64°52.58′ N. lat., 157°43.10′ W. long., then northerly to the confluences of the Honhosa and Kateel Rivers at 65°28.42′ N. lat., 157°44.89′ W. long., then northeasterly to the confluences of Billy Hawk Creek and the Huslia River (65°57 N. lat., 156°41 W. long.) at 65° 56.66′; N. lat., 156°40.81′ W. long., then easterly to the confluence of the forks of the Dakli River at 66°02.56′ N. lat., 156°12.710 W. long., then easterly to the confluence of McLanes Creek and the Hogatza River at 66°00.31′ N. lat., 155°18.57′ W. long., then southwesterly to the crest of Hochandochtla Mountain at 65°31.87′ N. lat., 154°52.18′ W. long., then southwest to the mouth of Cottonwood Creek at 65°13.00′ N. lat., 156°06.43′ W. long., then southwest to Bishop Rock (Yistletaw) at 64°49.35′ N. lat., 157°21.73′ W. long., then westerly along the north bank of the Yukon River (including Koyukuk Island) to the point of beginning. However, this does not apply to transportation of a moose hunter or moose part by aircraft between publicly owned airports in the controlled use area or between a publicly owned airport within the area and points outside the area. All hunters on the Koyukuk River passing the ADF&G-operated check station at Ella's Cabin (15 miles upstream from the Yukon on the Koyukuk River) are required to stop and report to ADF&G personnel at the check station.
(iii) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting. You may not use aircraft in any manner for brown bear hunting under the authority of a brown bear State registration permit, including transportation of hunters, bears, or parts of bears. However, this prohibition does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iv) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30; and in the Koyukuk Controlled Use Area, you may also use bait to hunt black bear between September 1 and September 25;
(B) Arctic fox, incidentally taken with a trap or snare intended for red fox, may be used for subsistence purposes.
(25)
(i) Unit 25 consists of the Yukon River drainage upstream from but not including the Hamlin Creek drainage, and excluding drainages into the south bank of the Yukon River upstream from the Charley River:
(A) Unit 25A consists of the Hodzana River drainage upstream from the Narrows, the Chandalar River drainage upstream from and including the East Fork drainage, the Christian River drainage upstream from Christian, the Sheenjek River drainage upstream from and including the Thluichohnjik Creek, the Coleen River drainage, and the Old Crow River drainage.
(B) Unit 25B consists of the Little Black River drainage upstream from but not including the Big Creek drainage, the Black River drainage upstream from and including the Salmon Fork drainage, the Porcupine River drainage upstream from the confluence of the Coleen and Porcupine Rivers, and drainages into the north bank of the Yukon River upstream from Circle, including the islands in the Yukon River.
(C) Unit 25C consists of drainages into the south bank of the Yukon River upstream from Circle to the Subunit 20E boundary, the Birch Creek drainage upstream from the Steese Highway bridge (milepost 147), the Preacher Creek drainage upstream from and including the Rock Creek drainage, and the Beaver Creek drainage upstream from and including the Moose Creek drainage.
(D) Unit 25D consists of the remainder of Unit 25.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not use firearms, snowmobiles, licensed highway vehicles or motorized vehicles, except aircraft and boats in the Dalton Highway Corridor Management Area, which consists of those portions of Units 20, 24, 25, and 26 extending 5 miles from each side of the Dalton Highway from the Yukon River to milepost 300 of the Dalton Highway, except as follows: Residents living within the Dalton Highway Corridor Management Area may use snowmobiles only for the subsistence taking of wildlife. You may use licensed highway vehicles only on designated roads within the Dalton Highway Corridor Management Area. The residents of Alatna, Allakaket, Anaktuvuk Pass, Bettles, Evansville, Stevens Village, and residents living within the Corridor may use firearms within the Corridor only for subsistence taking of wildlife.
(B) The Arctic Village Sheep Management Area consists of that portion of Unit 25A north and west of Arctic Village, which is bounded on the east by the East Fork Chandalar River beginning at the confluence of Red Sheep Creek and proceeding southwesterly downstream past Arctic Village to the confluence with Crow Nest Creek, continuing up Crow Nest Creek, through Portage Lake, to its confluence with the Junjik River; then down the Junjik River past Timber Lake and a larger tributary, to a major, unnamed tributary, northwesterly, for approximately 6 miles where the stream forks into 2 roughly equal drainages; the boundary follows the easternmost fork, proceeding almost due north to the headwaters and intersects the Continental Divide; the boundary then follows the Continental Divide easterly, through Carter Pass, then easterly and northeasterly approximately 62 miles along the divide to the headwaters of the most northerly tributary of Red Sheep Creek then follows southerly along the divide designating the eastern extreme of the Red Sheep Creek drainage then to the confluence of Red Sheep Creek and the East Fork Chandalar River.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30 and between August 1 and September 25; you may use bait to hunt wolves on FWS and BLM lands.
(B) You may take caribou and moose from a boat moving under power in Unit 25.
(C) The taking of bull moose outside the seasons provided in this part for food in memorial potlatches and traditional cultural events is authorized in Unit 25D west provided that:
(
(
(
(
(26)
(i) Unit 26 consists of Arctic Ocean drainages between Cape Lisburne and the Alaska-Canada border, including the Firth River drainage within Alaska:
(A) Unit 26A consists of that portion of Unit 26 lying west of the Itkillik River drainage and west of the east bank of the Colville River between the mouth of the Itkillik River and the Arctic Ocean;
(B) Unit 26B consists of that portion of Unit 26 east of Unit 26A, west of the west bank of the Canning River and west of the west bank of the Marsh Fork of the Canning River;
(C) Unit 26C consists of the remainder of Unit 26.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not use aircraft in any manner for moose hunting, including transportation of moose hunters or parts of moose during the periods July. 1–Sept. 14 and Jan. 1–Mar. 31 in Unit 26A; however, this does not apply to transportation of moose hunters, their gear, or moose parts by aircraft between publicly owned airports.
(B) You may not use firearms, snowmobiles, licensed highway vehicles or motorized vehicles, except aircraft and boats, in the Dalton Highway Corridor Management Area, which consists of those portions of Units 20, 24, 25, and 26 extending 5 miles from each side of the Dalton Highway from the Yukon River to milepost 300 of the Dalton Highway, except as follows: Residents living within the Dalton Highway Corridor Management Area may use snowmobiles only for the subsistence taking of wildlife. You may use licensed highway vehicles only on designated roads within the Dalton Highway Corridor Management Area. The residents of Alatna, Allakaket, Anaktuvuk Pass, Bettles, Evansville, Stevens Village, and residents living within the Corridor may use firearms within the Corridor only for subsistence taking of wildlife.
(iii) You may hunt brown bear in Unit 26A by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting. You may not use aircraft in any manner for brown bear hunting under the authority of a brown bear State registration permit, including transportation of hunters, bears or parts of bears. However, this does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iv) Unit-specific regulations:
(A) You may take caribou from a boat moving under power in Unit 26.
(B) In addition to other restrictions on method of take found in this section, you may also take swimming caribou with a firearm using rimfire cartridges.
(C) In Kaktovik, a Federally qualified subsistence user (recipient) may designate another Federally qualified subsistence user to take sheep or musk ox on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients but may have no more than two harvest limits in his/her possession at any one time.
(D) For the DeLong Mountain sheep hunts—A Federally qualified subsistence user (recipient) may designate another Federally qualified subsistence user to take sheep on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for only one recipient in the course of a season and may have both his and the recipient's harvest limits in his/her possession at the same time.
Animal and Plant Health Inspection Service, USDA.
Interim final rule and request for comments.
We are amending a final rule, which will take effect when these amendments become effective, that will establish a herd certification program to control chronic wasting disease (CWD) in farmed or captive cervids in the United States. Under that rule, owners of deer, elk, and moose herds who choose to participate in the CWD Herd Certification Program would have to follow requirements for animal identification, testing, herd management, and movement of animals into and from herds. This document amends that final rule to provide that our regulations will set minimum requirements for the interstate movement of farmed or captive deer, elk, and moose but will not preempt State or local laws or regulations that are more restrictive than our regulations. This document requests public comment on that change. This document also amends the final rule to require farmed or captive deer, elk, and moose to participate in the Herd Certification Program and to be monitored for CWD for 5 years before they can move interstate, clarify our herd inventory procedures, establish an optional protocol for confirmatory DNA testing of CWD-positive samples, add a requirement to continue testing cervids that are killed or sent to slaughter from Certified herds, and make several other changes. These actions will help to control the incidence of CWD in farmed or captive cervid herds and prevent its spread.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Patrice Klein, Senior Staff Veterinarian, National Center for Animal Health Programs, Veterinary Services, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737–1231; (301) 851–3435.
This interim final rule with request for comments discusses our decision not to preempt State and local laws and regulations that are more restrictive than our regulations with respect to chronic wasting disease, except to allow transit of deer, elk, and moose that are otherwise eligible for interstate movement through States with more restrictive laws and regulations, in section III of the Background section under the heading “APHIS' Decision Not to Preempt More Restrictive State Requirements on Farmed or Captive Cervids With Respect to CWD.” We will consider all comments that we receive on this subject that are received by the date and time indicated in the
Chronic wasting disease (CWD) is a transmissible spongiform encephalopathy (TSE) of cervids (members of Cervidae, the deer family) that, as of May 2011, has been found only in wild and captive animals in North America and in captive animals in the Republic of Korea. First recognized as a clinical “wasting” syndrome in 1967, the disease is typified by chronic weight loss leading to death. Species currently known to be susceptible to CWD via natural routes of transmission include Rocky Mountain elk, mule deer, white-tailed deer, black-tailed deer, sika deer, and moose.
In the United States, as of March 2012, CWD has been confirmed in wild deer and elk in 16 States and in 39 farmed elk herds and 15 farmed or captive white-tailed deer herds in 11 States. The disease was first detected in U.S. farmed elk in 1997. It was also diagnosed in a wild moose in Colorado in 2005.
The presence of CWD in cervids causes significant economic and market losses to U.S. producers. Canada prohibits the importation of elk from Colorado and Wyoming and now requires that other cervids be accompanied by a certificate stating that CWD has not been diagnosed in the herd of origin. The Republic of Korea has suspended the importation of deer and elk and their products from the United States and Canada. The domestic prices for elk and deer have also been severely affected by fear of CWD.
To help producers avoid the losses caused by CWD infection and risk, we determined that it was necessary to establish a program that would actively identify herds infected with CWD and allow producers to manage these herds in a way that will prevent further spread of CWD. Specifically, on July 21, 2006, we published a final rule in the
Under the July 2006 final rule, owners of deer, elk, and moose herds who choose to participate would have to
After publication of the July 2006 final rule, but before its effective date, APHIS received three petitions requesting reconsideration of several requirements of the rule. On September 8, 2006, we published a notice in the
We received 77 comments by that date. They were from cervid producer associations, individual cervid producers, State animal health agencies, State wildlife agencies, and others. We carefully considered the petitions and the public comments received in response to them.
On March 31, 2009, we published in the
This final rule sets an effective date for the July 2006 final rule and makes changes to it based on the March 2009 proposal and on the comments we received on that proposal.
Under the Animal Health Protection Act (AHPA, 7 U.S.C. 8301
The CWD Herd Certification Program is a cooperative effort between APHIS, State animal health and wildlife agencies, and deer, elk, and moose owners. APHIS coordinates with these State agencies to encourage deer, elk, and moose owners to certify their herds as low risk for CWD by being in continuous compliance with the CWD Herd Certification Program standards.
Under subchapter B of part 55, States that participate in the CWD Herd Certification Program must establish State programs that are approved by APHIS. We will approve such programs if the State:
• Establishes movement restrictions on CWD-positive, CWD-suspect, and CWD-exposed animals, to prevent the spread of the disease, and requires testing of such animals.
• Conducts traceback on such animals, to determine what other animals may be affected.
• Requires testing of all animals that die or are killed. As we do not have live-animal tests for CWD, it is important to sample and test carcasses whenever possible to accurately evaluate the CWD risk in a herd.
• Maintain premises and animal identification for all herds participating in the CWD Herd Certification Program in the State. This is an integral part of being able to conduct traceback.
Herd owners will be approved to participate under State CWD Herd Certification Programs if they:
• Identify each animal in their herds through approved means of identification and maintain a complete inventory of the herd. These requirements are also integral to conducting traceback. Upon request by APHIS or the State, owners must also allow officials to conduct a herd inventory to verify the records.
• Add to their herds only animals that are from herds enrolled in the CWD Herd Certification Program, to ensure that animals added to herds are of known risk.
• Maintain perimeter fencing adequate to prevent ingress or egress of cervids, to prevent CWD from being spread through contact with wild cervids.
• Report to APHIS or the State all animals that escape or disappear, and report to APHIS or the State all animals that die or are killed and make their carcasses available for tissue sampling and testing.
Herds are given a status based on the date they enrolled in the program. Herds that do not have any CWD-infected or CWD-exposed animals for 5 years will be granted Certified status. (Herd owners who participate in State CWD Herd Certification Programs that are approved by APHIS will be credited for the time they have participated in such a program towards the 5-year requirement.) Based on current science, 5 years of surveillance is a reasonable time period to determine whether the disease is present in the herd, as CWD has an incubation period. Thus, the movement of animals from a Certified herd poses a low risk of spreading CWD.
The movement restrictions in 9 CFR part 81 therefore allow deer, elk, and moose from Certified herds to move interstate. They also allow the interstate movement of wild animals captured for interstate movement or release, if identified with two forms of animal identification, including one official identification, and if the source population has been documented to be low risk for CWD based on a surveillance program. The part also allows the interstate movement of animals moved for slaughter; research animals; and other animals on a case-by-case basis. Finally, this part includes provisions under which deer, elk, or moose that are eligible to move interstate may transit a State that bans or restricts the entry of such animals en route to another State.
A detailed discussion of the provisions of 9 CFR part 55, subchapter B, and 9 CFR part 81 is available in the July 2006 final rule. This document concentrates on the changes we are making to the July 2006 final rule
• The March 2009 proposal indicated that the goal of the CWD program was to eliminate the disease in farmed or captive cervids. We have now determined that our goal is to control the spread of the disease. The persistence of CWD in wild cervid populations and our current lack of knowledge about the transmission of CWD have made the goal of eliminating CWD from farmed or captive cervids impractical.
• Our CWD regulations will set minimum standards for State CWD Herd Certification Programs and for the interstate movement of cervids. The March 2009 proposal indicated that we would preempt State and local laws and regulations that were more restrictive as well. However, we have since decided that our regulations will not preempt State and local laws and regulations that are more stringent than our regulations, except that (as noted earlier) cervids that are eligible to move interstate may transit a State that bans or restricts the entry of such animals en route to another State. We are soliciting public comment on this decision, as described below under the heading “APHIS' Decision Not to Preempt More Restrictive State Requirements on Farmed or Captive Cervids With Respect to CWD.”
• The March 2009 proposed rule included some proposed provisions designed to give States options to regulate CWD within the context of Federal preemption of State and local laws and regulations, such as allowing States to prohibit entry of cervids for reasons unrelated to CWD and because of proximity to findings of CWD in wildlife. We are not including those provisions in this final rule because they are no longer necessary given our decision on preemption.
• Because our goal is now to control the spread of CWD rather than to eliminate it, we are not requiring States to conduct surveillance for CWD in wild cervid populations or requiring States to prohibit the addition of animals to herds containing CWD-positive, CWD-exposed, or CWD-suspect animals.
• Based on comments on the March 2009 proposed rule, we are removing an exemption in the July 2006 final rule under which Certified herds were not required to make animals that were sent for slaughter or killed on shooter operations available for testing. We are also making several minor changes to improve the clarity of the changes we proposed and of the regulations.
We solicited comments concerning the March 2009 proposal for 60 days ending July 1, 2009. We received 78 comments by that date. They were from producers, researchers, and representatives of State governments. They are discussed below by topic.
Several commenters recommended that we withdraw the July 2006 final rule, rather than making changes to it as described in the proposal and issuing a revised final rule. These commenters stated that designing a Federal program for control of CWD in captive cervids is about a decade too late to be useful. The commenters doubted that, at this point in time, the Federal program as described would materially improve CWD control beyond what has already been achieved by the collective coordinated efforts of State animal health and wildlife management agencies. Rather, the commenters stated, options for providing Federal assistance to States would be most beneficial and efficient. Commenters also stated that, under this approach, many of the key elements of the Federal CWD Herd Certification Program could still be provided by APHIS to the States as guidance for establishing or refining their respective CWD control programs.
We have determined that a voluntary Federal CWD program is necessary to give States from which farmed or captive cervids are moved interstate and herd owners who move farmed or captive cervids interstate the opportunity to demonstrate that they meet minimum standards for CWD management. These minimum standards are necessary for an effective CWD program. Guidelines for a CWD program, rather than mandatory requirements, would not be sufficient to ensure that the CWD program is effective.
Accordingly, this final rule announces our intention to amend the July 2006 final rule and set an effective date for the amended final rule of August 13, 2012. The regulatory text at the end of this document includes the complete text of the July 2006 final rule, as amended by this final rule. The changes to the July 2006 final rule are described in the March 2009 proposed rule and the Background section of this document.
We agree with the commenters that circumstances relevant to a Federal CWD program have changed over time, necessitating a change in the objective of the CWD program. In the July 2006 final rule and the March 2009 proposed rule, as well as all our previous CWD-related rules, the stated objective of the CWD program was the elimination of CWD from captive and farmed cervids in the United States. We have now concluded, however, that our CWD objective should be to establish a herd certification program for herd owners and States to control the incidence of CWD in farmed and captive cervids and prevent the interstate spread of CWD. We have concluded that elimination of CWD from farmed and captive cervids is not practical given the persistence of CWD in wild cervid populations and our current lack of knowledge about how CWD may be transmitted between wild cervid populations and farmed and captive cervids. The CWD Herd Certification Program will allow States and herd owners to monitor herds of farmed and captive cervids to ensure that they are at low risk for CWD, and our regulations in part 81 will allow only farmed or captive deer, elk, and moose from herds that have reached Certified status in the CWD Herd Certification Program, after 5 years of monitoring, to be moved interstate, with limited exceptions.
A few commenters stated that the position that a Federal CWD program is unnecessary is in keeping with APHIS' overall intent to phase out regulatory efforts for “program diseases” in the coming decade.
We assume the commenters are referring to our plans for the strategic future of APHIS' Veterinary Services (VS) program,
One commenter stated that the proposed rule will fail to adequately control CWD in farmed or captive cervids in the United States. The commenter cited increases in positive tests of farmed and captive cervids for
The suspension of the effective date of the July 2006 final rule means that States and herd owners have not been required to comply with its provisions. The CWD Herd Certification Program we are establishing imposes new controls on the interstate movement of deer, elk, and moose. The requirements for interstate movement and herd certification in the July 2006 final rule, with the modifications discussed in the March 2009 proposal and in this document, will help prevent the spread of CWD.
With respect to the commenter's specific concern regarding the July 2006 final rule, § 55.23(b)(3) requires herd owners to inform an APHIS or State representative regarding all animals that die (including animals killed on premises maintained for hunting and animals sent to slaughter) and to make the carcasses of the animals available for tissue sampling and testing in accordance with instructions from the APHIS or State representative. We expect that we will test all samples that will be provided to us. If a herd had no mortality for 5 years, which is unlikely, it could reach Certified status without having animals tested. However, given our current knowledge about the biology of CWD, there is a low risk that CWD will be present in a herd after 5 years of monitoring with no mortality. In addition, continued surveillance will be required for any Certified herd to retain its Certified status.
In the Background section of the July 2006 final rule, under the heading “Executive Order 12988,” we stated that the July 2006 final rule preempted all State and local laws and regulations that were in conflict with it. Our intent was to establish uniform requirements that would apply to the interstate movement of farmed or captive cervids to each of the States.
The petitions we received and made available with the November 2006 notice indicated strong opposition to Federal preemption of State restrictions on farmed and captive cervids with respect to CWD. We considered the petitions, and the comments on the petitions, in developing the proposed rule we published in the
As discussed earlier, we have now concluded that our objective with respect to CWD should be to establish a herd certification program for herd owners and States to control the incidence of CWD in farmed and captive cervids and prevent the interstate spread of CWD, as elimination of CWD from farmed and captive cervids is not practical. Accordingly, these CWD regulations will set mandatory minimum requirements for interstate movement of farmed or captive cervids with respect to CWD; they will not preempt State and local laws and regulations on CWD in farmed or captive cervids when those laws and regulations are more restrictive than the Federal regulations. (The only exception is with respect to the movement of farmed or captive cervids through a State, as discussed later in this document.)
This approach will ensure that there are minimum requirements applicable to the interstate movement of farmed or captive cervids, while also allowing State and local laws, regulations, and policies to impose additional requirements on farmed or captive cervids as necessary to address local needs. We believe this approach is appropriate for CWD, where we have limited methods for diagnosing the disease and preventing its spread and where the goal of the program is to control, rather than eradicate, the disease.
Several commenters focused on the issue of State wildlife management authority. These commenters stated that States must retain authority to regulate and manage wildlife resources more stringently if they feel that risks are not adequately mitigated by the Federal program. The commenters specifically cited banning movement of captive cervids into a State for any reason, including risks related to CWD.
The CWD Herd Certification Program seeks to control CWD in farmed or captive cervids. We are not imposing requirements on States with respect to management of wild cervid populations, except when those populations could pose a disease risk to farmed or captive cervids, such as the translocation of wild cervids from wild populations that have not been assessed for CWD. As long as they do not affect farmed or captive cervids, State and local laws and regulations related to management of wild cervid populations are not affected by the CWD regulations. The only provision of the July 2006 final rule that relates to wild cervids is a requirement that animals captured from wild populations for interstate movement and release be accompanied by a certificate documenting the source population to be low risk for CWD, based on a CWD surveillance program that is approved by the State government of the receiving State and by APHIS. This requirement is directly related to and necessary for preventing the introduction of CWD into farmed or captive cervid populations, although it provides some protection for wild cervid populations as well.
The July 2006 final rule contained requirements in § 81.3(b) for interstate movement of captive cervids that were captured from free-ranging populations. In this final rule, we are changing the description of these populations to “wild populations,” as farmed or captive cervids may range freely on their premises without being considered “free-ranging” for the purposes of the regulations. We are also replacing references to “free-ranging” in the definitions of
Several commenters also expressed concern regarding classifying farmed or captive cervids as livestock. These commenters noted that APHIS' authority to prevent, control, or eradicate diseases, pursuant to the AHPA, specifically refers to livestock. These commenters pointed out that that the legal definition of livestock is highly variable among States; many States do not define captive native species as “livestock,” since livestock is not always within the sole jurisdiction of their fish and wildlife agencies. Thus, the commenters stated, in some instances captive cervids of native species may not fall within the Federal definition of livestock. The commenters
We appreciate the commenters' concerns. Clearly, farmed and captive cervids are not traditional livestock; they are often referred to as alternative livestock. We understand that State fish and wildlife agencies in many States are responsible for the management of all cervids within their State, not just those that are wild but also those held on farms or in other captive situations. Nonetheless, these agencies may not have experience working within the context of a program designed to control an animal disease in farmed or captive animal populations.
The AHPA charges the U.S. Department of Agriculture with the responsibility of controlling or eradicating any pest or disease of livestock, and defines “livestock” broadly as “all farm-raised animals.” This means that all farmed or captive cervids fall under the AHPA definition of livestock. Under this authority, we have determined that it is appropriate to establish requirements for the interstate movement of farmed or captive cervids to help prevent the spread of CWD. To the extent that State fish and wildlife agencies are responsible for farmed or captive cervids in their States, they will need to cooperate with APHIS in the administration of the CWD regulations. We will work with State fish and wildlife agencies to help them to understand their responsibilities and to ensure that we can cooperate well. It is important to reiterate that States retain the authority to manage fish and wildlife populations, including wild cervids, under this final rule.
Several commenters urged the adoption of regulations that would preempt State and local laws and regulations on farmed or captive cervids with respect to CWD. Commenters noted that the movement of farmed and captive deer and elk has been extremely difficult because of a variety of different rules at the State level, with some States banning the movement of farmed or captive deer and elk into or through their States altogether.
We understand the commenters' concerns with regard to facilitating the interstate movement of farmed and captive cervids. For the reasons set forth below, however, we have decided that our CWD regulations will not preempt State and local laws and regulations that are more restrictive than our regulations.
First, while the herd certification program and the requirements for interstate movement of farmed and captive cervids in the July 2006 final rule, as amended by this document, are supported by the best available science, we recognize that the methods for mitigating the disease are evolving; our current methods are limited by the current state of scientific knowledge. As such, it is not possible to create a uniform set of proven mitigations for CWD. We have determined that, in such circumstances, States should be able to implement more restrictive laws and regulations if they determine such laws and regulations to be appropriate.
For example, one commenter stated that States should be able to impose more restrictive requirements or prohibitions on the interstate movement of farmed or captive cervids because there is currently no practical live-animal test validated for white-tailed deer, in contrast to other diseases mentioned in the March 2009 proposed rule, such as tuberculosis and brucellosis. The lack of a live-animal test creates uncertainty about the disease-free status of herds, or animals moved interstate from herds.
We agree the lack of a live-animal test for CWD creates uncertainty. Our approach to establishing a greater degree of certainty involves monitoring all herds enrolled in the CWD Herd Certification Program for at least 5 years before allowing animals from those herds to move interstate. This approach uses surveillance over time to increase the certainty that animals from a herd are low risk; 5 years of testing all cervids that die in a herd without finding a CWD-positive animal provides substantial assurance that CWD is not present in the herd. However, surveillance in the CWD Herd Certification Program does not provide the same level of certainty with respect to the disease status of an individual animal that a live-animal test could provide. Allowing States to impose more restrictive requirements than our requirements acknowledges that this uncertainty exists.
Another commenter stated that the industry in the commenter's State considers that State's CWD program to be a benchmark after which other States' programs could be modeled. The commenter stated that industry recognizes that a Federal rule is needed for interstate movement of registered animals, but expressed concern that not allowing the State to impose stricter requirements in some situations might not be appropriate.
We agree that States can serve as laboratories for different regulatory approaches. In the uncertain scientific environment surrounding CWD, we welcome any additional evidence we can gather about the effectiveness of regulatory approaches. Our decision to allow States to impose requirements that are more restrictive than our regulations will allow States to create and experiment with regulatory programs.
The other reason to allow States to develop and enforce laws and regulations that are more restrictive than our regulations is, as we noted above, inherent in the fact that our program objective has changed to reflect changes in conditions. When the objective of a program is to eliminate a disease, we impose requirements that are sufficient to achieve that objective, based on the best available science. If a State were to impose requirements that are more restrictive than our requirements in such a case, the additional State requirements would impede interstate commerce without advancing the objective of the program.
However, the objective of our regulations is now to assist in controlling CWD in farmed and captive cervids, rather than eliminating CWD in farmed and captive cervids. Eliminating CWD from farmed and captive cervids is not practical given the persistence of CWD in wild cervid populations and our current lack of knowledge about how CWD may be transmitted between wild cervid populations and farmed and captive cervids. Other gaps in our scientific knowledge we have about CWD also impair our ability to achieve eradication, including the lack of certainty regarding the disease status of individual live animals, the lack of knowledge regarding how the disease is transmitted between wild and farmed or captive cervid populations, and our lack of knowledge regarding effective cleaning and disinfection measures for premises on which CWD has been found. (For example, we do not know any cleaning and disinfection measures that allow us to effectively address the persistence of CWD in substrates.)
For these reasons, the CWD Herd Certification Program and our interstate movement restrictions are designed to prevent the spread of CWD, rather than to eliminate it. Allowing States to establish more restrictive laws and regulations on farmed and captive cervids recognizes that States may want to establish a higher level of protection against the disease than the Federal program is designed to provide.
In this final rule, we are also establishing provisions for the interstate transportation of farmed or captive cervids through States in response to comments. These provisions will preempt State and local laws and regulations in addition to or different
Specifically, 15 commenters asked us to address the issue of State bans or restrictions on the interstate movement of farmed or captive cervids through a State to another State of destination. The commenters stated that States should not have the right to ban interstate movement through a State to another State when the farmed or captive cervids being moved meet the entry requirements of the destination State. Ten of the commenters specifically recommended defining “entry” and “import” as being received into a specific State and excluding from State regulation any movement through States that are not receiving farmed or captive cervids.
We agree with these commenters that the regulations should provide for movement through a State, even if the State bans movement of farmed or captive cervids into the State. While, as noted, our scientific knowledge about CWD is limited, the scientific knowledge we have suggests that CWD is not highly infectious. In general, the movement of animals through a State without unloading poses a low risk of spreading CWD, and the regulations in part 81 ensure that the animals moved interstate will themselves present a low risk of being infected with CWD.
Not providing for movement through States that ban or further restrict the entry of farmed or captive deer, elk, or moose would also raise several issues. The rerouting required to avoid such States may make transportation of farmed or captive cervids economically unfeasible. Even if such transportation is economically feasible, the additional time necessary to traverse a lengthy route may raise animal health or welfare issues for the cervids being transported; the cervids would need regular water, feed, and rest, as required for all livestock under the Twenty-Eight Hour Law (49 U.S.C. 80502). Captive cervids that needed to be offloaded for such purposes would not be easy to confine and to reload onto a conveyance. Given the low risk associated with this type of movement, we have determined that it is appropriate to provide for the movement of farmed or captive cervids through States and localities whose laws or regulations on the movement of captive cervids are more restrictive than the regulations in part 81.
In this final rule, a new § 81.6 indicates that State and local laws and regulations that are more restrictive than the regulations in part 81 are not preempted by part 81, except for the regulations regarding interstate movement through a State to another State in § 81.5.
Section 81.5 sets out the following provisions for farmed or captive deer, elk, or moose to move through a State or locality whose laws or regulations are more restrictive than those in part 81 to another State:
• The farmed or captive deer, elk, or moose must be eligible to move interstate under § 81.3. This section requires animals that move interstate to be from Certified herds, to be from wild populations that have been documented to be low risk for CWD, or to be moved directly to slaughter. It also provides for movement of research animals under permit, which will only be issued if the movement authorized will not result in the interstate dissemination of CWD. Thus, movement of animals under § 81.3 already presents a low risk of spreading CWD, even without considering the low risk associated with the pathway of transportation through a State.
• The farmed or captive deer, elk, or moose must meet the entry requirements of the destination State listed on the certificate or permit accompanying the animal.
• Except in emergencies, the farmed or captive deer, elk, or moose must not be unloaded until their arrival at their destination. Emergencies might include a breakdown of the vehicle transporting the deer, elk, or moose or weather conditions that make it impossible or extremely unsafe for a vehicle to continue along its scheduled itinerary.
We recognize that the decision not to preempt State and local laws and regulations with respect to CWD, except for deer, elk, and moose that are moved through a State, represents a change in our preemption policy, as expressed in the July 2006 final rule and the March 2009 proposed rule. We believe the change is appropriate for the reasons discussed above. However, because the public has not previously had a chance to comment on this change in policy, we are requesting comment on our new policy, as well as the specific provisions of § 81.5. We will consider comments we receive during the comment period for this interim final rule. After the comment period closes, we will publish another document in the
Although we may make changes based on comments, the rest of the Background section of this document assumes that the preemption policy described above will continue to be effective.
Because the objective of the CWD program have changed from elimination of the disease in farmed and captive cervids to control of the spread of the disease, several changes we proposed in March 2009 are no longer necessary:
However, we continue to encourage States to conduct monitoring and surveillance for CWD in wildlife populations. Knowledge of the geographic distribution of CWD in wildlife that is generated through wildlife surveillance is valuable to both wildlife and domestic animal managers. The information helps both groups assess risk of animal movement and helps in other disease prevention and management planning.
In addition, for deer, elk, or moose captured from a wild population for interstate movement and release, the regulations in § 81.3(b) require the certificate accompanying those animals to document that the animals are from a source population that is low risk for CWD, based on a CWD surveillance program that is approved by the State Government of the receiving State and APHIS. States that want to facilitate such movement will need to have a CWD surveillance program in place for their wild populations.
In the past, APHIS has supported surveillance for CWD in wild cervid populations through cooperative agreements with State wildlife agencies and tribes. We hope that we will be able to continue to support wildlife surveillance. We anticipate that APHIS will receive flat or declining budgets for the next several years, which would likely substantially limit our support. Nonetheless, we will work with State wildlife agencies and tribes to develop more efficient and effective surveillance strategies for the future.
However, commenters presented information indicating that the 25-mile distance was not necessarily enough to mitigate the risk of exposure to CWD, given the distribution and variation in home ranges of wild deer, elk, and moose, meaning that the standard might not effectively mitigate whatever risk may exist. Given that the primary impetus for potentially denying the application for participation of a herd in proximity to known occurrences of CWD in wild herds was to support the other proximity provisions in the March 2009 proposed rule, and given the information presented by the commenters, we are not including this provision in the final rule. However, under this final rule, States may choose to address the risk associated with premises in areas in proximity to CWD cases or areas where CWD has become established by placing their own restrictions on the establishment of premises in such areas, based on local conditions.
Finally, one commenter opposed preemption and specifically stated that States should be allowed to require written approval from the State veterinarian for any consignment of deer, elk, or moose to enter the State before it is moved interstate from its premises of origin. Another commenter generally asked us to require the State agency overseeing captive cervids in the receiving State to be notified when captive cervids are moved to a State. Our decision to allow States to impose additional requirements on the entry of captive cervids beyond those in our regulations allows for States to keep such requirements in place, or to impose them, as they determine to be necessary.
Two commenters stated that the March 2009 proposed rule included various provisions for inspections and certification requirements that are duplicative of their State's rules and regulations. The commenters asked whether the APHIS requirements are in addition to State regulations or if the State's current practices would satisfy the requirements. The commenters expressed concern about the burden that could result if the APHIS requirements were being imposed in addition to State requirements.
Another commenter requested that APHIS consider exemptions from Federal requirements for States which, now or in the future, develop comprehensive, risk-based regulatory CWD policies pertaining to confined cervid populations.
Several States already enroll deer and elk herd owners in programs based on these principles. We believe that it is better to build a Federal program that recognizes State activities than to replace them with a strictly Federal program. Therefore, the July 2006 final rule allows APHIS to recognize State regulations and procedures as satisfying APHIS requirements. We believe the States that have or are developing CWD programs can readily incorporate our proposed minimum criteria with few or no changes to State programs.
Specifically, in § 55.23, paragraph (a) sets out the elements necessary for a State to have an Approved State CWD Herd Certification Program. This paragraph sets general standards but does not prescribe the means for meeting them. If a State's CWD program meets the minimum requirements in § 55.23(a), we do not impose any further requirements on the State. Thus, State practices can satisfy APHIS requirements under the regulations.
It is not necessary to exempt States that have or develop comprehensive, risk-based CWD regulatory policies from Federal requirements; such a regulatory policy would be recognized under § 55.23(a) as an Approved State CWD Herd Certification Program. An Approved State CWD Herd Certification Program allows herds in that State that reach Certified status to move their animals interstate. Under this final rule, any farmed or captive cervids moved interstate will have to come from an Approved CWD Herd Certification Program, with limited exceptions.
The July 2006 final rule included in §§ 55.1 and 81.1 a definition of
One commenter stated that approval for the animal identification tag in the commenter's State has been requested several times since 2008, without
Until the publication of this final rule, there has been no CWD Herd Certification Program in place in the regulations, and we have been concentrating on determining the appropriate objectives and provisions of the overall program. We plan to evaluate State animal identification for use as official identification as part of the CWD Herd Certification Program implementation process. We will reach out to these commenters to ensure that we are addressing their concerns, and we invite others who may have similar concerns to contact the person listed under
The definition of
Several commenters expressed concern that State-approved animal identification might not be recognized as official animal identification under the definition of
The proposed
The July 2006 final rule defined
• The State's two-letter postal abbreviation followed by the premises' assigned number; or
• A seven-character alphanumeric code, with the right-most character being a check digit. The check digit number is based upon the ISO 7064 Mod 36/37 check digit algorithm.
The definition of
In the March 2009 proposed rule, we proposed to amend this definition by, among other things, removing the option to use the State's two-letter postal abbreviation followed by the premises' assigned number as a PIN. Under the proposed rule, PINs issued after the effective date of a final rule following the March 2009 proposal would have had to consist of the seven-character alphanumeric code with the characteristics described above.
Four commenters raised concerns about this change. One stated that producers who use eartags numbered with a premises-based number system containing PINs with State two-letter postal abbreviations and unique identifiers can now purchase eartags from the company of their choice without the involvement of an accredited veterinarian. Under the proposed rule, the commenter stated, such purchases would have to involve an accredited veterinarian, which would make the system unnecessarily cumbersome.
Two commenters expressed concern that all currently used tags would need to be replaced. These commenters stated that the State identifier was preferable. One stated that the State authority issuing identifiers can more easily add to and update the system than the Federal Government can. The other stated that the State identifier can be tracked and updated better than a Federal identifier. A third commenter stated that, when State identifiers are used, purchasers can easily identify the State of origin of an animal, and stated that tracebacks are better handled by State veterinarians than by searching through a huge grouping of animals from all States.
It is important to note that the proposal would not have required any currently issued tags to be replaced; it only would have required that all new PINs conform to the seven-character alphanumeric standard, thus requiring newly issued official identification to reflect the new PINs. In addition, we do not agree that using the seven-character alphanumeric standard poses any difficulties for verification of origin, traceback, or modifications to the system; the seven-character alphanumeric standard has been in use for many years without encountering these problems. Finally, the changes we proposed would not have required producers to purchase tags from an accredited veterinarian.
However, we appreciate that some States may want the flexibility to continue using their PIN issuance system in the future. As long as PINs issued by States meet the other standards in the revised definition of
In the July 2006 final rule, paragraph (a) of § 55.22 sets out procedures and conditions for herd owner participation and enrollment in the Federal CWD Herd Certification Program. Paragraph (a)(1)(ii) sets out the procedures and conditions for enrollment of herds that are in a State that does not have an Approved State CWD Herd Certification Program.
Under paragraph (a)(1)(ii)(B), if APHIS determines that the herd owner has maintained the herd in a manner that substantially meets the conditions specified in § 55.23(b) for herd owners, the enrollment date will be the first day that the herd participated in such a program. However, in such cases, the enrollment date may not be set at a date more than 2 years prior to the date that APHIS approved enrollment of the herd. This type of constructed enrollment date will be unavailable for herds that
In the March 2009 proposed rule, recognizing the delays in implementing the CWD program, we proposed to grant an additional year of credit for herds that had been maintained in a manner that substantially meets the conditions specified in § 55.23(b) for herd owners, for a total of 3 years' credit.
Four commenters stated that we should allow for 5 years' credit to be granted to herds whose owners have maintained them in a manner that substantially meets the conditions specified in § 55.23(b). Doing so would allow those herds to enter the program in Certified status and thus be eligible to move interstate. One commenter stated that providing a maximum of 3 years' credit would essentially shut down the industry for 2 years and that States have written rules that provide adequate CWD surveillance status and disease control in their captive cervids, allowing for the interstate movement of animals with an extremely low risk of CWD.
Three commenters stated that providing only 3 years' credit for herd owner participation outside the context of an Approved State CWD Herd Certification Program discriminates against persons or farms that have a proactive approach to testing and recordkeeping but have a laggard or nonexistent CWD program in their States. These commenters stated that herds meeting the standards of the certification program for any time period should be enrolled in the Federal CWD Herd Certification Program on the date they began meeting such standards, as shown in accurate herd records.
We appreciate the efforts of herd owners who maintain their herds in a manner that substantially meets the conditions specified in § 55.23(b) outside the context of a State CWD program, and we realize that limiting credit for such efforts to 3 years will temporarily prevent the interstate movement of animals from such herds until the herds can achieve Certified status. However, as discussed in the June 2006 final rule, only State programs have the extensive infrastructure, enforcement mechanisms, and record systems that verify participation and support reasonable confidence that herds in these programs can fully meet the program requirements over long periods of time. (In response to the first commenter, if a State has put in place adequate rules for CWD surveillance and disease control, that State's CWD program would be eligible for recognition as an Approved State CWD Herd Certification Program under § 55.23(a), thus allowing participating herds to receive 5 years' credit.)
While individual herd owners may also devise or join non-State programs that meet the necessary animal identification, monitoring, and other requirements, and their compliance may be documented through herd records and animal records in various State and market records collections, it would be very difficult to establish with confidence that such herds comply with requirements over lengthy periods.
It should also be noted that herd owners who have been practicing CWD control and testing measures may not necessarily meet the criterion for granting credit that the herd has been maintained in a manner that substantially meets the conditions specified in § 55.23(b). We will individually review every application for enrollment credit under § 55.22(a)(1)(ii)(B) to determine whether credit should be granted.
We are making two changes to provisions involving enrollment dates in this final rule. In the July 2006 final rule, we provided in § 55.22(a)(1)(i) for herds to receive credit for having been enrolled in a State program that APHIS determines qualifies as an Approved State CWD Herd Certification Program. We indicated that such a “constructed enrollment date” would be unavailable for herds that applied to enroll 1 year after the effective date of the final rule.
However, such a determination would be contingent on a State applying for approval of its CWD program. If a herd participated in a CWD program that was eventually determined to qualify as an Approved State CWD Herd Certification Program, but that State did not apply to have its program approved within 1 year of the effective date of this rule, the herd owner would receive no credit for participation due to the State's inaction, despite the herd having been maintained consistent with the CWD Herd Certification Program. Accordingly, we are removing the provision in paragraph (a)(1)(i) that limited the availability of constructed enrollment dates. This will allow States to become approved at any time after the effective date of this final rule; herds enrolled and in good standing in their State program will maintain their State enrollment date in the Federal CWD Herd Certification Program provided they continue to meet our requirements.
Similarly, we are removing the provision limiting constructed enrollment dates in paragraph (a)(1)(ii)(B), which indicated that herds maintained in a manner that substantially meets the conditions specified in § 55.23(b) would receive credit for up to 3 years of program participation only if they apply to enroll within 1 year after the effective date of this final rule. There is no reason to deny a herd owner credit based on the date of enrollment if the herd has been maintained in a manner that substantially meets the conditions specified in § 55.23(b).
We are also switching the order of paragraph (a) of § 55.23, which discusses owner participation, and paragraph (b), which discusses State participation. As the provisions for owner participation discuss State participation, switching the order of these paragraphs will result in a more logical presentation.
In the July 2006 final rule, paragraph (a) of § 55.23 lists aspects of a CWD program that the Administrator will evaluate when determining whether a State CWD program qualifies as an Approved State CWD Herd Certification Program. Paragraph (a)(4) stated that the Administrator will evaluate whether the State has placed all known CWD-positive, CWD-exposed, and CWD-suspect animals and herds under movement restrictions, with movement of animals from them only for destruction or under permit. (Movement under permit could include research animal movement, as provided in § 81.3(d) of the July 2006 final rule, or movement from a breeding herd to a shooter facility.)
In the March 2009 proposed rule, we proposed to amend this paragraph to require that States allow no movement of animals into such herds. We stated that such movement affects the CWD indemnity program, which makes indemnity available for eligible animals based on the inventory at the time the movement restrictions are imposed. An increase in the size of a herd under restriction due to CWD also causes a corresponding increase in the program resources devoted to the herd, and in the amount of work for Federal and State representatives working with the herd. For instance, if animals from several additional herds are added to a CWD-exposed or CWD-suspect herd that is later found positive for CWD, those additional herds must also be evaluated during traceback as possible sources of CWD. Also, increasing the herd size potentially increases the total number of
Several commenters stated that owners of some CWD-positive, CWD-exposed, or CWD-suspect herds that are part of hunting operations have in the past added animals to their herds and need to continue adding animals in order to remain in business. These commenters stated that prohibiting movement of farmed or captive cervids to these farms would require these farms to breed all their animals, which in turn would require increasing the density of their cervid populations, to provide for both breeding cows and their male offspring. This would greatly increase the cost of doing business for these herds.
A few owners of such herds stated that they would be put out of business if they could not add animals to their herds. One expressed concern that meat producers might be affected by such a restriction as well.
Two commenters expressed concern that Certified herds might lose a valuable business opportunity if sales to herds with CWD-positive, CWD-exposed, and CWD-suspect animals were prohibited.
With respect to traceback, two commenters stated that epidemiologic investigations could be conducted from herds containing CWD-positive, CWD-exposed, or CWD-suspect animals in the same way that they are conducted to and from other herds.
With respect to transmission from the facility containing the CWD-positive, CWD-positive, CWD-exposed, or CWD-suspect animals, one commenter stated that State herd plans implemented at such facilities typically require double fences and double barriers designed to prevent contact between the farmed or captive cervids in the facility and wild cervids. Another commenter stated that the risk associated with escape of animals from a large herd containing CWD-positive, CWD-exposed, or CWD-suspect animals does not change when animals are added to that herd.
With respect to indemnity, three commenters suggested that animals introduced into herds containing CWD-positive, CWD-exposed, or CWD-suspect animals should not be eligible for indemnity. Another commenter suggested that we allow herds to apply for indemnity only within a certain timeframe following the identification of a CWD-positive, CWD-exposed, or CWD-suspect animal from the herd.
Based on these comments, we are not including this proposed change in this final rule. Our intent is to provide flexibility in the regulations to allow the operations described by commenters to remain economically viable. However, we note that, under this final rule, States will be allowed to restrict or prohibit the addition of animals to herds containing CWD-positive, CWD-exposed, or CWD-suspect animals. We also note that, when paying indemnity for a whole herd, we only make indemnity available for the animals that were part of the herd at the time we confirm the CWD diagnosis that leads us to pay indemnity for a herd.
We agree that epidemiologic investigations can be conducted from and to animals added to herds containing CWD-positive, CWD-exposed, or CWD-suspect animals, in the same way epidemiologic investigations are conducted in other circumstances. However, the owners of Certified herds need to be aware that selling animals to herds containing CWD-positive, CWD-exposed, or CWD-suspect animals (or selling to a third party who may sell to such herds) increases their risk of being linked to CWD-positive animals and herds. Owners of Certified herds that sell animals to herds containing such animals need to make sure that they have accurate, complete, and up-to-date inventories and records. Without such inventories and records, it will be difficult to determine with reasonable confidence whether a Certified herd was a source of infection, which could result in movement restrictions being placed on that herd and the suspension or loss of the herd's status in the CWD Herd Certification Program. We will work with herd owners and States to ensure that all herd owners are aware of the type of information we need to facilitate successful epidemiological investigations.
With respect to additions to herds containing CWD-positive, CWD-exposed, or CWD-suspect animals increasing the density of the herd and therefore increasing the risk of spreading CWD to neighboring or surrounding populations, we agree that there are mitigations available for this risk, such as the double fencing that the commenters cite. For herds that are enrolled in the CWD Herd Certification Program, we would require such mitigations to be contained in a herd plan. Again, under this final rule, States will have the option to require such mitigations when animals are moved into herds containing CWD-positive, CWD-exposed, or CWD-suspect animals. States can also ban such movement altogether.
In the July 2006 final rule, paragraph (b) of § 55.23 lists responsibilities of herd owners who enroll in the CWD Herd Certification Program. Paragraph (b)(4) describes requirements for herd recordkeeping and annual inventories. Among other things, paragraph (b)(4) requires the owner to allow an APHIS employee or State representative access to the premises and herd, upon request, to conduct an annual physical herd inventory with verification reconciling animals and identifications with the records maintained by the owner. The owner must present the entire herd for inspection under conditions where the APHIS employee or State representative can safely read all identification on the animals. The owner will be responsible for assembling, handling and restraining the animals and for all costs incurred to present the animals for inspection.
In response to comments on the July 2006 final rule, we proposed in March 2009 to make changes to the annual inventory requirements to address their practicality. The changes we proposed were intended to clarify our intention to conduct an actual physical inventory of assembled animals when an APHIS employee or State representative finds it to be needed for program purposes. However, an actual physical inventory is not always necessary.
We proposed to indicate that the APHIS employee or State representative may order either an inventory that consists of review of herd records with visual examination of an enclosed group of animals or a complete physical herd inventory with verification to reconcile all animals and identifications with the records maintained by the owner. In the latter case, we proposed to require the owner to present the entire herd for inspection under conditions where the APHIS employee, State representative, or accredited veterinarian can safely read all identification on the animals. The proposed rule indicated that inventory of a herd would be conducted no more frequently than once per year, unless an APHIS employee, State representative, or accredited veterinarian determines that more frequent inventories are needed based on indications that the herd may not be in compliance with CWD Herd Certification Program requirements.
Ten commenters opposed removing the requirement for an annual physical herd inventory. Some cited specific issues. Two cited past experience in inspecting farmed or captive cervid herds as indicating that, without annual physical inspections, it is difficult to ensure that herds are in compliance.
Another commenter stated generally that the physical inventory requirement will help to ensure that adequate records are maintained, which will be vital in doing any necessary trace when an outbreak of CWD in a captive cervid herd occurs.
Another commenter stated that, when two of the acceptable forms of unique identification that may be used include microchips and tattoos, there can be no substitute for handling the animals if their true identity is to be verified.
The provisions we proposed give APHIS employees and State representatives the ability to require an annual complete physical herd inventory. The proposed provisions simply provide for an inventory of records as another option if no changes in the circumstances of a captive cervid herd indicate that a complete physical herd inventory is necessary. If an inventory indicates that a specific herd is not complying fully with the requirements of the program, the proposed regulations allow for more frequent physical inventories, at the discretion of APHIS employees and State representatives.
We have determined that a review of herd records will be adequate for an annual inventory, assuming that the herd owner maintains adequate records and that there have been no major changes in the composition of the herd. In addition, three commenters stated that physical inventories impose a significant financial impact on producers, suggesting that, to the extent possible, complete physical herd inventories should be conducted no more often than necessary.
Under this final rule, States have the option of requiring more frequent physical inventories for all herds in their States.
One commenter stated that a complete physical herd inventory should be required only when there is sufficient reason to expect that poor records are being kept.
We disagree. Although poor recordkeeping would be one reason we might require a complete physical herd inventory, there are other reasons as well. For example, if the facility containing the herd had experienced a fence breach, we might conduct a physical inventory. Large movements of animals in or out of the herd may result in enough uncertainty with respect to recordkeeping to warrant a physical inventory. Finally, physical inventories should be performed at intervals of no more than 3 years in order to ensure that recordkeeping is accurate. There may be other reasons to perform physical inventories as well.
In the March 2009 proposed rule, we stated in the Background section that complete physical herd inventories would usually be several years apart; we did not propose to include any provisions regarding the frequency of physical inventories in the regulatory text. To communicate our expectations more clearly, we are adding in this final rule a requirement that a complete physical herd inventory be performed for all herds enrolled in the CWD Herd Certification Program no more than 3 years after the last complete physical herd inventory for the herd.
In the Background section of the proposed rule, we stated that a physical assembly would be required at the time a herd is enrolled in the Federal-State cooperative CWD program, in order to provide a reliable baseline record for the herd's participation. Several commenters asked questions regarding whether inventories or inspections required by States could satisfy the requirement for an initial complete physical herd inventory. Twelve commenters stated that an initial physical inventory should only be required for those herds entering the CWD program that do not have a baseline record already on file with their State regulatory agency. Another commenter stated that it seems redundant and costly to require a physical inventory if a herd is already enrolled in a State CWD program. Another commenter stated that the requirement for an initial physical inventory should apply to new breeders only and not to existing breeders. One commenter asked whether herds that are enrolled in a compliant State CWD Herd Certification Program but have never had a physical inventory need to have a physical inventory done retroactively.
In order to provide a reliable baseline record for the herd's participation, a herd on which a complete physical herd inventory had never been performed would need to undergo a physical inventory before beginning participation in the Federal CWD Herd Certification Program. However, we would accept a complete physical herd inventory performed by an APHIS employee, State representative, or accredited veterinarian not more than 1 year before the enrollment date of the herd as fulfilling the requirement for an initial physical inventory. Such inventories might be performed as part of an official herd test for tuberculosis or brucellosis, or as part of a State CWD Herd Certification Program.
We are making two changes related to this issue. To make our expectations clear, we are indicating in the regulations that a complete physical herd inventory must be performed at the time a herd enrolls in the CWD Herd Certification Program. We are also providing that APHIS may accept a complete physical herd inventory performed by an APHIS employee, State representative, or accredited veterinarian not more than 1 year before the herd's date of enrollment in the CWD Herd Certification Program as fulfilling the requirement for an initial inventory. We would not accept such an inventory if the inventory did not appear to provide an accurate and complete accounting of the animals in the herd, or if the composition of the herd had changed substantially since the inventory was performed (for example, with large additions to or sales from the herd).
One commenter asked whether inventories or inspections required by a State could satisfy the requirement for continuing inventories. In the commenter's State, unrestrained inventories are performed yearly with record verification.
We would accept a yearly State inventory of a herd in the Herd Certification Program as fulfilling this requirement, as it would be conducted by a State representative. The inventory would have to meet the other requirements of paragraph (b)(4). We will work with States as we implement the CWD Herd Certification Program to establish inventory procedures, where necessary. However, an inventory consisting of record verification would not satisfy the requirements for a physical inventory at the time of enrollment and once every 3 years thereafter.
In the Background section of the proposed rule, we stated that the proposed changes should also make it possible in many cases to plan the timing of a physical assembly of a cervid herd for inventory so that it is coordinated with testing for brucellosis and tuberculosis. We noted that, to maintain a herd's Certified status with regard to brucellosis, or its Accredited status with regard to tuberculosis, the herd must be retested for the relevant disease every 21 to 27 months under current brucellosis and tuberculosis regulations.
Several commenters emphasized that, to have a successful program with producer buy-in, complete physical herd inventories should coincide with other industry animal health programs.
The commenters are correct that the frequency at which captive cervid herds that are accredited for tuberculosis are tested for that disease is 33 to 39 months, under § 77.35(d). However, in the Uniform Methods and Rules for brucellosis in cervids,
Commenters raised other concerns with respect to timing. Several commenters stated that whole herd assembly for handling should be consistent and within the established husbandry timeframe practiced by the industry for the species in question. One commenter stated that physical inventories inspections should be limited to those periods where animal health will not be endangered, e.g., cows in late stage of pregnancy and bulls in velvet or hard antler. Two commenters stated that complete physical herd inventories could be done during weaning and/or breeding. One commenter noted generally that there are many times during a year that it would be dangerous to handle deer.
We agree with these commenters that these issues should be taken into account when scheduling a complete physical herd inventory. We already take these issues into account when scheduling whole-herd tests for brucellosis and tuberculosis in farmed or captive cervids. In all cases, when scheduling a complete physical herd inventory, we will work with the owner of the herd to find a time that takes all relevant factors into account. We are providing a 3-year span in which a physical inventory may be conducted in order to allow for such flexibility of scheduling.
Several commenters stated that, if herd records indicate that a specific number of animals are in a pen, and the inspector can verify that amount, there should be no need for a visual inspection of each tag.
We disagree. Records could indicate that the number of animals in a pen was correct, but without verifying that the identification on each animal matches that reflected in the records, we cannot be certain that the animals in the pen are the same as the animals in the records. Another commenter noted that most forms of identification will not be readable from any distance unless the animal is restrained, which makes a hands-on physical inventory necessary.
The regulations in this final rule do provide for an inventory based on records, but we will need to conduct complete physical herd inventories occasionally, for the reasons discussed earlier.
Several commenters stated that whole herd inventories should be conducted during routine herd health procedures. If APHIS or another agency orders a physical inventory, these commenters stated, then APHIS or the ordering agency should be responsible for the costs, risks, and animal losses associated with handling the animals in the herd.
As discussed earlier, we will make every effort to conduct complete physical herd inventories at times coincident with whole-herd testing or other times when the herd is being restrained for another purpose. However, we will not guarantee that all complete physical herd inventories will be conducted at such times; when there are reasons to suspect that recordkeeping is deficient, for example, we may need to conduct a complete physical herd inventory in order to provide assurance that the herd is in compliance with the CWD Herd Certification Program. In that case, owners will be responsible for all costs incurred to present the animals for inspection, a provision of the July 2006 final rule that we did not propose to change in March 2009. The CWD Herd Certification Program is a voluntary program for herd owners who wish to avail themselves of the opportunity presented by the program to demonstrate that the animals in their herds are low-risk for CWD. It is not appropriate to pay costs of participation in this voluntary program.
We note that keeping accurate, complete, and up-to-date records will make APHIS employees more confident that an inventory conducted by reviewing records, as opposed to a physical inventory, may be sufficient to fulfill the yearly inventory requirement.
Several commenters stated that the frequency of complete physical herd inventories must be consistent with animal health programs for other species, and that currently there is no annual herd inventory required for cattle herds in the tuberculosis or brucellosis programs.
For the other programs to which the commenters refer, complete physical herd inventories are conducted at the time the whole-herd test is conducted. As discussed in this document, we plan to schedule complete physical herd inventories so that they coincide with other occasions when the herd is assembled, such as whole-herd tests for tuberculosis and brucellosis. However, unlike brucellosis and tuberculosis, there is no approved ante-mortem test for CWD, meaning that we cannot use testing to determine the health status of individual animals when they are moved interstate. Instead, we establish that animals in a herd are at low risk of being infected with CWD through surveillance over time. As the animals' low-risk status is thus tied to their membership in a herd that has undergone 5 years of surveillance without finding CWD, an annual inventory of the herd's records is necessary to validate those records. We note that the records inventory should be much less labor- and time-intensive than the physical herd inventory.
We also proposed to amend paragraph (b)(4) to include accredited veterinarians as people who can conduct a herd inventory, along with APHIS employees and State representatives. The July 2006 final rule allows accredited veterinarians to perform many other Herd Certification Program functions; allowing them to conduct inventories would be consistent with the rest of the program.
One commenter stated that States should be able to specify when and under what conditions accredited veterinarians are approved to conduct inventories. The commenter's State requires that a regulatory veterinarian conduct the first inventory; accredited veterinarians can conduct subsequent inventories.
Under this final rule, States are free to put in place requirements regarding when an accredited veterinarian is allowed to conduct a herd inventory, such as the one the commenter describes.
Several commenters expressed concern that the proposed rule did not prevent an accredited veterinarian from inventorying his or her own herd. Some of these commenters also stated that accredited veterinarians should not be able to issue certificates for the movement of animals from their own herds, as allowed by the July 2006 final rule under § 81.4.
Another commenter stated that accredited veterinarians should not be allowed to inspect their own herds to
We disagree that such provisions are necessary for the regulations governing the CWD Herd Certification Program. Accredited veterinarians routinely perform accredited duties on their own animals in other Veterinary Services programs. Under our regulations in 9 CFR part 161, to maintain their accreditation, accredited veterinarians must comply with the standards for accredited veterinarian duties in § 161.4. If an accredited veterinarian conducted an irregular inventory of his or her own cervid herd, we would suspend or revoke the accreditation of that veterinarian. Although our experience indicates that the commenters' concerns are misplaced, nonetheless, under this final rule, States are free to impose restrictions on what duties an accredited veterinarian performs on his or her own animals in the State's CWD program should they choose to.
One commenter requested that we add a definition of
We concur that providing such a definition would improve the clarity of the regulations, particularly when other, similar parts in subchapters B and C include such a definition. Accordingly, we are adding a definition of
One commenter stated that the annual inspection of captive cervid facilities should include participation from wildlife professionals as well as accredited veterinarians.
Wildlife professionals could conduct inventories if they were State representatives with authority over farmed or captive cervids and involved in the oversight of the CWD Herd Certification Program. We note that the commenter is a representative of a State in which the wildlife authority has jurisdiction over farmed and captive cervids, so it is likely that, in this commenter's State, wildlife professionals would conduct or assist in inventories.
One commenter recommended that we propose common inventory datasheets, allowing for States to design their own as localized issues may require some reasonable modifications.
The regulations in paragraph (b)(4) of § 55.23 already state the information that is required for an inventory: The age and sex of each animal, the date of acquisition and source of each animal that was not born into the herd, the date of disposal and destination of any animal removed from the herd, and all individual identification numbers (from tags, tattoos, electronic implants, etc.) associated with each animal. Under paragraph (a)(10) of § 55.23, States are required to maintain this information in a State database, pending the creation of the CWD National Database administered by APHIS.
In this final rule, we are amending the list of information required for each animal to include the species of the animal. This information will be useful in conducting inventories and confirming the accuracy of herd records.
One commenter noted that, in hunting preserves, there is no way possible to assemble the animals for inventory because they are lost in many acres of woodland, and there is no way to track births inside of a hunting preserve. The commenter stated that these premises should be exempt from the inventory requirements, as the animals never leave the preserve alive anyway.
Participation in the voluntary CWD Herd Certification Program will require maintenance of accurate, complete, and up-to-date herd records, and verifying those records when necessary. Such records are essential to allow a herd owner to demonstrate that animals in the herd are low risk for CWD. As discussed earlier, the CWD Herd Certification Program establishes that animals are low risk through surveillance over time, making it crucial that we know which animals are included in the surveillance. Herd owners should consider whether they can comply with the requirements of the CWD Herd Certification Program before applying to enroll in the program.
One commenter stated that the regulations should require an adequate review of facility maintenance, animal health, and regulatory compliance during the nonphysical inventory.
We do not believe it is necessary to indicate in the regulations that such a review will take place. APHIS employees and State representatives will evaluate these facility conditions during inventories, as well as at other times. If we discover that the requirements of the regulations are not being complied with, we will take appropriate action.
In the July 2006 final rule, § 55.24 sets out provisions for determining the status of a herd of farmed or captive cervids enrolled in the CWD Herd Certification Program. Paragraph (c)(1) provides for an owner to appeal cancellation of enrollment or suspension or loss of herd status. We proposed to amend paragraph (c)(1) to provide a process by which herd owners can appeal the designation of an animal as CWD-positive, based on DNA test results.
Several commenters stated that any process for confirmatory DNA testing should include not just the current owner of an animal but also the original owner of the animal, if any. Some commenters stated that, in the event of a traceback, original owners should be allowed to submit their own samples. Two commenters stated that many herd owners conduct DNA testing on their animals at birth, allowing for the use of these records. Commenters also stated generally that many herd owners already have their animals' DNA profiled or recorded in a registry, meaning the confirmatory DNA testing process could make use of this information. Two commenters stated that owners should be allowed to keep DNA samples of animals they have sold for use in confirmatory DNA testing.
Other commenters stated that tissue for DNA testing should be required to accompany all samples sent for CWD testing, to protect previous owners who cannot submit tissues when animals are tested but who will be implicated in the event of a positive CWD test result.
We understand the concerns of the commenters that previous owners of an animal may be implicated in a traceback resulting from a CWD-positive animal, since such implication may lead to the suspension or loss of a herd's CWD status. However, the goal of the confirmatory DNA testing provisions is only to verify that the sample tested is a match for a particular animal.
The recordkeeping requirements in the regulations, if followed, will allow us to conduct tracebacks in the event of a positive CWD test result. As discussed earlier, we require an annual inventory in part to ensure that we can conduct an appropriate traceback.
Our regulations do not prevent owners of animals from retaining DNA samples of animals they sell. Sellers of animals are also free to contract with their buyers to provide that the buyers will submit a DNA sample for confirmatory testing if the animal is tested for CWD.
As discussed in the proposed rule, we have added the option of confirmatory DNA testing in response to commenters. However, we should note that we currently maintain rigorous chain-of-custody procedures for samples that are submitted for CWD testing, and we will continue to maintain these procedures
We stated that our guidance on confirmatory DNA testing would allow an owner to reserve the option for confirmatory DNA testing by informing the Federal or State representative or accredited veterinarian who collects the tissues. To allow for later confirmatory DNA testing, we proposed that the person collecting the tissues would also collect from the animal some somatic tissue that contains an official identification device, along with the tissue samples routinely collected for CWD testing (brain stem, lymph nodes, etc.). Submitting tissues attached to an official identification device establishes a reliable chain of custody that allows later DNA tests to be compared to a tissue sample that verifiably comes from the owner's animal in question.
One commenter stated that the requirement to maintain an official identification device with every DNA sample is an absurd requirement designed to impede confirmatory activities, particularly if the samples are held by an independent third party. The commenter stated that APHIS itself does not require samples to be accompanied by official identification. Another commenter stated that, if an accredited veterinarian is submitting all samples, there should be no need to have tissue attached to the official identification.
The official identification device is necessary in order to ensure that there is an incontestable association between the tissue whose DNA is tested and the animal being tested. Without official identification attached to the tissue being tested, both APHIS and the owner would rely on APHIS' chain-of-custody processes to ensure that the identity of the animal is associated properly with the DNA test results of the tissue sample.
As discussed earlier, we are confident that our chain-of-custody processes are effective. However, as a request for confirmatory DNA testing indicates that the owner wants additional assurance regarding the effectiveness of those processes (including the submission of samples by an accredited veterinarian), it would not make sense to rely on that chain of custody for confirmatory DNA testing as well.
We discuss other comments related to third parties conducting CWD tests and holding samples later under this heading.
Several commenters expressed concern regarding the requirement to include somatic tissue with an official identification device. These commenters stated that it would be difficult to fulfill such a requirement, especially for male animals, where taxidermy work requires the head, shoulder, and neck areas to be left intact for the mounting process. In the trophy market, a missing piece of ear would devalue the animal. These commenters also stated that the requirement for tissue to be attached to the official identification is not practical when a microchip is the official identification device.
As explained earlier, we need an official identification device to be attached to the somatic tissue in order to establish an incontestable link between the two. The confirmatory DNA testing process is optional for owners. If owners believe that supplying the tissue necessary to conduct confirmatory DNA testing will result in an economically unacceptable devaluation of their animals, they should not choose to use this optional process.
Microchips that are used as official identification devices are designed so that some tissue adheres to the microchip. This is to prevent a person from moving an official identification microchip from one animal to another. The somatic tissue that adheres to such microchips when removed from the animal will be usable in our confirmatory DNA testing process.
As an alternative to providing somatic tissue with official identification attached, several commenters suggested that accredited veterinarians collect DNA samples for each animal during the complete physical herd inventory and store them until the animals are tested for CWD. Some of these commenters stated that such samples should be held by a third party.
Our program resources are not sufficient to allow us to build or lease space in which to store sample tissue for DNA testing for each farmed or captive cervid that is identified in a complete physical herd inventory, or to contract for such storage. In any case, using DNA samples stored by APHIS or a third party for confirmatory testing would create chain-of-custody issues, rather than resolve them.
Several commenters stated that a neutral third party should maintain the tissue to be used for confirmatory DNA testing.
Most CWD samples are tested by third-party laboratories, either State or university laboratories. These third-party laboratories are approved to conduct CWD testing under § 55.8(d). We audit third-party laboratories to make sure they comply with the standards set out in § 55.8(d).
If an owner decides that DNA testing is necessary to confirm the identity of the animal that tested positive for CWD, tissue attached to an official identification device would be used for the testing, to ensure that the brain or lymph node sample that tests positive for CWD has the same DNA as the tissue attached to the official identification device. The sample used for confirmatory DNA testing would accompany the sample of brain and lymph node tested for CWD to ensure that chain of custody is not broken.
The National Veterinary Services Laboratories (NVSL) is the only laboratory authorized to confirm a CWD-positive test result from a third-party laboratory, so any tissue to be used for confirmatory DNA testing for an animal that tested positive for CWD would have to accompany the suspect sample to NVSL from the third-party laboratory, in order to maintain chain of custody. We are planning to conduct the optional confirmatory DNA testing at NVSL or at a third-party laboratory authorized to perform such testing. The sample for CWD testing will be accompanied by the tissue for confirmatory DNA testing at all times. Therefore, the involvement of a neutral third party is not necessary and would in fact increase complications in maintaining chain of custody.
One commenter recommended that the cost of DNA testing be borne initially by APHIS, to show that positive tests truly came from the animals for which the positive test results were reported. If the association of the animal with the positive test results is confirmed, the commenter recommended, the owner's indemnity would be reduced by the cost of the testing. If the association is not confirmed, the animal would no longer be a CWD suspect and APHIS should be held responsible for all costs associated with such confirmatory testing and herd disruption. This commenter also stated that confirmatory DNA testing should be performed on all CWD-positive cervids, so as to remove the onus of possible Government error.
The commenter's recommendations are impractical in several respects. Not all herds in which animals are diagnosed as CWD-positive are subsequently depopulated, as discussed earlier in this document under the heading “Movement of Animals into CWD-Positive, CWD-Exposed, and CWD-Suspect Herds.” A CWD diagnosis in those herds would not result in the payment of indemnity, meaning that we could not recover the costs of
Confirmatory DNA testing is an optional service we proposed to provide, based on the requests of commenters, only when herd owners request the service. We are confident that our chain-of-custody processes are effective. We do not believe it is an appropriate use of APHIS' limited resources to pay for confirmatory DNA testing. As noted earlier, the CWD Herd Certification Program is a voluntary program for herd owners who wish to avail themselves of the opportunity presented by the program to demonstrate that the animals in their herds are low-risk for CWD. It is not appropriate to pay any of the costs of participation in this voluntary program, such as costs associated with herd disruption. In any case, disruption in the circumstances the commenter cites would be temporary, as the herd's status would be restored after the error was found.
One commenter stated that allowing for confirmatory DNA testing would be contrary to current accepted procedures that allow for the immediate depopulation of herds in the event of a serious livestock disease outbreak. The commenter stated that delays inherent in DNA retesting potentially allow for continued disease exposure both to cohort animals, but also the continued contamination of the environment; in addition, the longer depopulation is delayed, the greater the risk that animals may escape or be illegally moved.
The available scientific evidence indicates that CWD is not an acute infectious disease; typically, by the time it is diagnosed in an animal, the disease has been present on a premises for a year or more. In addition, the confirmatory DNA testing is not expected to take more than a few days. Accordingly, we have determined that the risks the commenter identifies with respect to disease spread are unlikely. As the commenter notes, any movement from a herd in which an animal has been identified as CWD-positive would be illegal; we work with our State counterparts to ensure effective enforcement of this requirement. We are making no changes in response to this comment.
However, we are making two changes to the proposed protocol in this final rule. As proposed, the protocol indicated that a Federal or State veterinarian or accredited veterinarian would collect the tissue for testing. However, we do not plan to require that a veterinarian collect samples for CWD testing, so it would be inappropriate to require that a veterinarian also collect tissue for DNA testing. Therefore, we are removing the references in the proposed rule to the persons who can collect the samples. In addition, we are clarifying that the tissue tested for comparison to a CWD sample must have been collected from the same animal.
In the July 2006 final rule, part 81 contains restrictions on the interstate movement of farmed or captive deer, elk, and moose that are designed to prevent the spread of CWD. Paragraph (a) of § 81.3 contains general restrictions on the interstate movement of deer, elk, and moose in the CWD Herd Certification Program. Under the July 2006 final rule, during its first year of implementation, cervids would be allowed to move interstate if they have been in an approved CWD Herd Certification program, and thus subject to monitoring for CWD and other requirements, for at least 1 year. The CWD final rule increased this length-of-time requirement in succeeding years of implementation, so the time animals would have had to be in a herd certification program in order to move interstate gradually increased to 2 years, then 3, then 4, then 5 years.
In response to the petitions and many comments we received on the petitions, and based on a review of the available scientific evidence regarding the range of incubation periods for CWD, we proposed to remove the gradual escalation of the length-of-time requirement for farmed or captive deer, elk, or moose moved interstate. We instead proposed to require farmed or captive deer, elk, or moose moved interstate to be from herds that have had at least 5 years' monitoring in the CWD Herd Certification Program and have achieved Certified status. We stated that this requirement is based on our interpretation of currently available research, and we may propose to modify it in the future if additional research provides a basis for doing so.
One commenter stated that the 5-year monitoring period seems reasonable at this time, but there should be flexibility to immediately extend that period should science dictate such an extension is warranted. Another commenter stated that any regulation, Federal or State, should allow for rapid modification of such a requirement as new scientific information becomes available.
We agree. If the scientific evidence regarding the range of incubation periods for CWD advances and indicates that the 5-year monitoring requirement is either longer than necessary or not long enough, we will promptly propose appropriate changes to the regulations.
One commenter supported the 5-year monitoring requirement, but stated that there needs to be a way a new farmer can immediately achieve Certified status by purchasing a new herd from a farm or farms that are certified 5 years or more.
The regulations in § 55.24, which govern herd status, provide for the creation of a herd in the manner the commenter describes. Specifically, paragraph (a) of § 55.24 states that when a herd is first enrolled in the CWD Herd Certification Program, if the herd is composed solely of animals obtained from herds already enrolled in the program, the newly enrolled herd will have the same status as the lowest status of any herd that provided animals for the new herd. Therefore, if a new farmer purchased only farmed or captive cervids from herds that have achieved Certified status, and if the new herd met the other requirements in part 55 for herd participation, that herd would enter the program at Certified status.
One commenter stated that, in 9 years of raising elk, no CWD cases have been found in his herds. The commenter currently has a small herd that was established in 2006. The commenter stated that he would like to begin selling breeding stock and hunting bulls to other ranches, but the new 5-year requirement would prevent his ranch and all other ranches from doing this.
As discussed in response to the previous comment, if the commenter's herd is composed solely of animals obtained from herds already enrolled in the CWD Herd Certification Program, he may be able to get credit for those animals' statuses that would allow him to reach Certified status and thus move his animals interstate. We believe that many cervid producers who rely on moving animals interstate for the success of their businesses have already participated in a State CWD herd certification and monitoring program for 5 years or longer, and thus would not be adversely affected by the adoption of a 5-year standard. In any case, in our review of the scientific evidence regarding the range of incubation periods for CWD, we determined that requiring 5 years of monitoring in order for animals in the CWD Herd Certification Program to move interstate
In a related change, we proposed to add two general requirements in a new § 81.3(a) for certification of all deer, elk, and moose moved interstate, not just those in the CWD Herd Certification Program. One requirement was that no deer, elk, or moose originating from a premises that was within 25 miles (40 km) of a federally or State-identified case of CWD in wild deer, elk, or moose, or within 25 miles (40 km) of an area where CWD has become established in wild deer, elk, or moose, as defined by APHIS and the State, could be moved into a State that did not accept such animals. We are not including this requirement in the final rule for reasons discussed in the section “Changes in the March 2009 Proposed Rule That Are Now Unnecessary.”
The other requirement, which we proposed to add as a new paragraph (a)(1), was that no farmed or captive deer, elk, or moose may be moved interstate from farmed or captive herds infected with CWD, or epidemiologically linked to herds infected with CWD within the past 5 years.
Several commenters asked us to clarify the meaning of the term “epidemiologically linked” in proposed paragraph (a)(1). Two commenters expressed specific concerns regarding the scenario of a Certified herd selling animals to another herd, following which CWD is discovered in the receiving herd; the commenters wanted to know whether the Certified source herd would qualify as “epidemiologically linked” in this case. Two other commenters asked whether, if an animal is linked through epidemiological investigation to a CWD-positive herd, but the animal in question is tested for CWD and found not to be CWD-positive, the herd containing that animal would be epidemiologically linked to the herd infected with CWD.
We understand the potential confusion associated with our use of the term “epidemiologically linked” in proposed § 81.3(a)(1). For herds in the CWD Herd Certification Program, we have a full description of how epidemiological linkages are investigated and how herd status may be suspended or lost in § 55.24(b), but our proposed requirement in paragraph (a)(1) would have applied to all deer, elk, and moose moved interstate.
In light of our not including the proposed proximity provisions in the final rule, we examined proposed paragraph (a)(1) and found it to be unnecessary. The regulations provide for the interstate movement of farmed or captive deer, elk, and moose in five circumstances. In each of these circumstances, it is unnecessary to require separately that the animal being moved interstate not be from a herd where CWD has been diagnosed in the past 5 years or that is epidemiologically linked to herds where CWD has been diagnosed in the past 5 years.
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We are making changes related to the movement of animals captured for interstate movement or release in this final rule. In the July 2006 final rule, the requirements for issuance of certificates for all captive cervids in § 81.4(a) included a requirement that the certificate include a statement that the animals are from a herd that has achieved Certified status in the CWD Herd Certification Program, and must provide the herd's program status; no exception was made for animals captured from wild populations for interstate movement and release. However, it is impossible to provide that information for such animals, which is why the regulations in § 81.3(b) include the alternative requirement to document the animals' source population as low risk for CWD. We are amending § 81.4 to remove the requirement for documentation of the captured wild animals' Certified status in the CWD program. We are also making minor editorial changes to § 81.3(b) to indicate that the certificate must state that the source population has been documented to be low risk for CWD, rather than indicating that the certificate itself must provide this documentation.
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Therefore, we are not including proposed paragraph (a)(1) in this final rule. Section 81.3 in this final rule resembles the section as it appeared in the July 2006 final rule, except that paragraph (a), the paragraph describing interstate movement restrictions for farmed or captive deer, elk, and moose in the CWD Herd Certification Program, now indicates that such animals must come from a herd that has achieved Certified status in accordance with § 55.24. We are also not including a provision we proposed to add in § 81.4 that would have required a certificate for the interstate movement of deer, elk, or moose to include a statement that the animal being moved interstate are not from farmed or captive herds infected with CWD, or epidemiologically linked to herds infected with CWD within the past 5 years.
In the July 2006 final rule, paragraph (a)(2) of § 81.3 requires a farmed or captive deer, elk, or moose that is moved interstate and that is from a herd in the CWD Herd Certification Program to be accompanied by a certificate issued in accordance with § 81.4 that identifies its herd of origin and its herd's CWD Herd Certification Program status, and states that it is not a CWD-positive, CWD-exposed, or CWD-suspect animal.
We proposed to change these requirements. Because we proposed to
One commenter asked whether fulfilling this requirement would necessitate a veterinary inspection prior to movement. If so, the commenter stated, then the requirement is extremely burdensome. The commenter's State requires a brand inspector to inspect all animals prior to movement, meaning that having a veterinarian conduct an additional inspection is unnecessary if the herd has been certified. The commenter stated that the brand inspector would easily recognize CWD symptoms.
Requiring a veterinarian to inspect animals moved interstate is standard in all APHIS disease programs, and a veterinary inspection for farmed or captive deer, elk, and moose moved interstate is essential to ensure that the animal being moved interstate is apparently healthy and meets the requirements of the regulations. Both State veterinarians and accredited veterinarians who perform this certification must comply with certain standards of practice and are accountable to APHIS. Allowing some other agency to inspect and certify animals for interstate movement would not provide the assurance that the requirement for a veterinary inspection does. (We note that the July 2006 final rule also required the certificate accompanying a farmed or captive deer, elk, or moose moved interstate to be issued by a Federal veterinarian, State veterinarian, or accredited veterinarian, as discussed in § 81.4, “Issuance of certificates.”)
Commenters on the March 2009 proposed rule raised several issues not related to the changes discussed in that document.
Some commenters stated that it was difficult to understand the full scope and content of the proposed CWD Herd Certification Program from the March 2009 proposed rule because the full text of the rule was not included. The commenters stated that they had raised concerns regarding aspects of the July 2006 final rule that were not addressed in the March 2009 proposed rule. The commenters stated that the incomplete text left uncertainty about other aspects of the program.
We developed the March 2009 proposed rule to address issues with respect to the July 2006 final rule that were raised in the petitions or in response to the petitions. Accordingly, the March 2009 proposed rule set out only the changes that we proposed to make to the July 2006 final rule. However, we understand that this could be confusing. To aid the reader, in this final rule we are setting out the entirety of the regulatory text in the July 2006 final rule, with the changes discussed in the March 2009 proposed rule and in this document. When this final rule becomes effective, the provisions in the regulatory text at the end of this document will be added to the Code of Federal Regulations. In addition, we are responding in this document to the comments we received on aspects of the July 2006 final rule that were not included in the March 2009 proposed rule, as well as other aspects of the regulations.
The regulations currently include in § 55.1 a definition of
One commenter stated that this definition permits the intrastate, and depending on proximity to a State border perhaps even the interstate, transportation of animals from one facility to another regardless of their status in the program.
Any deer, elk, or moose moved interstate must meet the requirements of part 81. If they are moved intrastate, they must meet applicable State requirements; Federal regulations do not restrict intrastate movement, although we do require States that participate in the CWD Herd Certification Program to have the authority to restrict intrastate movement of cervids. The definition of
The July 2006 final rule included a definition of
Several commenters stated that herd plans should not allow reintroduction of cervids into a facility previously inhabited by CWD-positive animals, given evidence about the persistence of CWD in the environment and the lack of validated methods for decontaminating facilities that have housed CWD-positive animals.
One commenter expressed concern about the threat a premises that has held CWD-positive animals poses to wild cervids. This commenter stated that fences should remain in place on CWD-positive farms until a scientifically proven method has been developed for decontaminating facilities. Another stated that any premises that has held a CWD-positive animal should be quarantined for 5 years after the herd is depopulated, with no livestock allowed on the premises, followed by a reevaluation of the land and any environmental risk factors.
We note that all herds that participate in the CWD Herd Certification Program are required to have perimeter fencing under § 55.23(b)(2). As discussed in the July 2006 final rule, the definition's language will allow a herd plan to prohibit cervids from a premises for an appropriate period based on the specific risks and conditions of the individual herd. Ongoing and future research may help resolve many questions about environmental transmission of CWD and establish reasonable standards for when it is safe to repopulate a previously contaminated premises.
We do not consider it necessary to require permanent fencing of premises that contained CWD-positive herds for the purposes of preventing the interstate spread of CWD through the movement of farmed or captive cervids. However, under this final rule, States may impose requirements that are more restrictive.
As discussed earlier in this document, in the July 2006 final rule, paragraph (a)(4) of § 55.23 requires States to place all known CWD-positive, CWD-exposed, and CWD-suspect animals and herds under movement restrictions, with movement of animals from them only for destruction or under permit.
One commenter stated that all CWD-positive herds should be immediately quarantined and automatically depopulated upon verification of CWD-positive test results from two USDA-approved laboratories, as well as any herds traced forward or backward from a CWD-positive herd. The commenter stated that all cervids in such herds and
We do not consider it necessary to immediately depopulate CWD-positive herds for the purpose of preventing the interstate spread of CWD through the movement of farmed or captive cervids. Animals from such herds will not be allowed to be moved interstate under this final rule, except directly to slaughter or under a research animal permit. We note that, under this final rule, States may require depopulation of CWD-positive and CWD-exposed herds.
In the July 2006 final rule, paragraph (b)(3) of § 55.23 requires herd owners participating in the CWD Herd Certification Program to make the carcasses of all animals that die (including animals killed on premises maintained for hunting and animals sent to slaughter) available for tissue sampling and testing in accordance with instructions from the APHIS or State representative.
One commenter asked us to consider herd plans that do not require 100 percent testing of all animals that die or are killed when developing the guidance for implementing the CWD regulations. The commenter stated that 100 percent compliance may not always be possible, and expressed concern that Certified herds would lose their status by failing to provide samples. Another commenter stated that the regulations need to provide allowances for when animals escape or other factors make it impossible to provide a sample.
Testing all animals that die for CWD is necessary to establish, through surveillance over time, that animals in a particular herd are low risk for CWD. However, the regulations in § 55.23(b)(3) do provide that, in cases where animals escape or disappear and thus are not available for tissue sampling and testing, an APHIS representative will investigate whether the unavailability of animals for testing constitutes a failure to comply with program requirements and will affect the herd's status in the CWD Herd Certification Program, meaning we have provided the appropriate degree of program discretion in cases where a herd owner finds it impossible to provide samples.
In this final rule, we are amending § 55.23(b)(3) to indicate that we will also investigate program compliance when the samples provided are of poor quality, thus making it impossible to test them for CWD. Providing samples of poor quality causes the same problems as not providing a sample, and we need to be able to test all animals that die in a herd that is enrolled in the CWD Herd Certification Program.
One commenter stated that the regulations should provide a maximum time limit within which carcasses must be tested. In the commenter's State, for example, all licensees must submit carcasses for testing within 48 hours of the cervid's death to ensure that our agency can collect acceptable tissue samples for laboratory testing.
APHIS and the States are responsible for collecting the sample, once the owner makes it available, and testing it. We do so in accordance with guidelines that ensure that we have usable samples. The regulations in § 55.23(b)(3) require herd owners to immediately report deaths of deer, elk, or moose 12 months of age or older, which will give us adequate time to collect and test samples.
One commenter stated that the July 2006 final rule does not prevent the owner from removing animal identification prior to making cervid carcasses available to the State for CWD testing. The commenter stated that, if tags are removed before testing, cervid carcasses cannot be accurately identified nor can the movement history of individual animals be determined.
The regulations in § 55.23(b)(1) require all animals in a herd that is participating in the CWD Herd Certification Program to be identified. Paragraph (b)(3) requires all reports of animals that die to include the identification numbers of the animals involved. Section 55.25 requires animals in the program to be identified with an electronic implant, flank tattoo, ear tattoo, tamper-resistant ear tag, or another device approved by APHIS. Such identification cannot be removed from the animal without leaving evidence that the identification has been removed, thus indicating noncompliance with the regulations. These requirements, taken together, address the commenter's concern.
Several commenters noted that, under § 55.24(a), Certified herds are not required to conduct slaughter surveillance and surveillance of animals killed in shooter operations. One commenter recommended that we require all animals that die to be tested for CWD in order to ensure that any CWD present in captive cervid facilities is detected.
Some commenters focused on shooter operations as a potential risk, stating that such facilities tend to be large, which creates more potential for ingress and egress of cervids, and are difficult to accurately inventory. These commenters stated that such circumstances make it even more important to maintain surveillance in those facilities.
Another commenter noted generally that there are data indicating that CWD prevalence is higher in adult male deer.
We agree that CWD can be difficult to detect even in infected animals. For example, in one herd that was depopulated in Minnesota, multiple elk that had shown no clinical signs of CWD turned out to be CWD-positive after testing. Animals in such a circumstance and in a Certified herd would not have been required to be tested for CWD under § 55.24(a). This indicates that we need to continue slaughter surveillance and surveillance of animals killed in shooter operations in order to provide additional certainty that Certified herds contain only animals that are low risk for CWD. Therefore, we are removing the provision in § 55.24(a) allowing Certified herds not to conduct slaughter surveillance and surveillance of animals killed in shooter operations.
We will, however, continue to evaluate the effectiveness of these regulations and will revisit this issue after the program has been established for some reasonable period of time. More scientific research may become available that guides our thinking on the most efficient, cost-effective forms of CWD surveillance.
With respect to the concerns specific to shooter operations, we note that, for herds in the CWD Herd Certification Program, herd premises must have perimeter fencing adequate to prevent ingress and egress of cervids under § 55.23(b)(2). The herd owner must also allow for an inventory, as described in § 55.23(b)(4). Herds that cannot meet these requirements would not be eligible for the program.
One commenter stated that the final rule requires testing only of cervids 16 months of age or older. The commenter stated that cervids are apparently susceptible to CWD at birth and CWD has been documented in cervids as young as 9 months of age. In the commenter's State, licensees are required to test all captive cervids 6
As mentioned earlier, our regulations require that herd owners report the deaths of all cervids 12 months of age or older, not 16 months, and make the carcasses of those animals available for tissue sampling and testing. As discussed in the July 2006 final rule, the 12-month standard is based on our best approximation of the point where the value of additional epidemiological information exceeds the costs to producers and to program administration of testing younger animals. We will continue to review this standard as we gain more experience with the CWD Herd Certification Program and as new scientific information becomes available.
One commenter stated that paragraph (b)(3) of § 55.23 in the July 2006 final rule identifies APHIS employees and State representatives as people who can collect CWD test samples. The commenter stated that there is no definition of a State representative. Facing large volumes of CWD test samples, the commenter's State has established a formal program to certify private-sector collectors to provide routine surveillance samples for CWD program herds. The commenter stated that this program has the full confidence of APHIS staff in the State and that the regulations should recognize the program by defining “State representative” as a designated individual trained by the State in addition to accredited veterinarians and State or Federal officials.
The commenter is mistaken about the requirements of paragraph (b)(3); they do not discuss sample collection or testing, but merely require the owner to notify an APHIS employee or State representative of animals that escape, disappear, or die, and to make the carcasses of animals that die available for tissue sampling and testing in accordance with instructions from the APHIS or State representative.
However, we will work out procedures for sample collection and testing with States that have Approved State CWD Herd Certification Programs under § 55.22(b). In general, we would require that any private-sector collectors of CWD samples operate within a structure that provides accountability to the State and APHIS, as the program in the commenter's State does.
It should also be noted that § 55.1 does contain a definition of
In the July 2006 final rule, paragraph (c) of § 55.24 provides that the Administrator may cancel enrollment after determining that the herd owner failed to comply with any requirements of § 55.24.
One commenter stated that the final rule does not include definitive actions or mechanisms to decertify captive herds if the owners fail to meet the program's requirements after they have been certified. These should include actions that will be taken if, for example, animals are not properly tagged, animals are not tested, fences are not maintained, or if the required records are incorrect, mishandled, or not provided.
We intended that paragraph (c) indicate that the Administrator may cancel enrollment after determining that the herd owner failed to comply with any requirements of subpart B in part 55. This would include failure to comply with the requirements the commenter mentioned, as well as failure to comply with herd plans and other important provisions of the CWD Herd Certification Program. Accordingly, this final rule corrects that provision of the regulations.
As the commenter implies, sometimes we may take actions short of cancellation in response to a failure to comply with the regulations. Because individual cases of failure to comply with the regulations will be different, we believe it is appropriate to make decisions on a case-by-case basis. However, with this change, we will make clear that the consequences of violations of the requirements can include cancellation of enrollment if the Administrator should determine that it is necessary and appropriate.
Paragraph (c) also provides that, in the event that a herd's enrollment is canceled, the herd owner may not reapply to enroll in the CWD Herd Certification Program for 5 years from the effective date of the cancellation. One commenter expressed concern that, because it takes 5 years for a herd to achieve Certified status, a herd owner whose enrollment was canceled would need 10 years to return a herd to Certified status. The commenter recommended allowing re-enrollment of canceled herds immediately.
We have reevaluated the provision and determined that the 5-year enrollment waiting period is not necessarily appropriate. While the animals from a herd whose enrollment has been canceled should not be moved interstate, it increases the strength of the CWD Herd Certification Program to have monitoring in place for those animals through the program. In addition, under the July 2006 final rule, after the 5-year waiting period is up, the owner of a herd whose enrollment is canceled could assemble a new herd composed of animals from Certified herds and thus be granted Certified status immediately, with no opportunity to monitor the owner's compliance before animals begin moving interstate from the herd.
To provide for monitoring of both types of herds, we are changing § 55.24(c) to indicate that any herd enrolled in the CWD Herd Certification Program by an owner whose herd's enrollment has been canceled may not reach Certified status until 5 years after the herd owner's new application for enrollment is approved by APHIS, regardless of the status of the animals of which the herd is composed. This change will provide for herds whose enrollment is canceled to immediately re-enter the program and thus be subject to monitoring. It will also ensure that newly assembled herds whose owners' enrollment was previously canceled are subject to thorough monitoring before animals from those herds can move interstate.
In the July 2006 final rule, § 55.25 set out requirements for animal identification for herds enrolled in the CWD Herd Certification Program. One commenter stated that the identification of individual cervids could be problematic, especially if animals have to be physically or chemically restrained. The commenter stated that animals would be put at serious risk of stress and injury, and identification could be cost-prohibitive if large quantities of immobilizing drugs are necessary. The commenter asked that we consider a redundant system of two industry-accepted herd identification methods, which may include ear notches, ear tattoos, ear tags, and transponders.
As discussed earlier, identification of animals in herds enrolled in the CWD Herd Certification Program is essential in order to allow for accurate inventory and tracking of the interstate movement of animals moved from enrolled herds. Without such information, we cannot conduct the surveillance and epidemiological investigations that are
In the July 2006 final rule, part 81 contained restrictions on the interstate movement of deer, elk, and moose. The July 2006 final rule included in § 81.1 a definition of
One commenter stated that all species in the family Cervidae should be included in the rule and in the CWD Herd Certification Program, stating that it is prudent to include all cervids until further research indicates that such deer cannot be infected with or spread CWD.
We have not expanded coverage to genera in which no species has demonstrated susceptibility via natural routes of transmission. To do so would extend the requirements of this rule without a sound basis, unnecessarily increasing the burden on regulated parties, especially zoos with large and varied animal collections. We are prepared to extend the definition in the future if new research demonstrates additional species in other genera are susceptible to CWD by natural routes of transmission. For example, we made a change in the July 2006 final rule to add moose to the animals covered by the regulations.
One commenter asked why all deer, elk, and moose herds need to be enrolled in the CWD program in order to move interstate when only a limited number of cervid species within those respective genera have been identified as being CWD susceptible.
As discussed in the July 2006 final rule, the definition of
One commenter suggested that we include in § 81.1 a definition of
The regulations in § 81.4(a) describe in detail the information required on certificates issued for interstate movement in accordance with part 81. The definition of
In the July 2006 final rule, § 81.3 contains general restrictions on the interstate movement of deer, elk, and moose. Paragraph (b) of § 81.3 contains restrictions on the interstate movement of captive deer, elk, or moose that are captured from a wild population for interstate movement and release. Such animals must have two forms of animal identification, one of which is official animal identification, and a certificate accompanying the animal must document the source population to be low risk for CWD, based on a CWD surveillance program that is approved by the State Government of the receiving State and by APHIS.
Several commenters expressed concerns about these provisions. These commenters largely stated that the interstate movement of animals from wild populations should be subject to the same requirements as the interstate movement of animals from farmed or captive herds. Some commenters stated that captive animals are more thoroughly and continually monitored and restricted in their movement, and the percentage of infection with CWD in wildlife is much higher than in captive cervids. Another commenter noted that State fish and wildlife agencies may lack the funding and manpower necessary to conduct surveillance, meaning that some States may not be able to monitor the animals once they are released in the destination State.
The requirements for translocation are minimum requirements intended to regulate a practice that has been occurring. Without the provisions in § 81.3(b), there would have been no Federal CWD-related restrictions on the interstate movement of such animals. As one commenter pointed out, translocation can spread CWD; therefore, we determined that it was appropriate to put in place some restrictions on this movement.
We do not consider it practical to make the interstate movement of animals from wild populations subject to the same requirements as the interstate movement of animals from farmed or captive herds. Animals moved interstate from farmed or captive herds must come from a Certified herd, meaning they have been inventoried and monitored for 5 years to determine that they are low risk for CWD. It would be impossible to monitor wild animals in the same way we monitor farmed or captive animals. We note that, under this final rule, any State will be able to further restrict, or prohibit, the movement of animals captured from wild populations into the State.
As discussed earlier in this document, we encourage States to continue to perform surveillance in wild populations, both to facilitate the interstate movement of animals from wild populations and to understand the presence of CWD in their States generally.
In the July 2006 final rule, paragraph (c) of § 81.3 contained requirements for the interstate movement of deer, elk, and moose to slaughter. Two commenters asked that States be allowed to place additional requirements on such movement; one asked for a requirement that States be notified of such movement, and another asked that States be allowed to require a permit to ensure that the animals are moved directly to a slaughter facility.
Under this final rule, States can impose both of these additional requirements, as well as any other additional requirements they determine to be necessary, on movement to slaughter.
Some commenters asked questions regarding participation in the program. One requested that all nonsusceptible species be permitted to participate in the CWD Herd Certification Program on a voluntary basis, as movement restrictions imposed by States have had economic impacts on industry. If this change was made, the commenter asked that visible identification not be required for reindeer used for exhibition purposes. Another asked why reindeer are not included in the indemnity provisions in part 55.
We did not provide for the participation of species not known to be susceptible to CWD in the CWD Herd Certification Program because their interstate movement does not pose a risk of spreading CWD. Under this final rule, States will continue to be free to
We recognize that the regulations may have created some confusion on this point. We published an interim rule in the
Accordingly, this final rule amends the definition of
The February 2002 interim rule also defined
Two commenters expressed concern that the July 2006 final rule and the March 2009 proposed rule did not include specific details on how the CWD Herd Certification Program will operate. One stated that the rule should refer to a document that specifies the proper management of captive herds. Both of these commenters expressed specific concern about the lack of information about sample collection and testing.
Another commenter asked that we provide detailed information on how infected herds will be dealt with, i.e., quarantine and testing, depopulation, cleaning and disinfection, and fence maintenance requirements.
The optimal methods for most specific aspects of the CWD Herd Certification Program will vary among States. For States that already have CWD programs, we will review their specific methods and determine whether they are adequate to meet the performance standards set out in § 55.23(a). We will also develop a program standards document that will provide detailed guidance on the implementation of and compliance with the regulations, including sample collection and testing and the actions taken when a herd is quarantined. This approach gives States and herd owners flexibility to achieve performance-based standards and will allow us to update the guidance whenever it becomes necessary. For example, in the future, new scientific evidence about CWD may indicate that different testing or cleaning and disinfection methods are appropriate; we will update our guidance if such evidence becomes available.
With respect to sample collection and testing, these activities will be overseen by APHIS employees and State representatives. We will have systems in place to ensure that people who collect samples are performing these activities correctly. Standards for approval of CWD testing laboratories are already found in § 55.8(d).
One commenter expressed concern about zoos' continued ability to hold and transport deer, elk, and moose for the purposes of public display, outreach education, and cooperative breeding programs. The commenter stated that the proposed rule is specific to the deer, elk, and moose farming community and does not address the specific needs and unique circumstances of the accredited zoo community. The commenter proposed that a method be developed to allow the movement of captive deer, elk, and moose by and between zoos that are accredited by the Association of Zoos and Aquariums, based on that association's guidelines for CWD surveillance in captive cervids in zoos.
The regulations in § 81.3(e) provide for the Administrator to issue a permit for the interstate movement of captive deer, elk, or moose in cases where the Administrator determines that adequate survey and mitigation procedures are in place to prevent dissemination of CWD. If a zoo presents evidence establishing that its survey and mitigation procedures are adequate to prevent dissemination of CWD, we will allow the interstate movement of animals from that zoo. We plan to work with zoos on how such movement might occur, and we may develop a proposal for stakeholder consideration to establish a zoo movement protocol in the future.
We note that, as this final rule does not preempt State laws and regulations that are more restrictive than our regulations, the interstate movement of captive deer, elk, and moose between zoos may be subject to additional State restrictions or prohibitions.
One commenter stated that the interstate movement of deer body parts should be restricted so that hunted deer parts from areas where CWD is endemic do not enter nonendemic areas.
The movement of deer parts in interstate commerce for human or animal consumption is regulated by the Food and Drug Administration. States may also have restrictions on the entry of deer parts and products.
One commenter, noting that we stated in the July 2006 final rule that there exists no live animal test for CWD, stated that there are two live-animal tests available: Tonsillar and rectal biopsies. The commenter stated that the tests are currently not recognized by all government entities, but could be a beneficial tool for research and whole herd surveillance. The commenter also recommended that we require all deer, elk, and moose moved interstate to have a live-animal test performed at least 30 days before transport. Two commenters stated that the regulations should take into account the possibility of an accepted live-animal test becoming available.
These tests have not yet been determined to be effective at detecting CWD in live animals, and thus we do not recognize them as official tests for use in the CWD Herd Certification Program. We certainly encourage research into methods for live-animal CWD detection. If and when an official live-animal test becomes available, we will amend the regulations to take its availability into account.
One commenter encouraged us to work with the U.S. Department of the Interior to develop disease eradication plans in U.S. wildlife, since it is obvious that domestic animal diseases, such as brucellosis in bison and elk, bovine tuberculosis in deer and elk, CWD in cervids, and scrapie in Big Horn sheep, can greatly impact wildlife and result in devastating economic loss to domestic livestock industries and business communities that depend on hunting for an economic base.
Wild deer and elk, as well as other wild animals, are State resources, unless they are on Federal land, in which case the Department of the Interior may be involved. We work with the States and with the Department of the Interior on research and mitigation development to help prevent disease transmission between wildlife and livestock.
Two commenters addressed importation of deer, elk, and moose. One stated that we should prohibit the importation of cervids from countries where CWD is present until those countries develop a herd monitoring and certification program that is equivalent to our program. The other stated that CWD-free countries are not likely to have an ongoing CWD surveillance program, meaning that it would be appropriate to allow the importation of cervids from CWD-free countries without requiring a herd surveillance program in the country of origin.
We restrict the importation of ruminants generally in 9 CFR part 93, Subpart D, which covers the importation of all ruminants. We plan to implement CWD-specific import requirements in the future; when we do, they will be equivalent to our requirements for interstate movement, in keeping with our commitments as a member of the World Trade Organization. Therefore, we agree with the first commenter. With respect to the second commenter's recommendation, one component of maintaining disease-free status is performing ongoing surveillance to confirm continued freedom from the disease, and we would require such surveillance for imported cervids.
In the July 2006 final rule, paragraph (b) of § 55.22 indicated that owners of farmed or captive deer, elk, or moose herds could apply to enroll in a Federal CWD Herd Certification Program if no State CWD Herd Certification program exists in the herd's State. Although we were prepared to establish such a program in 2006, changes in appropriated funds for the CWD program may make it impossible to do so in the future. We are amending paragraph (b) to indicate that the option of a Federal CWD Herd Certification Program will be subject to the availability of appropriated funds. If a Federal CWD Herd Certification Program cannot be made available to herd owners, they will have to participate in an Approved State CWD Herd Certification Program in order for their herds to achieve Certified status and thus be eligible to move interstate under part 81.
In the July 2006 final rule, paragraph (a)(10) of § 55.23 indicates that States are responsible for maintaining certain data in the CWD National Database administered by APHIS, or in a State database approved by the Administrator as compatible with the CWD National Database. However, references to the CWD National Database in §§ 55.25 and 81.2 do not also provide for the use of a State database that is compatible with the CWD National Database. Accordingly, we are amending those references to the CWD National Database to indicate that the required data may be found either in the CWD National Database or in an approved State database.
In this final rule, we are revising the definition of
In the July 2006 final rule, we revised the definition of
However, stating that two official tests are conducted could indicate to readers that two different types of official tests must be conducted in order for an animal to be determined to be CWD-positive, which is not correct; our intent was to indicate that there must be two positive results, which may be from the same type of test. The definition also does not indicate that NVSL is the confirmatory laboratory. The intent behind our changes was to indicate that an animal will be determined to be a CWD-positive animal only after an initial positive result and subsequent official confirmatory testing conducted by NVSL. As indicated in the July 2006 final rule, official confirmatory testing by NVSL is required whether the initial test was conducted by an approved laboratory or by NVSL itself. Therefore, we are amending the definition of
We are also reorganizing § 55.25 by moving the second sentence to the end of the section, to improve clarity.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.
This final rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.
We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also provides a final regulatory flexibility analysis that examines the potential economic effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under
This final rule amends a suspended final rule published in July 2006, for the control of chronic wasting disease (CWD) in farmed or captive cervids (deer, elk, and moose) in the United States. The July 2006 final rule established a voluntary Herd Certification Program that included CWD monitoring and testing requirements and set interstate movement restrictions. APHIS suspended the July 2006 final rule indefinitely to reconsider several of its requirements in response to petitions from the public and comments on those petitions. In this document, we examine expected benefits and costs of the July 2006 final rule, as amended by this final rule. With publication of this final rule and concurrent removal of the
Amendments to the July 2006 final rule include the following: (i) The Federal CWD regulations will set minimum requirements for interstate movement, while States will be allowed to impose additional requirements; (ii) cervids allowed to be moved interstate (other than ones moving to slaughter or for research), must be from Certified herds that have been monitored for a period of at least 5 years and that have not been epidemiologically linked to herds where CWD has been diagnosed, or captured from a wild cervid population that has been documented to be low risk for CWD based on a surveillance program; (iii) farmed or captive cervids, when en route to another State, will be allowed to transit through States that otherwise ban or restrict their entry; (iv) a physical inventory of the animals will be required at the time a herd is enrolled in a CWD certification program and thereafter the animals will need to be physically assembled for inventory within 3 years of the last physical inventory; (v) certified cervids that die or are killed at slaughter or on shooter operations will be required to be tested for CWD; and (vi) there will be optional confirmatory DNA test provisions for animals that test CWD-positive.
Implementation of the July 2006 final rule as amended by this final rule is expected to result in both positive and negative economic effects for herd owners and States, with benefits and costs depending on herd owners' existing management practices and marketing activities and States' current provisions with respect to CWD control. Overall benefits of the rule are expected to exceed its costs. Foremost, the July 2006 rule, as amended, will help prevent the spread of CWD among States and facilitate interstate movement of healthy cervids. The Herd Certification Program will also promote U.S. producers' access to international markets for cervid products such as antler velvet.
The regulations will provide uniform minimum requirements for interstate movement. This final rule will allow States to enact and administer stricter CWD status requirements for cervids entering from other States. As at present, herd owners' interstate marketing decisions may need to account for dissimilar State CWD certification regulations.
Some herd owners also may be adversely affected by the 5-year monitoring requirement for interstate movement; however, available research indicates that this minimum period of monitoring is necessary to provide an adequate level of protection against the spread of CWD. Most researchers agree that CWD manifests itself within 5 years if the disease is present in a herd of farmed or captive cervids. Many herd owners have been participating in state level CWD HCP's for at least 5 years and will have met this requirement as a result of being enrolled in a state program that becomes an Approved State HCP in the national CWD HCP program.
Producers who participate in the Herd Certification Program will be required to maintain a complete inventory of their herds, with verification by APHIS or State officials. The annual inventory cost is estimated to average about $25 to $30 per deer or elk, including the animals' physical inventory once every three years and use of eartags for identification. (We do not know of any farmed or captive moose herds.) Values of farmed or captive deer and elk range widely, depending on the type of animal and market conditions. Based on average per animal values of $2,000 for deer and $2,200 for elk, annual inventory costs are estimated to average between 1.25 and 1.50 percent of the value of a farmed or captive deer and to between 1.14 and 1.36 percent of the value of a farmed or captive elk.
The requirement that cervids from herds participating in the certification program be tested for CWD when they die or are killed (including slaughter) will entail submission of the carcass or whole head for tissue sampling and testing or collection of the tissue sample by an approved veterinarian. The estimated cost is about $150 per sample, equivalent to about 8 percent of the average value of a farmed or captive deer and about 7 percent of the average value of a farmed or captive elk. CWD testing of cervids is recognized by APHIS, the States, and cervid herd owners as essential to successful control of this disease.
Herd owners will have the option of using confirmatory DNA testing provisions to verify that the sample tested is from the animal in question, although APHIS is confident that the existing chain-of-custody processes for CWD testing are effective. Owners who choose confirmatory DNA testing will consider it a benefit, as evidenced by their voluntary payment for this test.
Most cervid operations are small entities. The rule will have a positive overall economic impact on affected entities large and small, and the U.S. cervid industries generally, in controlling the spread of CWD and facilitating interstate and international trade in cervids and cervid products.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
APHIS sent a letter notifying all 565 federally recognized Tribes of the proposed changes to the CWD regulations. APHIS requested from Tribes all comments based on potential impacts and outcomes concerning the March 2009 proposed rule. APHIS offered to conduct conference calls or formal consultations with Tribal leaders if requested. APHIS did not receive any comments from Tribes regarding the March 2009 proposed rule.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), we published a notice in the
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and
Animal diseases, Cervids, Chronic wasting disease, Deer, Elk, Indemnity payments, Moose.
Animal diseases, Cervids, Deer, Elk, Moose, Quarantine, Reporting and recordkeeping requirements, Transportation.
Accordingly, for the reasons set forth in the preamble under the authority at 7 U.S.C. 8301–8317 and 7 CFR 2.22, 2.80, and 371.4, we are announcing the effective date of the final rule published on July 21, 2006 (71 FR 41682) and further amending 9 CFR Chapter I as follows:
7 U.S.C. 8301–8317; 7 CFR 2.22, 2.80, and 371.4.
(1) National Uniform Eartagging System. The CWD program allows the use of either the eight-character or nine-character format for cervids.
(2) Animal identification number (AIN).
(3) Premises-based number system. The premises-based number system combines an official premises identification number (PIN), as defined in this section, with a producer's livestock production numbering system to provide a unique identification number. The PIN and the production number must both appear on the official tag.
(4) Any other numbering system approved by the Administrator for the identification of animals in commerce.
(1) The State's two-letter postal abbreviation followed by the premises' assigned number; or
(2) A seven-character alphanumeric code, with the right-most character being a check digit. The check digit number is based upon the ISO 7064 Mod 36/37 check digit algorithm.
The CWD Herd Certification Program is a cooperative effort between APHIS, State animal health and wildlife agencies, and deer, elk, and moose owners. APHIS coordinates with these State agencies to encourage deer, elk, and moose owners to certify their herds as low risk for CWD by being in continuous compliance with the CWD Herd Certification Program standards.
(a)
(b)
(1)
(i) For herds already participating in State CWD programs, the enrollment date will be the first day that the herd participated in a State program that APHIS subsequently determines qualifies as an Approved State CWD Herd Certification Program in accordance with § 55.23(a) of this part.
(ii) For herds that enroll directly in the Federal CWD Herd Certification Program, which is allowed only when there is no Approved State CWD Herd Certification Program in their State and which is subject to the availability of appropriated funds, the enrollment date will be the earlier of:
(A) The date APHIS approves enrollment; or
(B) If APHIS determines that the herd owner has maintained the herd in a manner that substantially meets the conditions specified in § 55.23(b) for herd owners, the first day that the herd participated in such a program. However, in such cases the enrollment date may not be set at a date more than 3 years prior to the date that APHIS approved enrollment of the herd.
(iii) For new herds that were formed from and contain only animals from herds enrolled in the CWD Herd Certification Program, the enrollment date will be the latest enrollment date for any source herd for the animals.
(2) [
(a)
(1) Has the authority, based on State law or regulation, to restrict the intrastate movement of all CWD-positive, CWD-suspect, and CWD-exposed animals.
(2) Has the authority, based on State law or regulation, to require the prompt reporting of any animal suspected of having CWD and test results for any animals tested for CWD to State or Federal animal health authorities.
(3) Has, in cooperation with APHIS personnel, drafted and signed a memorandum of understanding with APHIS that delineates the respective roles of the State and APHIS in CWD Herd Certification Program implementation.
(4) Has placed all known CWD-positive, CWD-exposed, and CWD-suspect animals and herds under movement restrictions, with movement
(5) Has effectively implemented policies to:
(i) Promptly investigate all animals reported as CWD-suspect animals;
(ii) Designate herds as CWD-positive, CWD-exposed, or CWD-suspect and promptly restrict movement of animals from the herd after an APHIS employee or State representative determines that the herd contains or has contained a CWD-positive animal;
(iii) Remove herd movement restrictions only after completion of a herd plan agreed upon by the State representative, APHIS, and the owner;
(iv) Conduct an epidemiologic investigation of CWD-positive, CWD-exposed, and CWD-suspect herds that includes the designation of suspect and exposed animals and that identifies animals to be traced;
(v) Conduct tracebacks of CWD-positive animals and traceouts of CWD-exposed animals and report any out-of-State traces to the appropriate State promptly after receipt of notification of a CWD-positive animal; and
(vi) Conduct tracebacks based on slaughter or other sampling promptly after receipt of notification of a CWD-positive animal at slaughter.
(6) Effectively monitors and enforces State quarantines and State reporting laws and regulations for CWD.
(7) Has designated at least one State animal health official, or has worked with APHIS to designate an APHIS official, to coordinate CWD Herd Certification Program activities in the State.
(8) Has programs to educate those engaged in the interstate movement of deer, elk, and moose regarding the identification and recordkeeping requirements of this part.
(9) Requires, based on State law or regulation, and effectively enforces identification of all animals in herds participating in the CWD Herd Certification Program;
(10) Maintains in the CWD National Database administered by APHIS, or in a State database approved by the Administrator as compatible with the CWD National Database, the State's:
(i) Premises information and assigned premises numbers;
(ii) Individual animal information on all deer, elk, and moose in herds participating in the CWD Herd Certification Program in the State;
(iii) Individual animal information on all out-of-State deer, elk, and moose to be traced; and
(iv) Accurate herd status data.
(11) Requires that tissues from all CWD-exposed or CWD-suspect animals that die or are depopulated or otherwise killed be submitted to a laboratory authorized by the Administrator to conduct official CWD tests and requires appropriate disposal of the carcasses of CWD-positive, CWD-exposed, and CWD-suspect animals.
(b)
(1) Each animal in the herd must be identified using means of animal identification specified in § 55.25. All animals in an enrolled herd must be identified before reaching 12 months of age. In addition, all animals of any age in an enrolled herd must be identified before being moved from the herd premises. In addition, all animals in an enrolled herd must be identified before the inventory required under paragraph (b)(4) of this section, and animals found to be in violation of this requirement during the inventory must be identified during or after the inventory on a schedule specified by the APHIS employee or State representative conducting the inventory;
(2) The herd premises must have perimeter fencing adequate to prevent ingress or egress of cervids. This fencing must also comply with any applicable State regulations;
(3) The owner must immediately report to an APHIS employee or State representative all animals that escape or disappear, and all deaths (including animals killed on premises maintained for hunting and animals sent to slaughter) of deer, elk, and moose in the herd aged 12 months or older; Except that, APHIS employees or State representatives may approve reporting schedules other than immediate notification when herd conditions warrant it in the opinion of both APHIS and the State. The report must include the identification numbers of the animals involved and the estimated time and date of the death, escape, or disappearance. For animals that die (including animals killed on premises maintained for hunting and animals sent to slaughter), the owner must inform an APHIS or State representative and must make the carcasses of the animals available for tissue sampling and testing in accordance with instructions from the APHIS or State representative. In cases where animals escape or disappear and thus are not available for tissue sampling and testing, or when the owner provides samples that are of such poor quality that they cannot be tested for CWD, an APHIS representative will investigate whether the unavailability of animals or usable samples for testing constitutes a failure to comply with program requirements and will affect the herd's status in the CWD Herd Certification Program;
(4) The owner must maintain herd records that include a complete inventory of animals that states the species, age, and sex of each animal, the date of acquisition and source of each animal that was not born into the herd, the date of disposal and destination of any animal removed from the herd, and all individual identification numbers (from tags, tattoos, electronic implants, etc.) associated with each animal. Upon request by an APHIS employee or State representative, the owner must allow either of these officials or a designated accredited veterinarian access to the premises and herd to conduct an inventory. The owner will be responsible for assembling, handling, and restraining the animals and for all costs incurred to present the animals for inspection. The APHIS employee or State representative may order either an inventory that consists of review of herd records with visual examination of an enclosed group of animals, or a complete physical herd inventory with verification to reconcile all animals and identifications with the records maintained by the owner. In the latter case, the owner must present the entire herd for inspection under conditions where the APHIS employee, State representative, or accredited veterinarian can safely read all identification on the animals. During inventories, the owner must cooperate with the inspector to resolve any discrepancies to the satisfaction of the person performing the inventory. Inventory of a herd will be conducted no more frequently than once per year, unless an APHIS employee, State representative, or accredited veterinarian determines that more frequent inventories are needed based on indications that the herd may not be in compliance with CWD Herd Certification Program requirements. A complete physical herd inventory must be performed on a herd in accordance with this paragraph at the time a herd is enrolled in the CWD Herd Certification Program; Except that, APHIS may accept a complete physical herd inventory performed by an APHIS employee, State representative, or accredited veterinarian not more than 1 year before the herd's date of enrollment in the CWD Herd Certification Program as fulfilling the requirement for an initial inventory. In addition, a complete physical herd inventory must be performed for all herds enrolled in
(5) If an owner wishes to maintain separate herds, he or she must maintain separate herd inventories, records, working facilities, water sources, equipment, and land use. There must be a buffer zone of at least 30 feet between the perimeter fencing around separate herds, and no commingling of animals may occur. Movement of animals between herds must be recorded as if they were separately owned herds;
(6) New animals may be introduced into the herd only from other herds enrolled in the CWD Herd Certification Program. If animals are received from an enrolled herd with a lower program status, the receiving herd will revert to that lower program status. If animals are obtained from a herd not participating in the program, then the receiving herd will be required to start over in the program.
(a)
(b)
(2) If a herd is designated a CWD-suspect herd, a trace back herd, or a trace forward herd, it will immediately be placed in Suspended status pending an epidemiologic investigation by APHIS or a State animal health agency. If the epidemiologic investigation determines that the herd was not commingled with a CWD-positive animal, the herd will be reinstated to its former program status, and the time spent in Suspended status will count toward its promotion to the next herd status level.
(i) If the epidemiologic investigation determines that the herd was commingled with a CWD-positive animal, the herd will lose its program status and will be designated a CWD-exposed herd.
(ii) If the epidemiological investigation is unable to make a determination regarding the exposure of the herd, because the necessary animal or animals are no longer available for testing (i.e., a trace animal from a known positive herd died and was not tested) or for other reasons, the herd status will continue as Suspended unless and until a herd plan is developed for the herd. If a herd plan is developed and implemented, the herd will be reinstated to its former program status, and the time spent in Suspended status will count toward its promotion to the next herd status level;
(3) If an APHIS or State representative determines that animals from a herd enrolled in the program have commingled with animals from a herd with a lower program status, the herd with the higher program status will be reduced to the status of the herd with which its animals commingled.
(c)
(1) Herd owners may appeal designation of an animal as CWD-positive, cancellation of enrollment of a herd, or loss or suspension of herd status by writing to the Administrator within 10 days after being informed of the reasons for the action. The appeal must include all of the facts and reasons upon which the herd owner relies to show that the reasons for the action are incorrect or do not support the action. Specifically, to appeal designation of an animal as CWD-positive, the owner may present as evidence the results of a DNA test requested and paid for by the owner to determine whether previous official CWD test results were correctly associated with an animal that belonged to the owner. If the owner intends to present such test results as evidence, he or she shall request the tests and state this in the written notice sent to the Administrator. In such cases the Administrator may postpone a decision on the appeal for a reasonable period pending receipt of such test results. To this end, laboratories approved under § 55.8 are authorized to conduct DNA tests to compare tissue samples tested for CWD to samples from tissues that were collected at the same time from the same animal and are attached to an official identification device. Such DNA tests are available only if the animal owner arranged to submit animal tissue attached to an official identification device along with the other tissues that were collected for the official CWD test. The Administrator will grant or deny the appeal in writing as promptly as circumstances permit, stating the reason for his or her decision. If the Administrator grants an appeal of the status of a CWD-positive animal, the animal shall be redesignated as CWD-suspect pending further investigation to establish the final status of the animal and its herd. If there is a conflict as to any material fact, a hearing will be held to resolve the conflict. Rules of practice concerning the hearing will be adopted by the Administrator.
(2) [
(d)
Each animal required to be identified by this subpart must have at least two forms of animal identification attached to the animal. One of the animal identifications must be official animal identification as defined in this part, with a nationally unique animal identification number that is linked to that animal in the CWD National Database or in an approved State database. The second animal identification must be unique for the individual animal within the herd and also must be linked to that animal and herd in the CWD National Database or in an approved State database. The means of animal identification must be approved for this use by APHIS, and must be an electronic implant, flank tattoo, ear tattoo, tamper-resistant ear tag, or other device approved by APHIS.
7 U.S.C. 8301–8317; 7 CFR 2.22, 2.80, and 371.4.
These definitions are applicable to this part:
(1) National Uniform Eartagging System. The CWD program allows the use of either the eight-character or nine-character format for cervids.
(2) Animal identification number (AIN).
(3) Premises-based number system. The premises-based number system combines an official premises identification number (PIN), as defined in this section, with a producer's livestock production numbering system to provide a unique identification number. The PIN and the production number must both appear on the official tag.
(4) Any other numbering system approved by the Administrator for the identification of animals in commerce.
(1) The State's two-letter postal abbreviation followed by the premises' assigned number; or
(2) A seven-character alphanumeric code, with the right-most character being a check digit. The check digit number is based upon the ISO 7064 Mod 36/37 check digit algorithm.
Each animal required to be identified by this part must have at least two forms of animal identification attached to the animal. The means of animal identification must be approved for this use by APHIS, and must be an electronic implant, flank tattoo, ear tattoo, tamper-resistant ear tag, or other device approved by APHIS. One of the animal identifications must be an official animal identification as defined in this part, with a nationally unique animal identification number that is linked to that animal in the CWD National Database or in an approved State database. The second animal identification must be unique for the individual animal within the herd and also must be linked to that animal and herd in the CWD National Database or in an approved State database.
No farmed or captive deer, elk, or moose may be moved interstate unless it meets the requirements of this section.
(a)
(1) Enrolled in the CWD Herd Certification Program and the herd has achieved Certified status in accordance with § 55.24 of this chapter; and
(2) Is accompanied by a certificate issued in accordance with § 81.4 that identifies its herd of origin and that states that the animal's herd has achieved Certified status and that the animal does not show clinical signs associated with CWD.
(b)
(c)
(d)
(1) To apply for a research animal permit, contact an APHIS employee or State representative and provide the following information:
(i) The name and address of the person to whom the special permit is issued, the address at which the research cervids to be moved interstate are being held, and the name and address of the person receiving the cervids to be moved interstate;
(ii) The number and type of cervids to be moved interstate;
(iii) The reason for the interstate movement;
(iv) Any safeguards in place to prevent transmission of CWD during movement or at the receiving location; and
(v) The date on which movement will occur.
(2) A copy of the research animal permit must accompany the cervids moved, and copies must be submitted so that a copy is received by the State animal health official and the veterinarian in charge for the State of destination at least 72 hours prior to the arrival of the cervids at the destination listed on the research animal permit.
(e)
(a)
(1) Certificates issued for animals captured from a wild population for interstate movement and release do not need to state that the animals are from a herd that has achieved Certified status in the CWD Herd Certification Program but must include the statement required in § 81.3(b); and
(2) Certificates issued for animals moved directly to slaughter do not need to state that the animals are from a herd that has achieved Certified status in the CWD Herd Certification Program and must state that an APHIS employee or State representative has been notified in advance of the date the animals are being moved to slaughter.
(b)
(1) The document must be a State form or APHIS form that requires individual identification of animals;
(2) A legible copy of the document must be stapled to the original and each copy of the certificate;
(3) Each copy of the document must identify each animal to be moved with the certificate, but any information pertaining to other animals, and any unused space on the document for recording animal identification, must be crossed out in ink; and
(4) The following information must be typed or written in ink in the identification column on the original and each copy of the certificate and must be circled or boxed, also in ink, so that no additional information can be added:
(i) The name of the document; and
(ii) Either the serial number on the document or, if the document is not imprinted with a serial number, both the name of the person who issued the document and the date the document was issued.
Farmed or captive deer, elk, or moose may be moved through a State or
(a) The farmed or captive deer, elk, or moose must be eligible to move interstate under § 81.3.
(b) The farmed or captive deer, elk, or moose must meet the entry requirements of the destination State listed on the certificate or permit accompanying the animal.
(c) Except in emergencies, the farmed or captive deer, elk, or moose must not be unloaded until their arrival at their destination.
State and local laws and regulations on farmed or captive deer, elk, or moose with respect to CWD that are more restrictive than the regulations in this part are not preempted by this part, except as described in § 81.5.
Centers for Disease Control and Prevention, HHS.
Notice of proposed rulemaking.
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 amended the Public Health Service Act (PHS Act) to establish the World Trade Center (WTC) Health Program. The WTC Health Program, which is administered by the Director of the National Institute for Occupational Safety and Health (NIOSH), within the Centers for Disease Control and Prevention (CDC), provides medical monitoring and treatment to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery, and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City, at the Pentagon, and in Shanksville, Pennsylvania, and to eligible survivors of the New York City attacks. In accordance with our regulations, which establish procedures for adding a new condition to the list of health conditions covered by the WTC Health Program, this proposed rule would add certain types of cancer to the List of WTC-Related Health Conditions.
Comments must be received by July 13, 2012.
•
•
•
Frank J. Hearl, PE, Chief of Staff, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, Patriots Plaza, Suite 9200, 395 E St. SW., Washington, DC 20201. Telephone: (202) 245–0625 (this is not a toll-free number). Email:
This notice of proposed rulemaking is organized as follows:
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111–347), amended the Public Health Service Act (PHS Act) establishing the World Trade Center (WTC) Health Program within the Department of Health and Human Services (HHS). The PHS Act requires the WTC Program Administrator (Administrator) to conduct rulemaking to propose the addition of a health condition to the List of WTC-Related Health Conditions (List) codified in 42 CFR 88.1 whether the Administrator adds a health condition based on the findings from periodic reviews of cancer,
This rule modifies the List of WTC-Related Health Conditions in 42 CFR 88.1 to add the following conditions (types of cancer identified by ICD–10 code are specified in the discussion below):
The Administrator developed a hierarchy of methods (detailed in section III.D of this preamble) for determining which cancers to propose for inclusion on the List of WTC-Related Health Conditions. HHS is seeking comments on the proposed methods in this rule.
Annual costs, benefits, and transfers of this rule are listed in the table below. This analysis estimates the impact on WTC Health Program costs using the number of persons currently enrolled in the program as responders and survivors and assumes that the rate of cancer in the population will be equal to the U.S. population average rate. An alternative analysis considers the impact on costs if the Program enrolls additional persons up to the Program's statutory limits, and that the expanded population experiences a 21 percent higher rate of cancer than the U.S. population average. The basis for these assumptions is explained in detail in the preamble of this rulemaking.
Although we cannot quantify the benefits associated with the WTC Health Program, enrollees with cancer are expected to experience a higher quality of care than they would in the absence of the Program. Mortality and morbidity improvements for cancer patients expected to enroll in the WTC Health Program are anticipated because barriers may exist to access and delivery of quality health care services for cancer patients in the absence of the services provided by the WTC Health Program. HHS anticipates benefits to cancer patients treated through the WTC Health Program, who may otherwise not have access to health care services, to accrue in 2013. Starting in 2014, continued implementation of the Affordable Care Act will result in increased access to health insurance and improved health care services for the general responder and survivor population that currently is uninsured.
Interested persons or organizations are invited to participate in this rulemaking by submitting written views, opinions, recommendations, and data. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. Comments are invited on any topic related to this proposed rule. The Administrator is seeking comments from the public on the following specific topics:
1. The four methods proposed to evaluate evidence for the addition of types of cancer to the List of WTC-Related Health Conditions;
2. Information or published studies about the type of welding that occurred in the New York City disaster area, at the Pentagon, or at Shanksville, Pennsylvania with regard to metal
3. Information or published studies about work hours scheduling or shiftwork occurring in the New York City disaster area, at the Pentagon, or in Shanksville, Pennsylvania.
Comments submitted electronically or by mail should be titled “Docket No. CDC–2012–0007; NIOSH–257,” addressed to the “NIOSH Docket Officer,” and should identify the author(s) and contact information (such as return address, email address, or phone number), in case clarification is needed. Electronic and written comments can be submitted to the addresses provided in the
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111–347), amended the Public Health Service Act (PHS Act) to add Title XXXIII
All references to the Administrator of the WTC Health Program (Administrator) in this notice mean the NIOSH Director or his or her designee. Title XXXIII, § 3312(a)(6) of the PHS Act requires the Administrator to conduct rulemaking to propose the addition of a health condition to the List of WTC-Related Health Conditions (List) codified in 42 CFR 88.1.
Under 42 CFR 88.17, the Administrator has established a process by which health conditions may be considered for addition to the List of WTC-Related Health Conditions in § 88.1. Pursuant to § 3312(a)(6) of Title XXXIII of the PHS Act, the Administrator is required to publish a notice of proposed rulemaking and allow interested parties to comment on the proposed rule. The proposed rule may be initiated by the Administrator whenever he or she determines that a proposed rule should be promulgated to add a health condition (
On September 7, 2011, the Administrator of the WTC Health Program received a written petition to add a health condition to the List of WTC-Related Health Conditions (Petition 001). Petition 001 requested that the Administrator “consider adding coverage for cancer under the Zadroga Act” to the List in § 88.1. [Maloney,
On October 5, 2011, the Administrator formally exercised his option to request a recommendation from the STAC regarding the petition (PHS Act, Title XXXIII, § 3312(a)(6)(B)(i); 42 CFR 88.17(a)(2)(i)). The Administrator requested that the STAC “review the available information on cancer outcomes associated with the exposures resulting from the September 11, 2001, terrorist attacks, and provide advice on whether to add cancer, or a certain type of cancer, to the List specified in the Zadroga Act.” [Howard 2011] The background to this rulemaking and a discussion of the STAC's recommendation are provided below.
To determine whether the scientific evidence is sufficient to support the addition of cancer or types of cancer to the List of WTC-Related Health Conditions, the Administrator considered data from five information sources: (1) Peer-reviewed studies published in the scientific literature, including environmental sampling data, epidemiologic studies on the 9/11 exposed populations, and studies providing evidence of a causal relationship between a type of cancer and a condition already on the List of WTC-Related Health Conditions; (2) findings and recommendations solicited from the WTC Clinical Centers of Excellence and Data Centers, the WTC Health Registry at the New York City Department of Health and Mental Hygiene, and the New York State Department of Health; (3) information from the public solicited through a request for information published in the
NTP, an interagency program that evaluates agents of public health concern using toxicology and molecular biology, publishes the biennial Report on Carcinogens (RoC), which contains a list of human carcinogens, exposure information, and descriptions of Federal exposure limits.
IARC, which coordinates and conducts research on the causes of human cancer and the mechanisms of carcinogenesis, maintains a series of
In July 2011, the Administrator released the
At the time of publication, the
In September 2011, an epidemiologic study was published in
In the petition, which was received shortly after publication of the Zeig-Owens study, the petitioners stated they “read with great concern * * * the study conducted by the New York City Fire Department and published last week in
Title XXXIII, § 3302(a)(1) establishes the STAC, and charges it to “review scientific and medical evidence and to make recommendations to the Administrator on additional WTC Program eligibility criteria and on additional WTC-related health conditions.” Accordingly, when asked by the Administrator to provide a recommendation on Petition 001, the STAC established evidentiary criteria and assessed the weight of the available scientific evidence provided by information sources (1), (4), and (5), described above. The STAC found support for including a number of types of cancer based in part on evidence of increased risk reported in Zeig-Owens.
Unlike the explicit language in Title XXXIII, § 3312(a)(5)(A) of the PHS Act, which prescribes the standard to be used in the periodic reviews of cancer, § 3312(a)(6) does
As discussed extensively below, the Administrator has adopted a formal methodology to evaluate the available scientific evidence. The formal methodology follows on criteria used by the STAC in its recommendation and is presented below, in section III.D.3.
Based upon the new methodology, the Administrator proposes to add the types of cancer identified in section III.D.4., below, to the List of WTC-Related Health Conditions. The Administrator seeks comment on the methods developed, and the application of those methods, to add cancer or a type of cancer to the List of WTC-Related Health Conditions.
In response to the Administrator's October 5, 2011 request, the STAC met on three occasions—November 9–10, 2011, February 15–16, 2012, and March 28, 2012—to deliberate and develop recommendations on Petition 001 for the Administrator's consideration. The Administrator received the STAC recommendations on April 2, 2012. [STAC 2012]
In its April 2, 2012 recommendation to the Administrator, the chair of the STAC wrote that the STAC had:
[R]eviewed available information on cancer outcomes that may be associated with the exposures resulting from the September 11, 2001, terrorist attacks, and believes that exposures resulting from the collapse of the buildings and high-temperature fires are likely to increase the probability of developing some or all cancers. This conclusion is based primarily on the presence of approximately 70 known and potential carcinogens in the smoke, dust, volatile and semi-volatile contaminants identified at the World Trade Center site. Fifteen of these substances are classified by the International Agency for Research on Cancer (IARC) as known to cause cancer in humans, and 37 are classified by the National Toxicology Program (NTP) as reasonably anticipated to cause cancer in humans; others are classified by IARC as probable and possible carcinogens. Many of these carcinogens are genotoxic and it is therefore assumed that any level of exposure carries some risk. [STAC 2012]
In its recommendation, the STAC also noted that “exposure data are extremely limited.” The STAC summarized the state of exposure assessment relevant to the terrorist attacks in New York City:
No data were collected in the first 4 days after the attacks [in New York City], when the highest levels of air contaminants occurred, and the variety of samples taken on or after September 16, 2001 are insufficient to provide quantitative estimates of exposure on an individual or area level. However, the committee considers that the high prevalence of acute symptoms and chronic conditions observed in large numbers of rescue, recovery, cleanup and restoration workers and survivors, as well as qualitative descriptions of exposure conditions in downtown Manhattan, represent highly credible evidence that significant toxic exposures occurred. Furthermore, the salient biological reaction that underlies many currently recognized WTC health conditions—persistent inflammation—is now believed to be an important mechanism underlying cancer through generating DNA-reactive substances, increasing cell turnover, and releasing biologically active substances that promote tumor growth, invasion and metastasis.
In its recommendation to the Administrator, the STAC wrote:
The committee deliberated on whether to designate all cancers as WTC-related conditions or to list only cancers with the strongest evidence. Some members proposed to include all cancers based on the incomplete and limited epidemiological data available to identify specific cancers, and others argued for the alternative of listing specific cancers based on best available evidence. The committee agreed to proceed by generating a list of cancers potentially related to WTC exposures based on evidence from three sources. [STAC 2012]
The STAC based its Petition 001 recommendation regarding the addition of certain types of cancer on evidence from four sources:
1. 9/11 agents (those known and potential carcinogens identified in the New York City disaster area) with
2. Cancers arising from regions of the respiratory and digestive tracts where inflammatory conditions, such as gastroesophageal reflux disease (GERD), have been documented;
3. Cancers for which epidemiologic studies have found some evidence of increased risk in WTC responder and survivor populations; and
4. Findings from other sources of information relevant to 9/11 exposures and the potential occurrence of cancer, including the expert judgment and personal experiences of STAC members, and comments from the public.
Based on these four evidentiary sources, the STAC recommended to the Administrator that the following 14 cancer groups, encompassing many types of cancer, be added to the List of WTC-Related Health Conditions in 42 CFR 88.1:
1. Malignant neoplasms of the respiratory system (including nose, nasal cavity and middle ear, larynx, lung and bronchus, pleura, trachea, mediastinum, and other respiratory organs);
2. Certain cancers of the digestive system, including esophagus, stomach, colon and rectum, liver and intrahepatic bile duct, retroperitoneum, peritoneum, omentum, and mesentery;
3. Cancers of the oral cavity and pharynx, including lip, tongue, salivary gland, floor of mouth, gum and other mouth, nasopharynx, tonsil, oropharynx, hypopharynx and other oral cavity, and pharynx;
4. Soft tissue sarcomas;
5. Melanoma and non-melanoma skin cancers, including scrotal cancer;
6. Mesothelioma of the pleura and peritoneum;
7. Cancer of the ovary;
8. Cancers of the urinary tract, including urinary bladder, kidney and renal pelvis, ureter, and other urinary organs;
9. Cancer of the eye and orbit;
10. Thyroid cancer;
11. Lymphoma, leukemia, and myeloma;
12. Breast cancer;
13. Childhood cancers (all cancers diagnosed in persons less than 20 years old); and
14. Rare cancers.
In its recommendation to the Administrator, the STAC also made four additional points.
First, the STAC recommended that as new epidemiologic studies of 9/11-exposed populations become available, the studies' findings “be reviewed and modifications made to the list as appropriate.” [STAC 2012]
Second, the STAC recommended that the WTC Health Program provide funding and guidelines for medical screening and early detection of cancer and appropriate counseling. [STAC 2012]
Third, the STAC emphasized that although evidence of carcinogenicity of 9/11 agents from animal studies or mechanistic studies exists,
Fourth, the STAC noted:
In addition to the evidence considered by the committee to identify potential WTC-related cancers, arguments in favor of listing cancer as a WTC-related condition include the presence of multiple exposures and mixtures with the potential to act synergistically and to produce unexpected health effects; the major gaps in the data with respect to the range and levels of carcinogens, the potential for heterogeneous exposures and hot spots representing exceptionally high or unique exposures both on the WTC site and in surrounding communities, the potential for bioaccumulation of some of the compounds, limitations of testing for carcinogenicity of many of the 287 agents and chemical groups cited in the first NIOSH Periodic Review, and the large volume of toxic materials present in the WTC towers. [STAC 2012]
Finally, the STAC stated that
[A]lthough acknowledging some lack of certainty in the evidence for targeting specific organs or organ site groupings as WTC-related, the majority of the committee agreed that recommending the specified cancer sites and site groupings was based on a sound scientific rationale and the best evidence available to date. [STAC 2012]
The Administrator agrees with the STAC that individual exposure assessment information arising from the terrorist attacks is extremely limited and that its absence impairs definitive
As noted in the
Drawing causal inferences about exposures resulting from the September 11, 2001, terrorist attacks and the observation of cancer cases in responders and survivors is especially challenging since cancer is not a rare disease. In the United States, the probability that a person will develop cancer during their lifetime is one in two for men and one in three for women [ACS 2010]. This ‘background' rate of cancer development would be expected in responders and survivors even if the September 11, 2001, terrorist attacks had never occurred. Determining, then, if the September 11, 2001, exposures are contributing to an additional burden of cancer in responders and survivors is a scientific challenge. [NIOSH 2011]
Also noted in the
Given the limitations of the current peer-reviewed scientific literature on cancer and 9/11 exposures, the Administrator agrees with the approaches the STAC used to recommend cancers for addition to the List of WTC-Related Health Conditions, but seeks additional information or published studies that are informative on the subject of adding certain types of cancer to the List of WTC-Related Health Conditions (Section III.D.5).
First, the STAC approach recommended including types of cancer for which IARC has categorized known 9/11 agents as having
Second, the STAC drew attention to types of cancers which arise in regions of the respiratory and digestive tracts where inflammatory conditions have been documented, some of which are health conditions already on the List of WTC-Related Health Conditions, including WTC-related health conditions of the upper and lower airway, and gastroesophageal reflux disease (GERD). The STAC cited several peer-review scientific publications about current scientific thinking on the relationship between inflammation and cancer.
The Administrator agrees that a type of cancer may be added to the List if there is well-established scientific support for a causal relationship between that cancer and a WTC-related health condition already on the List. For example, when a WTC-related health condition (
Third, the STAC included types of cancer based on an epidemiologic cohort study that identified a modest effect of WTC exposure for all cancers combined in exposed FDNY firefighters. [Zeig-Owens,
The Administrator believes that it is plausible that the overall rate of cancer cases in FDNY firefighters may have increased following those firefighters' exposures to 9/11 agents, but agrees with the authors of the Zeig-Owens study who noted there could be other explanations for the findings:
We remain cautious in our interpretation of these findings because the time interval since 9/11 is short for cancer outcomes, the recorded excess of cancers is not limited to specific sites, and the biological plausibility of chronic inflammation as a possible mediator between WTC-exposure and cancer outcomes remains speculative. [Zeig-Owens,
The Administrator notes that the STAC recommended inclusion of five site-specific cancer types based on findings in the Zeig-Owens study when the incidence of certain types of cancer in exposed firefighters was compared to non-exposed firefighters. These cancers are stomach, colon (excluding rectum), melanoma, non-Hodgkin lymphoma, and thyroid. The Zeig-Owens study is
Fourth, the STAC also considered findings from sources of information relevant to 9/11 exposures (including the expert judgment and personal experiences of STAC members, and comments from the public) and the potential occurrence of cancer.
The Administrator considered the approaches used in the
The Administrator developed the following hierarchy of methods for determining whether to add cancer or types of cancer to the List of WTC-Related Health Conditions in 42 CFR 88.1. In determining whether to propose that a type of a cancer be included on the List, a review of the evidence must demonstrate fulfillment of at least one of the following four methods:
Method 1. Epidemiologic Studies of September 11, 2001 Exposed Populations. A type of cancer may be added to the List if published, peer-reviewed epidemiologic evidence supports a causal association between 9/11 exposures and the cancer type. The following criteria extrapolated from the Bradford Hill criteria will be used to evaluate the evidence of the exposure-cancer relationship:
•
•
•
•
Method 2. Established Causal Associations. A type of cancer may be added to the List if there is well-established scientific support published in multiple epidemiologic studies for a causal association between that cancer and a condition already on the List of WTC-Related Health Conditions.
Method 3. Review of Evaluations of Carcinogenicity in Humans. A type of cancer may be added to the List only if
Method 4. Review of Information Provided by the WTC Health Program Scientific/Technical Advisory Committee. A type of cancer may be added to the List if the STAC has provided a reasonable basis for adding a type of cancer and the basis for inclusion does not meet the criteria for Method 1, Method 2, or Method 3.
The Administrator invites comment on this methodology and its implementation. The following schematic illustrates the methodology used in this rulemaking.
Using the evidentiary standards established above for inclusion of a cancer on the List of WTC-Related Health Conditions in 42 CFR 88.1, the Administrator reviewed the scientific evidence referenced in the
The Administrator's rationale and the method relied upon for inclusion of each type of cancer are offered below. The types of cancer proposed by the Administrator are grouped by anatomical region, for ease of discussion, and are identified by their individual ICD–10 code.
The STAC recommended including melanoma based on its interpretation of the Zeig-Owens study. The STAC stated:
Because the Zeig-Owens finding for melanoma was not statistically significant (when compared to non-exposed firefighters), the Administrator cannot propose to add melanoma to the List of WTC-Related Health Conditions based on Method 1. Melanoma is proposed for inclusion based on Method 4. The Administrator will continue to monitor cohort studies that address site-specific cancers such as melanoma in 9/11-exposed populations.
There is evidence of PCB exposures to WTC responders and survivors based on air samples, window film samples and one biomonitoring study. Studies have linked total and congener-specific PCB levels in serum and adipose tissue with breast cancer, although evidence has been conflicting. PCBs and some other substances at the WTC site are endocrine disruptors. Breast cancer risks are highly related to hormonal factors, including endogenous and exogenous estrogens, and could plausibly be affected by endocrine disruptors. A recent study found that PCBs enhanced the metastatic properties of breast cancer cells by activating rho-associated kinase. Shiftwork involving circadian rhythm disruption has been classified by IARC as probably carcinogenic to humans, based in part on epidemiologic studies associating shiftwork with increased risks of breast cancer. Both shiftwork and long shifts were common for workers involved in rescue, recovery, clean up, restoration and other activities at the WTC site. [STAC 2012, references omitted]
The STAC further noted the lack of opportunity to find evidence for breast cancer among exposed occupations because so few women work in the occupations mainly involved with response work in the New York City disaster area, at the Pentagon, and in Shanksville, Pennsylvania.
Shiftwork has been classified by IARC as
The Administrator will continue to review and evaluate the scientific evidence available to determine whether these types and any other types of cancer should be included in the List. These reviews will be published in the periodic reviews of cancer. Petitions to add types of cancer may also be filed with the Administrator. In the event additional studies are published prior to the issuance of a final rule regarding the subject of this notice of proposed rulemaking, the Administrator will consider those studies as appropriate in the process of developing a final rule.
In order for an individual enrolled as a WTC responder or survivor to obtain coverage for treatment of any health condition on the List of WTC-Related Health Conditions, including any of type of cancer added to the List, a two-step process must be satisfied. First, a physician at a Clinical Center of Excellence or in the nationwide provider network must make a determination that the particular type of cancer for which the responder or survivor seeks treatment coverage is both: (1) On the List of WTC-Related Health Conditions; and that (2) exposure to airborne toxins, other hazards, or adverse conditions resulting from the September 11, 2001, terrorist attacks is substantially likely to be a significant factor in aggravating, contributing to, or causing the type of cancer for which the responder or survivor seeks treatment coverage.
Early detection of cancer in 9/11-exposed populations—either as part of medical monitoring of enrolled WTC responders and survivors or part of ongoing research—is an important adjunct to the WTC Health Program. Screening for the cancers proposed by this rulemaking follow U.S. Preventive Services Task Force (USPSTF) Guidelines. There are two types of cancer proposed to be added to the List of WTC-Related Health Conditions for which the USPSTF has a current recommendation for screening. The USPSTF recommends screening for colorectal cancer (cancer of the colon and rectum) using fecal occult blood testing, sigmoidoscopy, or colonoscopy, in adults, beginning at age 50 years and continuing until age 75 years. [USPSTF 2008] The Task Force also recommends breast cancer screening using biennial mammography for women beginning at age 40.
Title II of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111–347) reactivated the September 11, 2001 Victim Compensation Fund (VCF). Administered by the U.S. Department of Justice (DOJ), the VCF provides compensation to any individual or representative of a deceased individual who was physically injured or killed as a result of the September 11, 2001, terrorist attacks or during the debris removal. Eligibility criteria for compensation by the VCF include a list of presumptively covered health conditions, which are physical injuries determined to be WTC-related health conditions by the WTC Health Program. Pursuant to DOJ regulations, the VCF Special Master is required to update the list of presumptively covered conditions when the List of WTC-Related Health Conditions in 42 CFR 88.1 is updated.
The proposed rule would amend the definition of “List of WTC-Related Health Conditions” in 42 CFR 88.1, to include the types of cancer discussed above in section II.D. Table 1 in the regulatory text describes types of cancers included in 42 CFR 88.1 and identifies each by ICD–10 code. Because the ICD–10 modification will not be used by the U.S. healthcare system until October 1, 2014, the corresponding ICD–9 codes for the included cancer types are also provided in Table 1.
The effect of this amendment would be that, for the types of cancers added, an enrolled WTC responder, certified-eligible survivor, or screening-eligible survivor may seek certification of a physician's determination that the September 11, 2001, terrorist attacks were substantially likely to be a significant factor in aggravating, contributing to, or causing the individual's cancer. If the condition is certified by the Administrator, the individual may seek treatment and monitoring of this condition under the WTC Health Program.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This rule has been determined to be a “significant regulatory action,” under § 3(f) of E.O. 12866. The addition of specific types of cancer proposed to be added to the List of WTC-Related Health Conditions by this rule is estimated to cost the WTC Health Program between $2,124,624
The WTC Health Program has, to date, enrolled approximately 55,000 New York City responders and approximately 5,000 survivors, or approximately 60,000 individuals in total. Of that total population, approximately 59,000 individuals were participants in previous WTC medical programs and were `grandfathered' into the WTC Health Program established by Title XXXIII. These grandfathered members were enrolled without having to complete a new member application when the WTC Health Program started on July 1, 2011 and are referred to in the WTC Health Program regulations in 42 CFR Part 88 as “currently identified responders” and “currently identified survivors.” In addition to those currently identified WTC responders and survivors already enrolled, the PHS Act
As it is not possible to identify an upper bound estimate, HHS has modeled another possible point on the continuum. For the purpose of calculating the impact of an increased rate of cancer on the WTC Health Program, this analysis assumes that the entire statutory cap for new WTC responders (25,000) and WTC survivors (25,000) will be filled. Accordingly, this estimate is based on a population of 80,000 responders (55,000 currently identified + 25,000 new) and 30,000 survivors (5,000 currently identified + 25,000 new). The upper cost estimate also assumes an overall increase in population cancer rates of 21 percent due to 9/11 exposure,
HHS acknowledges that some cancer cases are not likely to have been caused by exposure to 9/11 agents. The certification of individual cancer diagnoses will be conducted on a case-by-case basis, after consideration of the individual responder's or survivor's exposure to 9/11 agents and the temporal sequence of symptoms. However, for the purpose of this analysis, HHS has estimated that all diagnosed cancers proposed to be added to the List will be certified for treatment by the WTC Health Program. Finally, because there are no existing data on cancer rates related to exposure to 9/11 agents at either the Pentagon or in Shanksville, Pennsylvania, HHS has used only data from studies of individuals who were responders or survivors in the New York City disaster area. HHS invites comment on this approach.
HHS estimated the treatment costs associated with covering the select types of cancer proposed in this rulemaking using the methods described below. In the following discussion, the category of “Head and Neck” includes all cancer cases from nasal cavity, nasopharynx, accessory sinuses, and larynx. The survival rates for all cancers in the “Head and Neck” category were approximated using survival rates for cancer of the larynx. The category described as “Lung” in this discussion includes cancer of the trachea, bronchus and lung, heart, mediastinum and pleura, and other sites in the respiratory system and intrathoracic organs. Treatment costs for all respiratory system cancers including “mesothelioma” were approximated by treatment costs for lung cancer. Costs of treatment for the “digestive system” were approximated using the costs of gastric cancer; costs for cancer of the “skin” were approximated using costs for melanoma of the skin; “female reproductive organs” were
The WTC Health Program obtained data for the cost of providing medical treatment for each cancer type. The costs of treatment for each type of cancer are described in Table 1. The costs of treatment are divided into three phases: the costs for the first year following diagnosis, the costs of intervening years or continuing treatment after the first year, and the costs of treatment for the last year of life. The first year costs of cancer treatment are higher due to the initial need for aggressive medical (
These cost figures were based on a study of elderly cancer patients from Surveillance, Epidemiology, and End Results (SEER) program maintained by the National Cancer Institute, using Medicare files.
HHS estimated the expected number of cases of cancer that would be observed in a cohort of responders and survivors followed for cancer incidence after September 11, 2001 using U.S. population cancer rates for the cancer types proposed to be added to the List of WTC-Related Health Conditions under this rulemaking. Demographic characteristics of the cohort were assigned since the actual data are not available for individuals in the responder and survivor populations who have not yet enrolled in the WTC Health Program. Gender and age (at the time of exposure) distributions for responders and survivors were assumed to be the same as current enrollees in the WTC Health Program. According to WTC Health Program data, males comprise 88 percent of the current responder enrollees and 50 percent of survivor enrollees. The age distribution for current enrollees by gender and responder/survivor status is presented in Table 2.
HHS assumed race and ethnic origin distributions for responders and survivors according to distributions in the WTC Health Registry cohort:
To determine the potential number of persons in the responder and survivor populations with cancer, HHS used the number of incident cases described above for each year starting with 2002, and estimated the prevalence of cancer using survival rate statistics for each incident cancer group through 2016.
Using the incident cases and survival rate statistics for each cancer type, HHS has estimated the prevalence (number of persons living with cancer) of cases during the 15 year period (2002–2016) since September 11, 2001. The resulting table provides for each year from 2002 through 2016, the number of new cases occurring in that year (incidence), the number of individuals who died from their cancer in that year, and the number of persons surviving up to 15 years beyond their first diagnosis with one table for each type of cancer (prevalence).
Prevalence tables were created for each type of covered cancer and the results are summarized in Tables 5, and 7. This analysis considers cancers diagnosed in 2002 through 2016.
To compute the costs for each type of cancer, HHS assumes that all of the individuals who are diagnosed with a cancer type will be certified by the WTC Health Program for treatment and monitoring services. The treatment costs for the first year of treatment (Table 1, year adjusted) were applied to the predicted newly incident (Year 1) cases for each year. Likewise, the costs of treatment for the last year of life were applied in each year to the number of people predicted to die from their cancer in that year. The costs of continuing treatment from Table 1 were applied to the number of prevalent cases who had survived their cancers beyond their year of diagnosis, for each year of survival (Year 2–15).
Using this procedure, a cost table is constructed for each year covered by the WTC Health Program. Table 4 provides an illustrative example for lung cancer. The row for Year 1 is the cost of incident cases for that year. Rows 2–15 show the cost from continuing care for persons surviving n-years beyond the year of diagnosis. Finally, the cost of last year of life treatment is computed by multiplying the cost for last year of life from Table 1 by the number of persons dying in that year from that type of cancer.
The sum of the annual costs for the years 2013 through 2016 represents the estimated treatment costs to the WTC Health Program for coverage of lung cancer for 80,000 responders. The cost projections in Table 4 are based on an assumed responder population size of 80,000.
The same process described above was applied to the survivor cohort. Based on the incidence rate expected from the survivor cohort, prevalence tables were constructed for each covered type of cancer.
The estimated treatment costs for responders and survivors were re-computed under two assumptions: (1) Assuming the rate of cancer in the WTC Health Program is equal to the rate of cancer observed in the general population; and (2) assuming the rate of cancer exceeds the general population rate by 21 percent due to their exposures in the New York City disaster area.
A summary of the estimated prevalence at the U.S. population average for the assumed population of 55,000 responders and 5,000 survivors is provided in Table 5. A summary of the estimated treatment costs to the WTC Health Program is provided in Table 6.
A summary of the estimated prevalence using cancer rates 21 percent over the U.S. population average for the increased rate of 80,000 responders and 30,000 survivors is given in Table 7. A summary of the estimated treatment costs to the WTC Health Program is provided in Table 8.
Because HHS lacks data to account for either recoupment by health insurance or workers' compensation insurance or reduction by Medicare/Medicaid payments, the estimates offered here are reflective of estimated WTC Health Program costs only. This analysis offers an assumption about the number of individuals who might enroll in the WTC Health Program, and estimates the impact of a low rate of cancer (U.S. population average rate), and an increased rate (21 percent greater than the U.S. population average) on the number of cases and the resulting estimated treatment costs to the WTC Health Program. This analysis does not include administrative costs associated with certifying additional diagnoses of cancers that are WTC-related health conditions that might result from this action. Those costs were addressed in the interim final rule that established regulations for the WTC Health Program (76 FR 38914, July 1, 2011).
Costs and transfers of screening have been added to the summary estimates. The screening proposed by this rulemaking follows U.S. Preventive Services Task Force (USPSTF) guidelines.
The USPSTF recommends screening for colorectal cancer (cancer of the colon and rectum) using fecal occult blood testing (FOBT), sigmoidoscopy, or colonoscopy, in adults, beginning at age 50 years and continuing until age 75 years.
FECA Rates for FOBT, sigmoidoscopy and colonoscopy at non-facility rates: codes 82270, 45330, and 45378 respectively.
The USPSTF recommends breast cancer screening using biennial mammography for women beginning at age 40. HHS assumed that the population of responders was 12 percent female and the population of survivors was 50 percent female. Based on age distribution information available, HHS estimated the number of women eligible for screening between 2013 and 2016. For those screened in 2013 HHS predicted repeat screening in 2015 and for those screened in 2014 HHS predicted repeat screening in 2016. The cost of a mammogram was estimated at $139.32 based on FECA rates for mammography.
Some responders and survivors enrolled or expected to enroll in the WTC Health Program already have or have access to medical insurance coverage by private health insurance, employer-provided insurance, Medicare, or Medicaid. Therefore, costs to the WTC Health Program can be divided between societal costs and transfer payments.
To describe these societal costs and transfers, the following assumptions were used. For the period of coverage between January 1, 2013 and December 31, 2013, HHS has assumed that 16.3 percent of the survivor population will be uninsured, or based on grandfathered enrollment of responders, 16,925 are covered by the FDNY health plan, while 39,482 are listed as general responders and include construction workers, contractors, and others. For this analysis, HHS assumed that the non-FDNY general responders and all future responder-enrollees are uninsured at the same 16.3 percent rate that HHS applied to the survivor population, based on those without insurance coverage in the general U.S. population.
Additionally, after the implementation of provisions of the Patient Protection and Affordable Care Act (Pub. L. 111–148) on January 1, 2014, all of the enrollees and future enrollees can be assumed to have or have access to medical insurance coverage other than through the WTC Health Program. Therefore, all treatment costs to be paid by the WTC Health Program from 2014 through 2016 are considered transfers.
Table 9 describes the allocation of WTC Health Program costs between societal costs and transfer payments based on 55,000 responders and 5,000 survivors. Table 10 describes the allocation of WTC Health Program costs between societal costs and transfer payments based on 80,000 responders and 30,000 survivors.
This section describes qualitatively the potential benefits of the proposed rule in terms of the expected improvements in the health and health-related quality of life of potential cancer patients treated through the WTC Health Program, compared to no Program. The assessment of the health benefits for cancer patients uses the number of expected cancer cases that was estimated in the cost analysis section.
HHS does not have information on the health of the population that may have been exposed to 9/11 agents and is not currently enrolled in the WTC Health Program. In addition, HHS has only limited information about health insurance and health care services for cancers caused by exposure to 9/11 agents and suffered by any population of responders and survivors, including responders and survivors currently enrolled in the WTC Health Program and responders and survivors not enrolled in the Program. For the purposes of this analysis, HHS assumes that broad trends on demographics and access to health insurance reported by the U.S. Census Bureau and health care services for cancer similar to those reported by Ward would apply to the population of general responders (those individuals who are not members of the FDNY and who meet the eligibility criteria in 42 CFR Part 88 for WTC responders) and survivors both within and outside the Program. For the purposes of this analysis, HHS assumes that access to health insurance and health care services for FDNY responders within and outside the Program would be equivalent because this population is overwhelmingly covered by employer-based health insurance.
Although HHS cannot quantify the benefits associated with the WTC Health Program, enrollees with cancer are expected to experience a higher quality of care than they would in the absence of the Program. Mortality and morbidity improvements for cancer patients expected to enroll in the WTC Health Program are anticipated because barriers may exist to access and delivery of quality health care services for cancer patients in the absence of the services provided by the WTC Health Program. HHS anticipates benefits to cancer patients treated through the WTC Health Program, who may otherwise not have access to health care services (16.3 percent of general responders and survivors who are expected to be uninsured), to accrue in 2013. Starting in 2014, continued implementation of the Affordable Care Act will result in increased access to health insurance and health care services will improve for the general responder and survivor population that currently is uninsured. HHS is requesting public comment on issues relating to access to care, quality of care, and the potential benefits associated with the WTC Health Program.
The analysis presented here was limited by the dearth of verifiable data on the cancer status of responders and survivors who have yet to apply for enrollment in the WTC Health Program. Because of the limited data, HHS was not able to estimate benefits in terms of averted healthcare costs. Nor was HHS able to estimate administrative costs, or indirect costs, such as averted absenteeism, short and long-term disability, and productivity losses averted due to premature mortality.
As discussed in section III.D.2., above, the Administrator considered alternative approaches to the methods set forth in this rulemaking.
One alternative would involve a presumption that 9/11 exposures could have resulted in the development of
Another alternative would be to rely on epidemiologic studies of the association of 9/11 exposures and the development of cancer or a type of cancer in 9/11-exposed populations
By expanding the scope of scientific information reviewed to include three complementary methods (including studies in 9/11 exposed populations and generally available epidemiologic criteria), the Administrator has developed a hierarchy of methods to guide consideration of whether to include types of cancers on the List of WTC-Related Health Conditions.
HHS finds that this rulemaking also has an effect on the VCF
Under the VCF program, compensation awards are generally calculated using three components: Economic loss
The statute caps the total amount of funds allocated to the VCF. The VCF regulation at 28 CFR 104.51 provides that, “the total amount of Federal funds paid for expenditures including compensation with respect to claims filed on or after October 3, 2011, will not exceed $2,775,000,000. Furthermore, the total amount of Federal funds expended during the period from October 3, 2011, through October 3, 2016, may not exceed $875,000,000.”
To meet these requirements, the Special Master is authorized to reduce the amount of compensation due to each claimant by prorating the total amount of the compensation award determined for each individual claimant. The VCF intends to establish the fraction for proration such that all claimants receive some payment related to their claim within the overall funding limitation of the program. The Special Master may adjust the percentage of the total award that is to be paid to eligible claims based on experiential information as well as estimates related to potential future claims and availability of funds.
The amount of compensation that would be awarded to each of the living claimants who develop, or the heirs of those who died from, a covered type of cancer during the years 2002 through 2016, would be determined by individual factors considered under the VCF. Depending on the total number of new claims and compensation eligibility, the overall impact on the VCF of increasing the number of eligible VCF claimants as a result of adding eligible health condition under the WTC Health Program may be to reduce the proration fraction that is applied to all VCF claimants such that the total cost to the government remains unchanged. The additional costs to the VCF due to processing and computing the entitlement for the extra claimants eligible as a result of having a covered type of cancer, plus the costs of paying newly covered claimants their prorated share of the compensation award, would result in amounts that will not be available to pay increased shares for the claimants with non-cancer conditions.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
The WTC Health Program has contracted with the following healthcare providers and provider network managers to offer treatment and monitoring to enrolled responders and survivors: Seven Clinical Centers of Excellence (CCE), which serve responders and survivors in the New York City metropolitan area (City of New York Fire Department; Mount Sinai School of Medicine; Research Foundation of State University of New York; New York University, Bellevue Hospital Center; University of Medicine and Dentistry of New Jersey; Long Island Jewish Medical Center; and New York City Health and Hospitals Corporation); Logistics Health Incorporated, which manages the nationwide provider network for populations geographically distant from New York City; three Data Centers, which analyze CCE data and coordinate activities (City of New York Fire Department; Mount Sinai School of Medicine; and New York City Health and Hospitals Corporation); and Emdeon, which manages pharmacy benefits.
Of these entities, six of the seven CCEs and two of the three Data Centers are hospitals (NAICS 622110—General Medical and Surgical Hospitals). The Small Business Administration (SBA) identifies as a small business those hospitals with average annual receipts below $34.5 million; none of the six fall below the SBA threshold for small businesses. The City of New York Fire Department's Bureau of Health Services, which provides medical monitoring and treatment for FDNY members as a CCE, and provides data analysis and other services for the FDNY CCE as a Data Center, is considered a local government agency (NAICS 922160—Fire Protection), and as such cannot be considered a small entity by SBA. Finally, neither Logistics Health Incorporated, which manages the national provider network, nor Emdeon, which manages pharmacy benefits, (NAICS 551112—Management of Companies and Enterprises) falls below
Because no small businesses are impacted by this rulemaking, HHS certifies that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. Therefore, a regulatory flexibility analysis as provided for under RFA is not required.
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501
As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
This proposed rule has been drafted and reviewed in accordance with Executive Order 12988, “Civil Justice Reform,” and will not unduly burden the Federal court system. This rule has been reviewed carefully to eliminate drafting errors and ambiguities.
HHS has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule does 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.”
In accordance with Executive Order 13045, HHS has evaluated the environmental health and safety effects of this proposed rule on children. HHS has determined that the rule would have no environmental health and safety effect on children, although an eligible child who has been diagnosed with a cancer type specified in this rulemaking may seek certification of the condition by the Administrator.
In accordance with Executive Order 13211, HHS has evaluated the effects of this proposed rule on energy supply, distribution or use, and has determined that the rule will not have a significant adverse effect.
Under Public Law 111–274 (October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. HHS has attempted to use plain language in promulgating the proposed rule consistent with the Federal Plain Writing Act guidelines and requests comment from the public regarding this requirement.
Aerodigestive disorders, Appeal procedures, Cancer, Health care, Mental health conditions, Musculoskeletal disorders, Respiratory and pulmonary diseases.
For the reasons discussed in the preamble, the Department of Health and Human Services proposes to amend 42 CFR part 88 as follows:
1. The authority citation for Part 88 continues to read as follows:
42 U.S.C. 300mm–300mm–61, Pub. L. 111–347, 124 Stat. 3623.
2. Amend § 88.1 by adding paragraph (4) to the definition of “List of WTC-related health conditions” to read as follows:
(4) Cancers: This list includes those individual cancer types specified in Table 1, below, according to the International Classification of Diseases, 10th Edition (ICD–10) and International Classification of Diseases, 9th Edition (ICD–9).