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Office of Personnel Management.
Interim final rule.
The United States Office of Personnel Management (OPM) is issuing an interim final rule to amend the Federal Employees Health Benefits Program (FEHB) regulations to make certain firefighters hired under a temporary appointment eligible to be enrolled in a health benefits plan under the FEHB.
This rule is effective July 17, 2012. OPM must receive comments on or before September 17, 2012.
Send written comments to Michael W. Kaszynski, Senior Policy Analyst, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 3415, 1900 E Street NW., Washington, DC; or FAX to (202) 606-4640 Attn: Michael Kaszynski. You may also submit comments using the Federal eRulemaking Portal:
Michael W. Kaszynski at
This interim final rule immediately extends eligibility for health insurance coverage under the Federal Employees Health Benefits (FEHB) program to temporary firefighters and fire protection personnel. The federal government has a critical need to hire and quickly deploy qualified firefighters and other fire protection personnel to areas of the country where disasters caused by man or nature require their services. The federal agencies that routinely deploy firefighters to respond to these disasters, including the Departments of Agriculture and Interior, have used temporary appointment authorities to bring firefighting personnel on board, as these authorities provide the flexibility they need to quickly increase their firefighting workforce to address wildfire emergencies and then to decrease the workforce when the emergencies are resolved.
Pursuant to 5 U.S.C. 8913(b), OPM has broad authority to prescribe the conditions under which employees are eligible to enroll in the FEHB program and is empowered to include or exclude employees on the basis of the nature and type of their employment or conditions pertaining to their appointments, including the duration of the appointment. Under current OPM regulations, individuals serving under temporary appointments have generally been excluded from coverage, with limited exceptions not relevant here. Accordingly, the only circumstances under which temporary employees previously could secure coverage under the FEHB program are those set forth in 5 U.S.C. 8906a, which allows temporary employees who have completed one full year of continuous employment to secure coverage at their own expense. Temporary firefighters and fire protection personnel do not generally qualify for coverage under 5 U.S.C. 8906a because they do not work for full one-year periods. Thus, they are not eligible for coverage under the FEHB program at all. This regulation would for the first time provide FEHB coverage to these firefighters and fire protection personnel, as well as their families, pursuant to OPM's broad regulatory authority under 5 U.S.C. 8913(b), allowing them to obtain health insurance through their employer.
OPM believes that the extension of this coverage is appropriate because firefighters face unique hazards and risks to their health. The day-to-day job of a firefighter involves frequent exposure to environmental risk factors that can precipitate the onset of severe and life-threatening diseases like cancer. Guidotti TL,
Although firefighters are eligible for worker's compensation for injuries suffered on the job, they nonetheless have a heightened need for health insurance coverage, so that they can obtain preventive care and benefit from early detection of the chronic and life-threatening conditions from which they face increased risk, in addition to receiving treatment for illnesses and injuries from which they are currently suffering. Providing firefighters coverage under the FEHB program acknowledges the unique hazards and increased risks they face for their Federal service and enhances the quality of their lives by ensuring they have access to the medical benefits necessary to promote prevention and early intervention and treatment for diseases that cannot be prevented.
In addition, in order to protect the public health and safety, the Departments of Agriculture and Interior have a critical need this year, as in many years, for experienced firefighting personnel. They wish not only to recruit experienced firefighters this year, but also to maintain their interest in returning to serve during subsequent fire seasons. Offering health insurance coverage will provide additional assurances that these Departments will continue to successfully recruit and retain qualified firefighters and fire protection personnel for this and future fire seasons. OPM is committed to making the process for signing up for FEHB coverage simple and streamlined so that the firefighters covered by this
OPM recognizes that there may be other groups of employees not currently covered by the FEHB program because of the temporary nature of their appointments, but who are similarly situated to firefighting personnel in that they perform emergency response services. Accordingly, OPM has also added a new subsection (i) to its regulations that permits agencies to request that OPM extend FEHB coverage to such employees. OPM intends to construe this subsection narrowly, applying it only to employees who are engaged in emergency response services similar to the services being performed by those responding to the wildfires, and only when requested by their employing agencies. OPM will issue guidance to assist agencies in implementing this provision. Agencies may submit requests to OPM under this provision after OPM issues its guidance.
Finally, OPM is also soliciting comments from the public regarding whether it should explicitly provide FEHB coverage under subsection (h) to additional employees who are currently ineligible under the provisions of subsection (c), but who perform similar emergency response services, including certain employees who are appointed pursuant to Section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)) to respond to major disasters and emergencies declared by the President.
OPM is issuing this regulation as an interim final rule. Under section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.), an agency may issue a final rule without first publishing a general notice of proposed rulemaking when it determines, for good cause, that notice and public comment are impracticable, unnecessary, or contrary to the public interest. We have determined that this standard is satisfied.
The United States is experiencing an active wildfire season. Not only are tens of thousands of acres in Western states being blackened, but the wildfires are creating significant environmental damage and health hazards. Water quality, for example, is being compromised up to 100 miles from the burn. Big fires have significant consequences, especially for air quality. A series of large wildfires in Canada in 1995 created massive plumes of carbon monoxide that drifted south through Boston, New York and Washington. The 2003 wildfire season in California caused such a substantial increase in particulate matter, carbon monoxide and nitrous oxide that the fires polluted the air quality outside and inside homes as well. Forest fires can also result in large releases of sediment into rivers and streams, which can clog reservoirs and undermine the quality of drinking water. Therefore, the federal government has a critical need to hire and deploy qualified firefighters to serve the American people.
Moreover, the firefighters and fire protection personnel are putting their lives on the line and voluntarily exposing themselves to hazardous working conditions every day. They have an immediate need for health insurance coverage to obtain preventive care and to allow for early detection of potentially serious conditions, in addition to addressing any health issues that arise during this fire season. Allowing these men and women the opportunity to obtain health insurance coverage will help them to protect themselves and their families.
Because of these conditions, OPM has determined that it would be impracticable, unnecessary, and contrary to the public interest to delay putting the provisions of this interim final regulation in place until a public notice and comment process has been completed. We find good cause to waive the notice of proposed rulemaking and to issue this final rule on an interim basis. We will accept public comments on this interim final rule for 60 days.
We are also dispensing with the usual requirement that a new rule not take effect until 30 days after it is issued. Instead, this rule is effective immediately upon public display. Immediate effectiveness is authorized because this is a substantive rule granting an exception to the prohibition on providing health insurance coverage to temporary employees.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only adds additional groups to the list of groups eligible for coverage under FEHB.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.
Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement.
Accordingly, OPM is amending 5 CFR part 890 as follows:
5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.
(h) Notwithstanding paragraphs (c)(1) and (2) of this section, an employee who is in a position identified by OPM that provides emergency response services for wildland fire protection is eligible to be enrolled in a health benefits plan under this part.
(i) Notwithstanding paragraphs (c)(1) and (2) of this section, upon request by the employing agency, OPM may grant eligibility to employees performing similar types of emergency response services to enroll in a health benefits plan under this part.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain aircraft equipped with Honeywell International, Inc. Model KGS200 Mercury
This AD is effective July 19, 2012.
We must receive comments on this AD by September 4, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
•
•
We received a report that during flight test trials of SBAS-capable aircraft using a similar Honeywell GPS sensor with the same software as the Honeywell International, Inc. Model KGS200 Mercury
Investigation found the GPS receiver could compute an incorrect ionospheric correction and error estimate such that the error estimate no longer bounds the error and the downstream monitor cannot detect it. This can potentially lead to hazardously misleading information.
The software problem is due to a mathematical rounding error, which results in misleading information.
At this time, the only type-certificated airplanes that the product is installed in is Pilatus PC-12/47E airplanes.
This condition, if not corrected, could result in misleading information during instrument meteorological conditions, which could prevent the aircraft from performing safe instrument approach procedures, causing controlled flight into terrain.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires incorporating airworthiness limitations and placards that prohibit LP, LPV, and SBAS LNAV/VNAV approaches until the software problem is corrected.
We consider this AD interim action. If and when new software is developed, the FAA will evaluate this software and may take further rulemaking action.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because this condition, if not corrected, could result in misleading information during instrument meteorological conditions, which could prevent the aircraft from performing safe instrument approach procedures, causing controlled flight into terrain. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 195 GNSSU installed on, but not limited to,
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 19, 2012.
None.
(1) This AD applies to all Honeywell International, Inc. Model KGS200 Mercury
(2) This product is installed on, but not limited to, PILATUS AIRCRAFT LTD. Model PILATUS PC-12/47E airplanes, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 3457, Navigation.
This AD was prompted by a report and follow-up investigation of a software problem that occurred during flight test trials of satellite based augmentation system (SBAS)-capable aircraft using a similar Honeywell global positioning system (GPS) sensor and the same software as the Model KGS200 Mercury
Comply with this AD within the compliance times specified, unless already done.
(1) Before further flight after July 19, 2012 (the effective date of this AD), incorporate language into the limitations section of the aircraft flight manual (AFM) that states, “localizer performance (LP), localizer performance with vertical guidance (LPV), and satellite based augmentation system (SBAS) lateral navigation/vertical navigation (LNAV/VNAV) approach operations are prohibited.” If it can be determined by a review of the AFM that the aircraft does not have LP capability and uses barometric vertical navigation (VNAV), then it is permissible to incorporate language into the limitation section of the AFM that states, “local performance with vertical guidance (LPV) approaches are prohibited.”
(2) The AFM action required by this AD may be done by an owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9 (a)(1)(4) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR §§ 91.173, 121.380, or 135.439.
(1) Within 3 days after July 19, 2012 (the effective date of this AD), fabricate and install a placard that states, “LP, LPV, and SBAS LNAV/VNAV approaches are prohibited.” If it can be determined by a review of the AFM that the aircraft does not have LP capability and uses VNAV, then it is permissible to use a placard that states, “LPV approaches are prohibited.”
(2) The placard shall be manufactured so that the font size is at least an
Special flight permits are prohibited for this AD.
(1) The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19,
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact:
(1) Non-Pilatus aircraft-related: Albert Ma, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, 1801 S. Airport Road, Room 100, Wichita, Kansas 67209; phone: (316) 946-4151; fax: (316) 946-4107; email:
(2) Pilatus aircraft-related: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; fax: (816) 329-4090; email:
None.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting an airworthiness directive (AD) superseding an existing airworthiness directive for Bell Helicopter Textron Canada (Bell) Model 407 and 427 helicopters. The existing AD requires inspecting certain hydraulic servo actuators (servo) to determine whether the shaft turns independently of the nut or the clevis assembly, and additional actions based upon the inspection's outcome. The AD also requires reidentifying the servo. Since we issued that AD, Bell has learned that additional servos may need repair or removal. This AD expands the scope of the current AD to include inspections for all servos, and requires that servos meeting inspection requirements be marked with the letter “V” after the part number on the data plate. The actions are intended to detect any loose or misaligned parts in the servo that could lead to failure of the servo and subsequent loss of helicopter control.
This AD becomes effective August 3, 2012.
We must receive comments on this AD by September 17, 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 AD, contact contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at
Matt Wilbanks, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222-5110; email
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.
On September 19, 2011, we issued AD 2011-15-51, Amendment 39-16817 (76 FR 66609, October 27, 2011) for Bell Model 407 helicopters with a servo, part number (P/N) 206-076-062-105 or 206-076-062-107, and Bell Model 427 helicopters, with a servo, P/N 206-076-062-109 or 206-076-062-111, installed. This AD requires inspecting certain servos to determine whether the shaft turns independently of the nut or the clevis assembly. If the shaft turns independently, this AD requires replacing the servo with an airworthy servo. If the shaft does not turn independently, the AD requires inspecting to determine the condition of the lock washers. Based on the condition of the lock washers, the AD requires either replacing the servo with an airworthy servo or bending the tab of the lock washer flush against a flat surface of the nut or clevis assembly. The AD also requires reidentifying the servo by metal-impression stamping or vibro-etching “67-01” onto the modification plate. The AD was prompted by a report that a supplier had a “quality escape” resulting in servos with a loose nut, shaft, and clevis assembly because of improper lock-washer installation. An investigation after an accident revealed the clevis nut on the servo was loose. Transport Canada, which is the aviation authority for Canada, notified the FAA of this
Since we issued AD 2011-15-51 (76 FR 66609, October 27, 2011), Transport Canada issued AD No. CF-2011-17R1, dated December 19, 2011 (AD CF-2011-17R1), which supersedes AD CF-2011-17, to correct an unsafe condition for the Bell Model 407, serial numbers 53000 through 53900, 53911 through 53999, and 54000 through 54081, equipped with servos, P/N 206-076-062-105 or P/N 206-076-062-107; and Model 427 helicopters, serial numbers 56001 through 56077, 58001 and 58002, equipped with servos, P/N 206-076-062-109 or P/N 206-076-062-111. Transport Canada advises that additional servos may have a loose nut, shaft, and clevis assembly after the supplier's “quality escape.” Therefore, Transport Canada revised its original AD to include all installed servos, and to require that servos already inspected according to its original AD be reidentified with the letter “V” at the end of the part number on the data plate.
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport Canada, its technical representative, has notified us of the unsafe condition described in its AD. We are issuing this AD because we evaluated all information provided by Transport Canada and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.
We reviewed Bell Alert Service Bulletin (ASB) 407-11-96, Revision B, for the Model 407 helicopter, and Bell ASB 427-11-35, Revision B, for the Model 427 helicopter. Both ASBs are dated August 29, 2011 and describe procedures for performing a one-time inspection of the servos before further flight, and reidentifying servos that meet all of the inspection requirements. Transport Canada classified this service information as mandatory and issued AD No. CF-2011-17R1 to ensure the continued airworthiness of these helicopters.
This AD retains the inspection requirements of AD 2011-15-51 (76 FR 66609, October 27, 2011), and adds a requirement to mark the letter “V” at the end of the part number on the data plate if the servo meets all of the inspection's requirements. This AD also expands the applicability to all servos.
We estimate that this AD will affect 582 helicopters of U.S. Registry and that labor costs will average $85 a work hour. Based on these estimates, we expect the following costs:
• The required inspection will take about a
• Replacing the servo, if needed, will require 2 work hours for a labor cost of $170. Parts will cost $33,000 for a total cost of $33,170 per helicopter.
Providing an opportunity for public comments before adopting these AD requirements would delay implementing the safety actions needed to detect any loose or misaligned parts in the servo, the failure of which could adversely affect control of the helicopter. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the required corrective actions must be accomplished before further flight.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to the following helicopters, certificated in any category:
(1) Model 407 helicopters, serial numbers (S/Ns) 53000 through 53900, 53911 through 53999, and 54000 through 54081, with a hydraulic servo actuator assembly (servo) part number (P/N) 206-076-062-105 or P/N 206-076-062-107; and
(2) Model 427 helicopters, S/Ns 56001 through 56077, 58001, and 58002, with a servo, P/N 206-076-062-109 or P/N 206-076-062-111.
This AD defines the unsafe condition as a loose or misaligned part in the servo that
This AD supersedes AD 2011-15-51, Amendment 39-16817 (76 FR 66609, October 27, 2011).
This AD becomes effective August 3, 2012.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Before further flight, conduct a one-time visual inspection of the servo by doing the following:
(i) Retract the boot depicted as 230 in Figure 1 to Paragraph (f) of this AD.
(ii) Applying only hand pressure, determine whether the nut, the shaft, or the clevis assembly, depicted as items 225, 215 and 205, respectively, in Figure 1 to Paragraph (f) of this AD, turn independently. If the shaft turns independently of the nut or clevis assembly, before further flight, replace the servo with an airworthy servo.
(iii) If the shaft does not turn independently, inspect to determine if at least one tab of the lock washer is bent flush against a flat surface of the nut and if at least one tab of the lock washer is bent flush against a flat surface of the clevis assembly.
(iv) If at least one lock washer tab is not aligned and bent flush with a nut flat surface and at least one lock washer tab is not aligned and bent flush with a flat surface of the clevis assembly, before further flight, replace the servo with an airworthy servo.
(v) If any tab of the lock washer is not bent flush against either a flat surface of the nut or clevis assembly, bend the tab flush against a flat surface.
(2) After accomplishing paragraphs (f)(1)(i) through (f)(1)(v), vibro-etch the letter “V” at the end of the part number on the data plate.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Wilbanks, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 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.
(1) Bell Helicopter Alert Service Bulletins 407-11-96 and 427-11-35, both Revision B and both dated August 29, 2011, which are not incorporated by reference, contain additional information about the subject of this AD. For service information identified in this AD, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at
(2) The subject of this AD is addressed in Transport Canada AD CF-2011-17R1, dated December 19, 2011.
Joint Aircraft Service Component (JASC) Code: 6730, Rotorcraft Servo System.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding an existing airworthiness directive (AD) for all Pratt & Whitney Division PW4074 and PW4077 turbofan engines. That AD currently requires removing the 15th stage high-pressure compressor (HPC) disk within 12,000 cycles since new (CSN) or using a drawdown removal plan for disks that exceed 12,000 CSN. This new AD requires the same actions and clarifies that 15th stage HPC disks that have accumulated more than 9,865 CSN require a borescope inspection (BSI) or eddy current inspection (ECI) of the disk outer rim front rail for cracks prior to accumulating 12,000 CSN. This AD was prompted by a request from an operator that we clarify our inspection schedule for 15th stage HPC disks that have accumulated more than 9,865, but less than 12,000 CSN, on the effective date of the AD. We are issuing this AD to prevent cracks from propagating into the disk bolt holes, which could result in a failure of the 15th stage HPC disk, uncontained engine failure, and damage to the airplane.
This AD is effective August 23, 2012.
The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of September 8, 2011 (76 FR 47056, August 4, 2011).
For service information identified in this AD, contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; phone: 860-565-7700; fax: 860-565-1605. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 16 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
You may examine the AD docket on the Internet at
Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7178; fax: 781-238-7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011-14-07, Amendment 39-16742 (76 FR 47056, August 4, 2011). That AD applies to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We have considered the comments received. United Airlines and The Boeing Company support the NPRM.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed.
We estimate that this AD will affect 44 engines installed on airplanes of U.S. registry. Prorated parts life will cost about $66,000 per 15th stage HPC disk. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $2,904,000. The new requirements of this AD add no additional economic burden.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I,
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective August 23, 2012.
This AD supersedes AD 2011-14-07, Amendment 39-16742 (76 FR 47056, August 4, 2011).
This AD applies to Pratt & Whitney Division PW4074 and PW4077 turbofan engines with 15th stage high-pressure compressor (HPC) disks, part number (P/N) 55H615, installed.
This AD results from multiple shop findings of cracked 15th stage HPC disks. We are issuing this AD to prevent cracks from propagating into the disk bolt holes, which could result in a failure of the 15th stage HPC disk, uncontained engine failure, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done. To perform the inspections, use paragraph 1.A. or 1.B. of the Accomplishment Instructions “For Engines Installed on the Aircraft” or 1.A. or 1.B. of the Accomplishment Instructions “For Engines Removed from the Aircraft,” of Pratt & Whitney Service Bulletin PW4G-112-72-309, Revision 1, dated July 1, 2010.
(1) For 15th stage HPC disks that have 9,865 or fewer cycles since new (CSN) on the effective date of this AD, remove the disk from service before accumulating 12,000 CSN.
(2) For 15th stage HPC disks that have accumulated more than 9,865 CSN on the effective date of this AD, do one of the following:
(i) Remove the disk from service at the next piece-part exposure, not to exceed 2,135 cycles-in-service (CIS) after the effective date of this AD.
(ii) Perform a borescope inspection (BSI) or eddy current inspection (ECI) of the front rail of the disk outer rim according to the following schedule:
(A) Within 2,400 cycles-since-last fluorescent penetrant inspection or ECI, or
(B) Within 1,200 cycles-since-last BSI, or
(C) Before accumulating 12,000 CSN, or
(D) Within 55 CIS after the effective date of this AD, whichever occurs latest.
(3) If the BSI from paragraph (e)(2)(ii) of this AD indicates the presence of a crack in the disk outer rim front rail, but you cannot visually confirm a crack, perform an ECI within 5 CIS after the BSI.
(4) If you confirm a crack in the front rail of the disk outer rim using any inspection method, remove the disk from service before further flight.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
For more information about this AD, contact Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7178; fax: 781-238-7199; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Pratt & Whitney Service Bulletin PW4G-112-72-309, Revision 1, dated July 1, 2010, approved for IBR September 8, 2011.
(ii) Reserved.
(3) For Pratt & Whitney service information identified in this AD, contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; phone: 860-565-7700; fax: 860-565-1605.
(4) You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 16 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
(5) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This action amends the legal descriptions of Jet Routes J-45 and J-79, and VHF omnidirectional range (VOR)
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.
Vero Beach Municipal Airport, FL, is located 4.1 NM southwest of the Vero Beach VORTAC. The airport and the VORTAC have the same name and three-letter identifier (VRB) which has caused some safety concerns. Cases have recently been observed where GPS-equipped aircraft have navigated via the VRB Airport rather than the VRB VORTAC as intended. To preclude this in the future, the name of the VORTAC is being changed to Treasure VORTAC with the new three-letter identifier “TRV.”
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the legal descriptions of Jet Routes J-45 and J-79; and VOR Federal Airways V-3, V-51, V-159, V-225, V-295 and V-537, to reflect the name change of one of the navigation aids used to define the routes. To eliminate confusion, and potential flight safety issues, the Vero Beach VORTAC is renamed the Treasure VORTAC and is assigned a new three-letter identifier (TRV). The VORTAC name change does not alter the current alignment of the affected routes.
Additionally, in the J-45 description, the words “Virginia Key” are inserted between the words “Virginia Key, FL,” and “INT 014°” to indicate that the 014° radial is referenced from the Virginia Key VOR/DME. The description of V-3 is amended by inserting the word “Quebec” before the words “PQ, Canada.” In V-51, the “Pahokee 009°” radial is changed to the “Pahokee 010°” radial. J-45, V-3 and V51 are all currently charted correctly and these changes simply correct unintended omissions from the descriptions of J-45 and V-3, and a one degree radial error in V-51.
Since this action merely involves editorial changes in the legal descriptions of the above ATS routes, and does not involve a change in the dimensions or operating requirements of the affected routes, I find that notice and public procedures under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it revises the legal descriptions of jet routes and airways in the vicinity of Vero Beach, FL to eliminate confusion.
Jet Routes are published in paragraph 2004; and Domestic VOR Federal Airways are published in paragraph 6010(a), respectively, of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The domestic Jet Routes and VOR Federal Airways listed in this document will be published subsequently in the Order.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 311a. This airspace action consists of editorial changes only and is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Virginia Key, FL, INT Virginia Key 014° and Treasure, FL, 143° radials; Treasure; INT Treasure 330° and Ormond Beach, FL, 183° radials; Ormond Beach; Craig, FL; Alma, GA; Macon, GA; Atlanta, GA; Nashville, TN; St Louis, MO; Des Moines, IA; Sioux Falls, SD; to Aberdeen, SD.
From Key West, FL; INT Key West 038° and Dolphin, FL, 244° radials; Dolphin; Palm Beach, FL; Treasure, FL; Ormond Beach, FL; INT Ormond Beach 356° and Savannah, GA, 184° radials; INT Savannah 184° and Charleston, SC, 212° radials; Charleston; Tar River, NC; Franklin, VA; Salisbury, MD; INT Salisbury 018° and Kennedy, NY, 218° radials; Kennedy; INT Kennedy 080° and Nantucket, MA, 254° radials; INT Nantucket 254° and Marconi, MA, 205° radials; Marconi; INT Marconi 006° and Bangor, ME, 206° radials; Bangor.
From Key West, FL; INT Key West 083° and Dolphin, FL, 191° radials; Dolphin; Ft. Lauderdale, FL; Palm Beach, FL; Treasure, FL; Melbourne, FL; Ormond Beach, FL; Brunswick, GA; INT Brunswick 014° and Savannah, GA, 177° radials; Savannah; INT Savannah 028° and Vance, SC, 203° radials; Vance; Florence, SC; Sandhills, SC; Raleigh-Durham, NC; INT Raleigh-Durham 016° and Flat Rock, VA, 214° radials; Flat Rock; Gordonsville, VA; INT Gordonsville 331° and Martinsburg, WV, 216° radials; Martinsburg; Westminster, MD; INT Westminster 048° and Modena, PA, 258° radials; Modena; Solberg, NJ; INT Solberg 044° and Carmel, NY, 243° radials; Carmel; Hartford, CT; INT Hartford 084° and Boston, MA, 224° radials; Boston; INT Boston 014°and Pease, NH, 185° radials; Pease; INT Pease 004° and Augusta, ME, 233° radials; Augusta; Bangor, ME; INT Bangor 039° and Houlton, ME, 203° radials; Houlton; Presque Isle, ME; to Quebec, PQ, Canada. The airspace within R-2916, R-2934, R-2935, and within Canada is excluded.
From Pahokee, FL; INT Pahokee 010° and Treasure, FL, 193° radials; Treasure; INT Treasure 330° and Ormond Beach, FL, 183° radials; Ormond Beach; Craig, FL; Alma, GA; Dublin, GA; Athens, GA; INT Athens, GA, 340° and Harris, GA, 148° radials; Harris; Hinch Mountain, TN; Livingston, TN; Louisville, KY; Nabb, IN; Shelbyville, IN; INT Shelbyville 313° and Boiler, IN, 136° radials; Boiler; Chicago Heights, IL.
From Virginia Key, FL: INT Virginia Key 344° and Treasure, FL, 178° radials; Treasure; INT Treasure 318° and Orlando, FL, 140° radials; Orlando; Ocala, FL; Cross City, FL; Greenville, FL; Pecan, GA; Eufaula, AL; Tuskegee, AL; Vulcan, AL; Hamilton, AL; Holly Springs, MS; Gilmore, AR; Walnut Ridge, AR; Dogwood, MO; Springfield, MO; Napoleon, MO; INT Napoleon 005° and St. Joseph, MO, 122° radials; St. Joseph; Omaha, NE; Sioux City, IA; Yankton, SD; Mitchell, SD; to Huron, SD.
From Key West, FL, 30 miles, 72 miles, 17 AGL, Lee County, FL; La Belle, FL; Treasure, FL. The portion of V-225 E alternate outside the United States has no upper limit.
From Virginia Key, FL; INT Virginia Key 014° and Treasure, FL, 143° radials; Treasure; INT Treasure 296° and Orlando, FL, 162° radials; Orlando; Ocala, FL; Cross City, FL; to Seminole, FL. The portion outside the United States has no upper limit.
From Palm Beach, FL; INT Palm Beach 356° and Treasure, FL, 143° radials; Treasure; INT Treasure 318° and Orlando. FL, 140° radials; INT Orlando 140° and Melbourne, FL 298° radials; INT Melbourne 298° and Ocala, FL 145° radials; Ocala; Gators, FL; Greenville, FL; Moultrie, GA; to Macon, GA.
Federal Aviation Administration (FAA), DOT.
Final rule, technical amendment.
This action amends Class E airspace at Grinnell Regional Airport, Grinnell, IA, by removing reference to the Grinnell NDB from the legal description, and amends the geographic coordinates of the airport. The Grinnell NDB has been decommissioned and is not needed as part of the airspace description. This action does not change the boundaries or operating requirements of the airspace.
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone 817-321-7716.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by removing reference to the Grinnell NDB from the legal description of Grinnell Regional Airport, Grinnell, IA, and amends the geographic coordinates of the airport to coincide with the FAA's aeronautical database. The Grinnell NDB has been decommissioned and is not needed as part of the airspace description. This is an administrative change and does not affect the boundaries, altitudes, or operating requirements of the airspace, therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of 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 amends controlled airspace at Grinnell Regional Airport, Grinnell, IA.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7.6-mile radius of Grinnell Regional Airport.
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This action amends the descriptions of 14 Jet Routes and 9 VOR Federal airways in the northeastern United States to reflect route changes made in Canadian airspace as part of Canada's Windsor-Toronto-Montreal airway project.
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.
NAV CANADA, which operates Canada's civil air navigation service, is implementing various changes to Canada's instrument flight rules (IFR) navigation infrastructure to enhance the efficiency of operations by taking advantage of both performance based navigation and modern avionics capabilities. The changes implemented by NAV CANADA affect parts of the descriptions of certain U.S. Jet Routes and VOR Federal airways that extend into Canadian airspace. As a result, editorial changes are required to these descriptions so that they match the changes made on the Canadian side of the border.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by updating the legal descriptions of U.S. Jet Routes J-46, J-94, J-95, J-488, J-500, J-531, J-546, J-553, J-560, J-566, J-586, J-588, J-594, and J-595; and VOR Federal airways V-31, V-91, V-98, V-104, V-145, V-282, V-346, V-423 and V-522, that include segments extending into Canadian airspace. These amendments are being made so the route legal descriptions in FAA Order 7400.9, Airspace Designations and Reporting Points, match changes made by NAV CANADA to the route segments that lie within Canadian airspace and/or to reflect navigation aid name changes and editorial corrections. The specific changes are described below.
In the description of J-560, the word “Quebec” is inserted before “PQ, Canada” to correct an unintended omission. The J-16 and J-94 route descriptions previously indicated that they stopped at the U.S./Canadian border but actually they continue through London, ON to Buffalo, NY and beyond. J-566 extends to the Montreal VOR/DME instead of terminating at the border. J-95 terminates at a fix on the border instead of the Toronto VOR/DME as stated in the current description. This action reflects a large portion of J-500 within Canada that has been eliminated. The Mans, ON, VOR/DME is added in the description of J-531 to match the routing within Canada. The descriptions of J-448, J-546, J-553, J-588, J-594 and J-595 are amended to indicate their termination at the first fix within Canadian airspace. J-586's description is amended to indicate its present routing within Canadian airspace.
A one-degree change is required to the Toronto VOR/DME radial stated in the V-31 and V-522 descriptions. V-91 and V-282 no longer extend to St. Eustache, Canada, but terminate at fixes about 2.5 miles north of, and on, the United States/Canadian border, respectively. The Sterling VOR/DME has been renamed Campbellford in the description of V-98, and the St. Georges VOR/DME has been renamed Beauce in V-346. The descriptions of V-104, and V-145 have been amended to terminate at the first fix within Canadian airspace instead of extending to the Ottawa VOR/DME as currently listed. The description of V-423 is adjusted to reflect the routing within Canada to the HUXLY intersection instead of terminating on the border as currently described.
This is an administrative change to the legal descriptions of the above listed Jet Routes and VOR Federal airways to incorporate route segment changes made by NAV CANADA within Canadian airspace, and to include navigation aid name changes and editorial corrections. Therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Jet Routes are published in paragraph 2004; and Domestic VOR Federal airways are published in paragraph 6010(a), of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Jet Routes and Domestic Federal VOR airways listed in this document will be published subsequently in the Order.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 311a. This airspace action is an editorial change that is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Battle Ground, WA, via Pendleton, OR; Whitehall, MT; Billings, MT; Dupree, SD; Sioux Falls, SD; Mason City, IA; Badger, WI; Peck, MI; London, ON, Canada; Buffalo, NY; Albany, NY; to Boston, MA; excluding the airspace within Canada.
From Oakland, CA, via Manteca, CA; INT Manteca 047° and Mustang, NV 208° radials; to Mustang, NV; Lovelock, NV; Battle Mountain, NV; Lucin, UT; Rock Springs, WY; Scottsbluff, NE; O'Neill, NE; Fort Dodge, IA; Dubuque, IA; Northbrook, IL; Pullman, MI; Flint, MI; Peck, MI; London, ON, Canada; Buffalo, NY; Albany, NY; to Boston, MA; excluding the airspace within Canada.
From Deer Park, NY; INT Deer Park 308° and Binghamton, NY, 119° radials; Binghamton; Buffalo, NY; INT Buffalo 316° and Dunkirk, NY 012° radials; excluding the airspace within Canada.
From Watertown, NY; INT Watertown 018° and Massena, NY 300° radials; excluding the airspace within Canada.
From Thunder Bay, ON, via Sault Ste Marie, MI; to North Bay, ON, Canada. From Sherbrooke, PQ, Canada; Millinocket, ME; to Frederickton, NB; excluding the airspace within Canada.
From Buffalo, NY, via Toronto, ON, Canada; Mans, ON, Canada; Wiarton, ON, Canada; to Sault Ste Marie, MI, excluding the airspace within Canada.
From Peck, MI; to INT Peck 068° and Simcoe, ON, Canada 250° radials; excluding the airspace within Canada.
From Peck, MI, to INT Peck 057° and Mans, ON, Canada 328° radials; excluding the airspace within Canada.
From Plattsburgh, NY, to Quebec, PQ, Canada, excluding the airspace within Canada.
From Massena, NY, to Montreal, Canada; excluding the airspace within Canada.
From Carleton, MI, via London, ON, Canada; to Toronto, ON, Canada. From INT Ottawa, ON, Canada 185° and Massena, NY 257° radials; Massena; to INT Massena 071° and Mirabel, QC, Canada 172° radials; excluding the airspace within Canada.
From Sault Ste Marie, MI; to INT Sault Ste Marie 112° and Campbellford, ON, Canada 296° radials; excluding the airspace within Canada.
From Massena, NY; to INT Massena 252° and Watertown, NY 028° radials; excluding the airspace within Canada.
From INT London, ON, Canada 064° and Watertown, NY 269° radials; Watertown; Plattsburgh, NY; Bangor, ME; to St John, NB, Canada; excluding the airspace within Canada.
From Patuxent River, MD; INT Patuxent River 338° and Nottingham, MD, 128° radials; Nottingham. From Baltimore, MD; INT Baltimore 004° and Harrisburg, PA, 147° radials; Harrisburg; Selinsgrove, PA; Williamsport, PA; Elmira, NY; INT Elmira 002° and Rochester, NY, 120° radials; Rochester; INT Rochester 279° and Toronto, Canada, 150° radials; Toronto; excluding the airspace within Canada.
From INT Calverton, NY, 180° and Hampton, NY, 223° radials; Calverton; Bridgeport, CT; Albany, NY; Glens Falls, NY; INT Glens Falls 032° and Burlington, VT, 187° radials; Burlington; Plattsburgh, NY; INT Plattsburgh 348° and St. Jean, PQ, Canada 226° radials; excluding the airspace within Canada.
From Dayton, OH; INT Dayton 358° and Carleton, MI, 243° radials; to INT Carleton 243° and Waterville, OH, 321° radials. From Windsor, ON, Canada; London, ON, Canada; Toronto, ON, Canada; Campbellford, ON, Canada; Massena, NY; St. Jean, PQ, Canada; excluding the airspace within Canada.
From INT Ottawa. ON, Canada 127° and Massena, NY, 300° radials; Massena; Plattsburgh, NY; Burlington, VT; Montpelier, VT; Berlin, NH; to Bangor, ME; excluding the airspace within Canada.
From Utica, NY, INT Utica 303° and Watertown, NY, 171° radials; Watertown; to INT Watertown 005° and Ottawa, ON, Canada 185° radials; excluding the airspace within Canada.
From Saranac Lake, NY; to INT Saranac Lake 008° and Massena, NY 080° radials; excluding the airspace within Canada.
From Beauce, PQ, Canada, to Millinocket, ME, excluding the airspace within Canada.
From Williamsport, PA, Binghamton, NY; Ithaca, NY; Syracuse, NY; Watertown, NY; to INT Watertown 018° radial and Massena, NY 270° radials; excluding the airspace within Canada.
From Dryer, OH; INT Dryer 049° and Erie, PA, 258° radials; Erie; Dunkirk, NY; INT Dunkirk 356° and Toronto, ON, Canada, 150° radials; to Toronto; excluding the airspace within Canada.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at West Memphis, AR. Separation of existing Class E airspace surrounding West Memphis Municipal Airport from the Class E airspace of Memphis International Airport, Memphis, TN, has made this action necessary to enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone 817-321-7716.
On March 26, 2012, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at West Memphis, AR, to accommodate the separation of existing Class E airspace surrounding West Memphis Municipal Airport from the Class E airspace area of Memphis International Airport, Memphis, TN. The amendment for the existing Class E airspace surrounding Memphis International Airport, Memphis, TN, is simultaneously coordinated with this action. Controlled airspace is needed for the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of 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 establishes controlled airspace at West Memphis Municipal Airport, West Memphis, AR.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of West Memphis Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action removes Class E airspace listed at Lloydsville, PA, for Latrobe Hospital Heliport (old name), and incorporates Excela Health Latrobe Hospital Heliport (new name) onto Class
Effective 0901 UTC, September 20, 2012. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
On May 11, 2012, the FAA published in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes Class E airspace extending upward from 700 feet above the surface in Lloydsville, PA, for Latrobe Hospital Heliport, and incorporate Excela Health Latrobe Hospital Heliport, formerly Latrobe Hospital Heliport, into existing Class E airspace extending upward from 700 feet above the surface, at Latrobe, PA. Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface are amended to support new standard instrument approach procedures at Arnold Palmer Regional Airport, Latrobe, PA, formerly Westmoreland County Airport. The geographic coordinates for the heliport and the airport are adjusted to coincide with the FAA's aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of 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 removes controlled airspace In Lloydsville, PA and amends controlled airspace in Latrobe, PA.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 3,700 feet MSL within a 5-mile radius of Arnold Palmer Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface of Arnold Palmer Regional Airport within the 045° bearing from the airport clockwise to the 210° bearing, extending from the 5-mile radius of the airport to 10 miles southwest. This Class E airspace area shall be effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface within a 12-mile radius of Arnold Palmer Regional Airport, and within a 6-mile radius of Excela Health Latrobe Hospital Heliport.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Amtrak Railroad Bridge across the Niantic River, mile 0.0, at Niantic, Connecticut. The deviation allows the bridge to remain in the closed position for a 48 hour period and for periodic overnight closures to facilitate pier alignment and completion of work on machinery and the lift span.
This deviation is effective from 9 p.m. on July 15, 2012 through 6 a.m. on August 22, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2012-0601 and are available online at
If you have questions on this rule, call or email Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 668-7165, email
The Amtrak Railroad Bridge, across the Niantic River, mile 0.0, at Niantic, Connecticut, has a vertical clearance in the closed position of 16 feet at mean high water. The drawbridge operation regulations are listed at 33 CFR 117.215(a).
The waterway users are recreational vessels and seasonal fishing boats.
The operator of the bridge, National Passenger Railroad Corporation (Amtrak), requested a temporary deviation from the regulations to facilitate pier alignment and completion of machinery installation at the new Niantic River RR Bridge.
The Coast Guard previously issued a temporary deviation to Amtrak dated May 2, 2012, USCG-2012-0305, to allow the bridge to remain in the closed position during the hours of 11 p.m. until 6 a.m., Monday through Thursday, beginning May 15, 2012 until August 15, 2012 in order to facilitate completion of machinery installation and lift span work at the new railroad bridge. However, in May 2012, the contractor discovered a minor shift in the bascule pier, causing a misalignment of the new bridge.
Until the pier alignment problem is resolved, the work anticipated to be completed during the closures authorized under the May 2, 2012 temporary deviation cannot be done.
In order to complete all the remaining work and correct the pier alignment problem a 48 hour bridge closure from 9 p.m. July 15 to 9 p.m. July 17, 2012 was determined to be necessary and the best time to conduct work in order to bring the bridge into proper alignment. Once the alignment is completed machinery installation and lift span work may continue.
This scenario was presented to the Amtrak Annual Boaters Meeting on June 7, 2012. The waterway users and Sector Long Island Sound have all concurred with the bridge closure period as the optimal time for the closure so that completion of the bridge replacement project is not impacted. Additionally, periodic overnight closures with the possibility of two openings after advance notice was agreed upon.
Under this temporary deviation the Amtrak Railroad Bridge may remain in the closed position from 9 p.m. on July 15, 2012 through 9 p.m. on July 17, 2012. In addition, the bridge may remain in the closed position during the hours of 10 p.m. until 6 a.m., Sunday through Wednesday, each week beginning July 22, 2012 until August 22, 2012 except that openings will be granted at midnight and 4:30 a.m. with a 2 hour advance notice. This schedule will be published in the Local Notice to Mariners, and via broadcast notice to mariners as necessary.
Vessels that can pass under the bridge in the closed position may do so at all times.
The waterway users were advised of the requested bridge closure and offered no objection.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time periods. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice canceling temporary deviation from regulations.
The Coast Guard is canceling the temporary deviation published on May 2, 2012 (77 FR 25889) concerning the operation of the Amtrak Railroad Bridge across the Niantic River, mile 0.0, at Niantic, Connecticut.
The temporary deviation published on May 2, 2012 (77 FR 25889) is cancelled as of July 14, 2012.
The docket for this cancelled deviation is available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 668-7165, email
On May 2, 2012, we published a temporary deviation entitled “Drawbridge Operations: Niantic River, Niantic, CT” in the
The Coast Guard previously issued a temporary deviation to Amtrak published on May 2, 2012 (77 FR 25889) to allow their bridge to remain in the closed position from 11 p.m. through 6 a.m., Monday through Thursday, beginning May 15, 2012 until August 15, 2012. The temporary deviation was necessary to facilitate completion of machinery installation and lift span work at the new railroad bridge.
In May 2012, the contractor building the bridge discovered a minor shift in the bascule pier, causing a misalignment of the new bridge. Until the pier alignment problem is resolved, the work anticipated to be completed during the closures authorized under the May 2, 2012 (77 FR 25889) temporary deviation could not be completed.
In order to complete all the remaining work and correct the pier alignment problem a new temporary deviation is required authorizing a 48 hour bridge closure from 9 p.m. July 15 to 9 p.m. July 17, 2012 and a series of overnight closures between July 22 and August 22, 2012.
As a result of all the above information it was determined that the temporary deviation published on May 2, 2012 (77 FR 25889) must be cancelled on July 14, 2012.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the General Edwards Bridge, mile 1.7, across the Saugus River between Lynn and Revere, Massachusetts. The deviation is necessary to facilitate major bridge rehabilitation construction. This deviation allows the bridge to remain in the closed position during the rehabilitation of the electrical and mechanical components that lift the bridge spans.
This deviation is effective from September 4, 2012 through February 27, 2013.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2012-0547 and are available online at
If you have questions on this rule, call or email Mr. John W. McDonald, Project Officer, First Coast Guard District,
The General Edwards Bridge, across the Saugus River, mile 1.7, between Lynn and Revere, Massachusetts, has a vertical clearance in the closed position of 27 feet at mean high water and 36 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.618(b).
The waterway users are recreational vessels of various sizes. During the non-boating season the bridge rarely opens since the recreational vessels that transit this waterway are normally in winter storage. The bridge has opened five times since 2010 during the winter months.
The owner of the bridge, Massachusetts Department of Transportation, requested a temporary deviation from the regulations to help facilitate rehabilitation of the electrical and mechanical components that lift the opening spans.
Under this temporary deviation the General Edwards Bridge may remain in the closed position from September 4, 2012 through February 27, 2013.
Vessels that can pass under the bridge in the closed position may do so at any time.
The Coast Guard believes that this temporary deviation meets the reasonable needs of navigation because the recreational users that normally use this bridge are recreational vessels that do not operate during the winter months when this deviation will be in effect.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of difenoconazole in or on multiple commodities identified and discussed in this document and amends the established tolerances in or on vegetable, tuberous and corm, subgroup 1C and potato, processed waste. In addition, this regulation removes established tolerances for certain commodities/groups superseded by this action. The Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective July 19, 2012. Objections and requests for hearings must be received on or before September 17, 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-2011-0300, is available at
Sidney Jackson, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 305-7610; 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 those engaged in the following activities:
• 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-2011-0300 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 September 17, 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-2011-0300, by one of the following methods:
In the
Based upon review of the data supporting this petition, EPA denied the Petitioner's request to remove the established tolerance on potato, processed waste at 0.04 ppm. Moreover, the Agency determined that the tolerance needs to be raised and the commodity terminology changed to potato, wet peel at 7.3 ppm. The Agency's rationale for these decisions is outlined in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(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. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance 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. * * *”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Difenoconazole possesses low acute toxicity by the oral, dermal and inhalation routes of exposure. It is not an eye or skin irritant and is not a sensitizer. Subchronic and chronic studies with difenoconazole in mice and rats showed decreased body weights, decreased body weight gains and effects on the liver. In an acute neurotoxicity study in rats, reduced fore-limb grip strength was observed on day 1 in males and clinical signs of neurotoxicity were observed in females at the limit dose of 2,000 milligrams/kilograms (mg/kg). In a subchronic neurotoxicity study in rats, decreased hind limb strength was observed in males only at the mid- and high-doses. However, the effects observed in acute and subchronic neurotoxicity studies are transient, and the dose-response is well characterized with identified no-observed-adverse-effects-levels (NOAELs). No systemic toxicity was observed at the limit dose in the most recently submitted 28-day rat dermal toxicity study.
There is no concern for increased qualitative and/or quantitative susceptibility after exposure to difenoconazole in developmental toxicity studies in rats and rabbits, and a reproduction study in rats as fetal/offspring effects occurred in the presence of maternal toxicity. There are no indications in the available studies that organs associated with immune function, such as the thymus and spleen, are affected by difenoconazole.
EPA is using the non-linear (Reference Dose) approach to assess cancer risk. Difenoconazole is not mutagenic, and no evidence of carcinogenicity was seen in rats. Evidence for carcinogenicity was seen in mice (liver tumors), but statistically significant carcinomas tumors were only induced at excessively-high doses. Adenomas (benign tumors) and liver necrosis only were seen at 300 parts per million (ppm) (46 and 58 mg/kg/day in males and females, respectively). Based on excessive toxicity observed at the two highest doses in the study, the presence of only benign tumors and necrosis at the mid-dose, the absence of tumors at the study's lower doses, and the absence of genotoxic effects, EPA has concluded that the chronic point of departure (POD) from the chronic mouse study will be protective of any cancer effects. The POD from this study is the NOAEL of 30 ppm (4.7 and 5.6 mg/kg/day in males and females, respectively) which was chosen based upon only those biological endpoints which were relevant to tumor development (i.e., hepatocellular hypertrophy, liver necrosis, fatty changes in the liver and bile stasis).
Specific information on the studies received and the nature of the adverse effects caused by difenoconazole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological POD and levels of concern (LOC) to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for difenoconazole used for human risk assessment is discussed in Unit III. B. of the final rule published in the
1.
i.
Such effects were identified for difenoconazole. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA used an unrefined acute analysis for food and water that assumed tolerance-level residues, 100 percent crop treated (PCT), and the available empirical or dietary exposure evaluation model (DEEM
ii.
iii.
iv.
Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.
2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) for registered and proposed new uses and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of difenoconazole for acute exposures are estimated to be 17.4 parts per billion (ppb) for surface water and 0.0128 ppb for ground water.
For chronic exposures for non-cancer assessments are estimated to be 11.8 ppb for surface water and 0.0128 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.
For acute dietary risk assessment, the water concentration value of 17.4 ppb was used to assess the contribution to drinking water.
For chronic dietary risk assessment, the water concentration of value 11.8 ppb was used to assess the contribution to drinking water.
3.
Difenoconazole is currently registered for the following uses that could result in residential exposures: Ornamentals/golf course turf. EPA assessed residential exposure using the following assumptions: Adults may be exposed to difenoconazole from its currently registered use on ornamentals. Residential pesticide handlers may be exposed to short-term duration (1-30 days) only. The dermal and inhalation (short-term) residential exposure was assessed for homeowners mixer/loader/applicator wearing short pants and short-sleeved shirts as well as shoes plus socks using garden hose-end sprayer, pump-up compressed air sprayer, and backpack sprayer.
Residential post-application exposure may occur from use of difenoconozole on golf course turf. Short-term dermal exposure was assessed for post-application exposure to golf course turf. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
Difenoconazole is a member of the triazole-containing class of pesticides. Although conazoles act similarly in plants (fungi) by inhibiting ergosterol biosynthesis, there is not necessarily a relationship between their pesticidal activity and their mechanism of toxicity in mammals. Structural similarities do not constitute a common mechanism of toxicity. Evidence is needed to establish that the chemicals operate by the same, or essentially the same, sequence of major biochemical events (EPA, 2002). In conazoles, however, a variable pattern of toxicological responses is found. Some events are hepatotoxic and hepatocarcinogenic in mice. Some induce thyroid tumors in rats. Some induce developmental, reproductive, and neurological effects in rodents. Furthermore, the conazoles produce a diverse range of biochemical events including altered cholesterol levels, stress responses, and altered DNA methylation. It is not clearly understood whether these biochemical events are directly connected to their toxicological outcomes. Thus, there is currently no evidence to indicate that conazoles share common mechanisms of toxicity and EPA is not following a cumulative risk approach based on a common mechanism of toxicity for the conazoles. For information regarding EPA's procedures for cumulating effects from substances found to have a common mechanism of toxicity, see EPA's Web sites at:
Difenoconazole is a triazole-derived pesticide. This class of compounds can form the common metabolite 1,2,4-triazole and two triazole conjugates (triazolylalanine and triazolylacetic acid). To support existing tolerances and to establish new tolerances for triazole-derivative pesticides, including difenoconazole, EPA conducted a human health risk assessment for exposure to 1,2,4-triazole, triazolylalanine, and triazolylacetic acid resulting from the use of all current and pending uses of any triazole-derived fungicide. The risk assessment is a highly conservative, screening-level evaluation in terms of hazards associated with common metabolites (e.g., use of a maximum combination of uncertainty factors) and potential dietary and non-dietary exposures (i.e., high end estimates of both dietary and non-dietary exposures). In addition, the Agency retained the additional 10x Food Quality Protection Act (FQPA) safety factor (SF) for the protection of infants and children. The assessment includes evaluations of risks for various subgroups, including those comprised of infants and children. The Agency's risk assessment is found in the propiconazole reregistration docket at
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2.
3.
i. The toxicity database is complete except for results of a recently submitted immunotoxicity study required as a part of new data requirements in the 40 CFR part 158 for conventional pesticide registration. However, the existing toxicology database for difenoconazole does not show any evidence of treatment-related effects on the immune system. The overall weight of evidence suggests that this chemical does not directly target the immune system. Accordingly, the Agency does not believe that findings from the ongoing review of the immunotoxicity study will result in a lower POD than that currently in use for overall risk assessment, and therefore, a database uncertainty factor is not needed to account for lack of this study.
ii. The acute and subchronic neurotoxicity studies in rats are available. These data show that difenoconazole exhibits some evidence of neurotoxicity, but the effects are transient or occur at the limit dose. EPA concluded that difenoconazole is not a neurotoxic compound. Based on the toxicity profile, and lack of neurotoxicity, a developmental neurotoxicity study in rats is not required.
iii. There is no evidence that difenoconazole results in increased susceptibility of rats or rabbit fetuses to
iv. There are no residual uncertainties identified in the exposure databases. A conservative dietary food exposure assessment was conducted. Acute dietary food exposure assessments were performed based on tolerance-level residues, 100 PCT, and the available empirical or (DEEM
Chronic dietary exposure assessments were based on tolerance-level residues for some commodities, average field trial residues for the majority of commodities, the available empirical or (DEEM
EPA also made conservative (protective) assumptions in the ground water and surface water modeling used to assess exposure to difenoconazole in drinking water. Post-application residential exposure of children is not expected. These assessments will not underestimate the exposure and risks posed by difenoconazole.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
Difenoconazole is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to difenoconazole.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 200 or greater. Because EPA's level of concern for difenoconazole is a MOE of 100 or below, these MOEs are not of concern.
4.
An intermediate-term adverse effect was identified; however, difenoconazole is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for difenoconazole.
5.
6.
Adequate enforcement methodology, gas chromatography with nitrogen/phosphorus detection (GC/NPD) method AG-575B, is available to enforce the tolerance expression for residues of difenoconazole in/on plant commodities. An adequate enforcement method, liquid chromatography coupled with tandem mass spectrometry (LC/MS/MS) method REM 147.07b, is available for the determination of residues of difenoconazole and CGA-205375 in livestock commodities. Adequate confirmatory methods are also available.
The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
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.
Codex maximum residue levels (MRLs) for residues of difenoconazole
The Petitioner proposed removal of the established tolerance in or on potato, processed waste at 0.04 ppm. However, the Agency has determined that this tolerance needs to be retained and raised to 7.3 ppm. Further, the commodity definition should be changed to potato, wet peel. The potato processing data indicate that residues of difenoconazole do not concentrate in flakes and chips but do concentrate in wet peel. Based on the highest-average-field-trial value for residues in/on potatoes (2.34 ppm) and the average processing factor (3.1×), expected residues could be as high as 7.3 ppm in potato, wet peel. Because this value is higher than the recommended 4.0 ppm tolerance for vegetable, tuberous and corm, subgroup 1C, a separate tolerance is needed in potato, wet peel at 7.3 ppm.
The Petitioner's proposed commodity terminology for berry, low growing, subgroup 13-07G, except cranberry was corrected to comply with current crop terminology policy.
Therefore, tolerances are established for residues of difenoconazole, 1-[2-[2-chloro-4-(4-chlorophenoxy)phenyl]-4-methyl-1,3-dioxolan-2-ylmethyl]-1
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. 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
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, 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
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.
The added and revised text read as follows:
(a) * * *
(1) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific ocean perch in the West Yakutat District of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2012 total allowable catch (TAC) of Pacific ocean perch in the West Yakutat District of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), July 16, 2012, through 2400 hrs, A.l.t., December 31, 2012.
Steve Whitney, 907-586-7269.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2012 TAC of Pacific ocean perch in the West Yakutat District of the GOA is 1,692 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the (77 FR 15194, March 14, 2012).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2012 TAC of Pacific ocean perch in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,592 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the West Yakutat District of the GOA.
After the effective date of this closure the maximum retainable amounts a § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific ocean perch in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
U.S. Small Business Administration.
Proposed rule.
The U.S. Small Business Administration (SBA) proposes to revise the small business size standards for nine industries in North American Industry Classification System (NAICS) Sector 22, Utilities. Six of those industries deal with electric power generation, distribution and transmission (NAICS 221111, NAICS 221112, NAICS 221113, NAICS 221119, NAICS 221121, and NAICS 221122) and have a common size standard based on electric output. For those six industries, SBA proposes to replace the current size standard of 4 million megawatt hours in electric output with an employee based size standard of 500 employees. SBA also proposes to increase the small business size standards for three industries in NAICS Sector 22 that have receipt based size standards, namely—NAICS 221310, Water Supply and Irrigation Systems, from $7 million to $25.5 million; NAICS 221320, Sewage Treatment Facilities, from $7 million to $19 million; and NAICS 221330, Steam and Air-conditioning Supply, from $12.5 million to $14 million. As part of its ongoing initiative to review all size standards, SBA evaluated all industries in NAICS Sector 22 that have either electric output based or receipts based size standards to determine whether the existing size standards should be retained or revised. This rule is one of a series of proposed rules that will examine industries grouped by NAICS sector. SBA has issued a White Paper entitled “Size Standards Methodology” and published in the October 21, 2009 issue of the
SBA must receive comments to this proposed rule on or before September 17, 2012.
Identify your comments by RIN 3245-AG25 and submit them by one of the following methods: (1)
SBA will post all comments to this proposed rule on
Khem R. Sharma, Ph.D., Chief, Size Standards Division, (202) 205-6618 or
To determine eligibility for Federal small business assistance, SBA establishes small business size definitions (referred to as size standards) for private sector industries in the United States. SBA uses two primary measures of business size: average annual receipts and average number of employees. SBA uses financial assets, electric output, and refining capacity to measure the size for a few specialized industries. In addition, SBA's Small Business Investment Company (SBIC), Certified Development Company (504) and 7(a) Loan Programs use either the industry based size standards or net worth and net income based size standards to determine eligibility for those programs. At the beginning of SBA's comprehensive size standards review, there were 41 different size standards, covering 1,141 NAICS industries and 18 sub-industry activities (“exceptions” in SBA's table of size standards). Thirty-one of these size levels were based on average annual receipts, seven were based on average number of employees, and three were based on other measures.
Over the years, SBA has received comments that its size standards have not kept up with changes in the economy, in particular the changes in the Federal contracting marketplace and industry structure. The last time SBA conducted a comprehensive review of size standards was during the late 1970s and early 1980s. Since then, most reviews of size standards have been limited to a few specific industries in response to requests from the public and Federal agencies. SBA also makes periodic inflation adjustments to its monetary based size standards. SBA's latest inflation adjustment to size standards was published in the
Because of changes in the Federal marketplace and industry structure since the last overall size standards review, SBA recognizes that current data may no longer support some of its existing size standards. Accordingly, in 2007, SBA began a comprehensive review of all size standards to determine if they are consistent with current data, and to adjust them when necessary. In addition, on September 27, 2010, the President of the United States signed the Small Business Jobs Act of 2010 (Jobs Act). The Jobs Act directs SBA to conduct a detailed review of all size standards and to make appropriate adjustments to reflect market conditions. Specifically, the Jobs Act requires SBA to conduct a detailed review of at least one-third of all size standards during every 18-month period from the date of its enactment. In addition, the Jobs Act requires that SBA conduct a review of all size standards not less frequently than once every 5 years thereafter. Reviewing existing small business size standards and
Rather than review all size standards at one time, SBA is reviewing a group of industries within an NAICS Sector. An NAICS Sector generally consists of 25 to 75 industries, except for the manufacturing sector, which has considerably more industries. Once SBA completes its review of size standards for industries in an NAICS Sector, it will issue a proposed rule to revise size standards for those industries for which currently available data and other relevant factors support doing so.
Below is a discussion of SBA's size standards methodology for establishing receipts based size standards, which SBA applied to this proposed rule, including analyses of industry structure, Federal procurement trends and other factors for industries reviewed in this proposed rule, the impact of the proposed revisions to size standards on Federal small business assistance, and the evaluation of whether a revised size standard would exclude dominant firms from being considered small.
SBA has recently developed a “Size Standards Methodology” for developing, reviewing and modifying size standards when necessary. SBA has published this document on its Web site at
SBA welcomes comments from the public on a number of issues concerning its “Size Standards Methodology,” such as suggestions on alternative approaches to establishing and modifying size standards; whether there are alternative or additional factors that SBA should consider; whether SBA's approach to small business size standards makes sense in the current economic environment; whether SBA's use of anchor size standards is appropriate in the current economy; whether there are gaps in SBA's methodology because of the lack of comprehensive data; and whether there are other facts or issues that SBA should consider. Comments on SBA's methodology should be submitted via: (1) The Federal eRulemaking Portal:
Congress granted discretion to the SBA's Administrator to establish detailed small business size standards. 15 U.S.C. 632(a)(2). Section 3(a)(3) of the Small Business Act (15 U.S.C. 632(a)(3)) requires that “* * * the [SBA] Administrator shall ensure that the size standard varies from industry to industry to the extent necessary to reflect the differing characteristics of the various industries and consider other factors deemed to be relevant by the Administrator.” Accordingly, the economic structure of an industry serves as the underlying basis for developing and modifying small business size standards. SBA identifies the small business segment of an industry by examining data on the economic characteristics defining the industry structure itself (as described below). In addition to analysis of industry structure, SBA also considers current economic conditions, together with its own mission, program objectives, and the Administration's current policies, suggestions from industry groups and Federal agencies, and public comments on the proposed rule, when it establishes small business size standards. SBA also examines whether a size standard based on industry and other relevant data successfully excludes businesses that are dominant in the industry. This proposed rule affords the public an opportunity to review and comment on SBA's proposals to revise size standards in NAICS Sector 22, as well as on the data and methodology it uses to evaluate and revise a size standard.
For the current comprehensive size standards review, SBA has established three “base” or “anchor” size standards: $7 million in average annual receipts for industries that have receipts based size standards, 500 employees for manufacturing and other industries that have employee based size standards (except for Wholesale Trade), and 100 employees for industries in the Wholesale Trade Sector. SBA established 500 employees as the anchor size standard for manufacturing industries at its inception in 1953. Shortly thereafter, SBA established $1 million in average annual receipts as the anchor size standard for nonmanufacturing industries. SBA has periodically increased the receipts based anchor size standard for inflation, and it stands today at $7 million. Since 1986, SBA has set 100 employees as the size standard for all industries in the Wholesale Trade Sector for SBA financial assistance programs. However, NAICS codes for Wholesale Trade Industries (NAICS Sector 42) and their 100 employee size standard do not apply to Federal procurement programs. Rather, for Federal procurement purposes, the size standard is 500 employees for all industries in Wholesale Trade and for all industries in Retail Trade (NAICS Sector 44-45) under SBA's nonmanufacturer rule (13 CFR 121.406(b)).
These long-standing anchor size standards have stood the test of time and gained legitimacy through practice and general public acceptance. An anchor size standard is neither a minimum nor a maximum. It is a common size standard for a large number of industries that have similar economic characteristics and serves as a reference point in evaluating size standards for individual industries. SBA uses the anchor in lieu of trying to establish precise small business size standards for each industry. Otherwise, theoretically, the number of size standards might be as high as the number of industries for which SBA establishes size standards (1,141). Furthermore, the data SBA analyzes are static, while the U.S. economy is not. Hence, absolute precision is impossible. Therefore, SBA presumes an anchor size standard is appropriate for a particular industry unless that industry displays economic characteristics that are considerably different from others with the same anchor size standard.
When evaluating a size standard, SBA compares the economic characteristics
If the specific industry's characteristics are significantly higher than those of the anchor comparison group, then a size standard higher than the anchor size standard may be appropriate. The larger the differences are between the characteristics of the industry under review and those in the anchor comparison group, the larger will be the difference between the appropriate industry size standard and the anchor size standard. To determine a size standard above the anchor size standard, SBA analyzes the characteristics of a second comparison group. For industries with receipts based size standards, including those in NAICS Sector 22 that are reviewed in this proposed rule, SBA has developed a second comparison group consisting of industries with the highest levels of receipts based size standards. To determine the level of a size standard above the anchor size standard, SBA analyzes the characteristics of this second comparison group. The size standards for this group of industries range from $23 million to $35.5 million in average annual receipts, with the weighted average size standard for the group being $29 million. SBA refers to this comparison group as the “higher level receipts based size standard group.”
The primary factors that SBA evaluates when analyzing the structural characteristics of an industry include average firm size, startup costs and entry barriers, industry competition, and distribution of firms by size. SBA also evaluates, as an additional primary factor, the impact that revising size standards might have on Federal contracting assistance to small businesses. These are, generally, the five most important factors SBA examines when establishing or revising a size standard for an industry. In addition, SBA considers and evaluates other information that it believes is relevant to a particular industry (such as technological changes, growth trends, SBA financial assistance and other program factors,
1.
If the average firm size of an industry under review is significantly higher than the average firm size of industries in the anchor comparison industry group, this will generally support a size standard higher than the anchor size standard. Conversely, if the industry's average firm size is similar to or significantly lower than that of the anchor comparison industry group, it will be a basis to adopt the anchor size standard, or in rare cases, a standard lower than the anchor.
2.
To calculate average assets, SBA begins with the total sales to total assets ratio for an industry from the Risk Management Association's Annual eStatement Studies. SBA then applies these ratios to the average receipts of firms in that industry. An industry with a significantly higher level of average assets than that of the anchor comparison group is likely to have higher startup costs; this in turn will support a size standard higher than the anchor. Conversely, an industry with average assets that are similar to or significantly lower than those of the anchor comparison group is likely to have lower startup costs; this in turn will support adoption of the anchor size standard, or in rare cases, one lower than the anchor.
3.
4.
Concentration is a measure of inequality of distribution. To determine the degree of inequality of distribution in an industry, SBA computes the Gini coefficient by constructing the Lorenz curve. The Lorenz curve presents the cumulative percentages of units (firms) along the horizontal axis and the cumulative percentages of receipts (or other measures of size) along the vertical axis. (For further detail, please refer to SBA's “Size Standards Methodology” on SBA's Web site at
SBA compares the Gini coefficient value for an industry under review with that for industries in the anchor comparison group. If an industry shows a higher Gini coefficient value than industries in the anchor comparison industry group this may, all else being equal, warrant a higher size standard than the anchor. Conversely, if an industry's Gini coefficient is similar to or lower than that for the anchor group, the anchor standard, or in some cases a standard lower than the anchor, may be adopted.
5.
SBA considers Federal procurement trends in the size standards analysis only if: (1) The small business share of Federal contracting dollars is at least 10 percent lower than the small business share of total industry receipts, and (2) the amount of total Federal contracting averages $100 million or more during the latest three fiscal years. These thresholds reflect a significant level of contracting where a revision to a size standard may have an impact on contracting opportunities to small businesses.
Besides the impact on small business Federal contracting, SBA also evaluates the impact of a proposed size standard on SBA's loan programs. For this, SBA examines the volume and number of SBA guaranteed loans within an industry and the size of firms obtaining those loans. This allows SBA to assess whether the existing or the proposed size standard for a particular industry may restrict the level of financial assistance to small firms. If the analysis shows that the current size standards have impeded financial assistance to small businesses within an industry, this can support higher size standards. However, if small businesses within an industry under current size standards have been receiving significant amounts of financial assistance through SBA's loan programs, or businesses receiving the financial assistance are much smaller than the existing size standards, this factor may not be considered for determining the size standards.
SBA's primary source of industry data used in this proposed rule is a special tabulation of the data from 2007 Economic Census (see
In some cases, where industry data were not available due to disclosure prohibitions in the Census Bureau's tabulation, SBA either estimated missing values using available relevant data or examined data at a higher level of industry aggregation, such as at the NAICS 2-digit (Sector), 3-digit (Subsector), or 4-digit (Industry Group) level. In some instances, SBA had to base its analysis only on those factors for which data were available or estimates of missing values were possible.
For industries that provide electric power generation, distribution and transmission (NAICS codes 221111-221122), SBA received data from the U.S. Energy Information Agency (EIA) (
To calculate average assets, SBA used sales to total assets ratios from the Risk Management Association's Annual eStatement Studies, 2008-2010.
To evaluate Federal contracting trends, SBA examined data representing Federal contract awards for fiscal years 2008-2010. The data are available from the U.S. General Service Administration's Federal Procurement Data System—Next Generation (FPDS-NG).
To assess the impact on financial assistance to small businesses SBA examined data on its own guaranteed loan programs for fiscal years 2008-2010.
Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) defines a small business concern as one that is: (1) Independently owned and operated; (2) not dominant in its field of operation; and (3) within a specific small business size definition or size standard established by the SBA Administrator. SBA considers as part of its evaluation
To simplify size standards, for the ongoing comprehensive review of receipts based size standards, SBA has proposed to select size standards from a limited number of levels. For many years, SBA has been concerned about the complexity of determining small business status caused by a large number of varying receipts based size standards (
SBA proposes, therefore, to apply one of eight receipts based size standards to each of the three industries in NAICS Sector 22 with a receipts-based size standard. The eight “fixed” receipts based size standard levels are $5 million, $7 million, $10 million, $14 million, $19 million, $25.5 million, $30 million, and $35.5 million. To establish these eight receipts based size standard levels, SBA considered the current minimum, the current maximum, and the most commonly used current receipts based size standards. At the start of the current comprehensive size standards review, the most commonly used receipts based size standards clustered around the following: $2.5 million to $4.5 million, $7 million, $9 million to $10 million, $12.5 million to $14 million, $25 million to $25.5 million, and $33.5 million to $35.5 million. SBA selected $7 million as one of eight fixed levels of receipts based size standards because it is an anchor standard for receipts based standards. The lowest or minimum receipts based size level will be $5 million. Other than the standards for agriculture and those based on commissions (such as real estate brokers and travel agents), $5 million will include those industries that at the start of the comprehensive size standards review had the lowest receipts based standards, which ranged from $2 million to $4.5 million. Among the higher level size clusters, SBA has set four fixed levels, namely: $10 million, $14 million, $25.5 million, and $35.5 million. Because there are large intervals between some of the fixed levels, SBA also established two intermediate levels, namely $19 million between $14 million and $25.5 million, and $30 million between $25.5 million and $35.5 million. These two intermediate levels reflect roughly the same proportional differences as between the other two successive levels.
Of 10 industries in NAICS Sector 22, Utilities, SBA has evaluated the structure of six industries engaged in generation, distribution and transmission of electricity that have size standards based on electric output of 4 million megawatt hours and three industries that have size standards based on average annual receipts to assess the appropriateness of the current size standards. In this proposed rule, SBA has not reviewed one industry that has an employee based size standard in NAICS Sector 22 (NAICS 221210, Natural Gas Distribution). That employee based size standard will remain in effect until SBA reviews all employee based size standards at a later date.
As explained previously, if the characteristics of an industry under review are similar to the average characteristics of industries in the anchor comparison group, the anchor size standard is generally considered appropriate for that industry. If an industry's structure is significantly different from industries in the anchor group, a size standard lower or higher than the anchor size standard might be selected. The level of the new size standard is based on the difference between the characteristics of the anchor comparison group and a second industry comparison group. As described above, the second comparison group for receipts based standards consists of industries with the highest receipts based size standards, ranging from $23 million to $35.5 million. The average size standard for this group is $29 million. SBA refers to this group of industries as the “higher level receipts based size standard comparison group.” SBA determines differences in industry structure between an industry under review and the industries in the two comparison groups by comparing data on each of the industry factors, including average firm size, average assets size, the four-firm concentration ratio, and the Gini coefficient of distribution of firms by size. Table 1, Average Characteristics of Receipts Based Comparison Groups, below, shows two measures of the average firm size (simple and weighted), average assets size, the four-firm concentration ratio, average receipts of the four largest firms, and the Gini coefficient for both anchor level and higher level comparison groups for receipts based size standards.
For each industry factor in Table 1, Average Characteristics of Receipts Based Comparison Groups, above, SBA derives a separate size standard based on the differences between the values for an industry under review and the values for the two comparison groups. If the industry value for a particular factor is near the corresponding factor for the anchor comparison group, SBA will consider the $7 million anchor size standard appropriate for that factor.
An industry factor with a value significantly above or below the anchor comparison group will generally warrant a size standard for that industry above or below the $7 million anchor. The level of the new size standard in these cases is based on the proportional difference between the industry value and the values for the two comparison groups.
For example, if an industry's simple average receipts are $3.3 million, that would support a $19 million size standard. The $3.3 million level is 52.8 percent between the average firm size of $1.32 million for the anchor comparison group and $5.07 million for the higher level comparison group (($3.30 million − $1.32 million) ÷ ($5.07 million − $1.32 million) = 0.528 or 52.8%). This proportional difference is applied to the difference between the $7 million anchor size standard and average size standard of $29 million for the higher level size standard group and then added to $7 million to estimate a size standard of $18.62 million ([{$29.0 million − $7.0 million} * 0.528] + $7.0 million = $18.62 million). The final step is to round the estimated $18.62 million size standard to the nearest fixed size standard, which in this example is $19 million.
SBA applies the above calculation to derive a size standard for each industry factor. Detailed formulas involved in these calculations are presented in SBA's “Size Standards Methodology,” which is available on its Web site at
Besides industry structure, SBA also evaluates Federal contracting data to assess how successful small business are in getting Federal contracts under the existing size standards. For the current comprehensive size standards review, SBA has decided to designate a size standard at one level higher than the current size standard for industries where the small business share of total Federal contracting dollars is between 10 and 30 percentage points lower than their shares in total industry receipts and at two levels higher than the current size standard if the difference is more than 30 percentage points.
SBA has chosen not to designate a size standard for the Federal contracting factor alone that is higher than two levels above the current size standard. The FPDS-NG data have a number of limitations and there are also complex relationships among a number of variables affecting small business participation in the Federal marketplace. SBA believes, therefore, that a larger adjustment to size standards based on Federal contracting activity should be based on a more detailed analysis of the impact of any subsequent revision to the current size standard. In limited situations, however, SBA may conduct a more extensive examination of Federal contracting experience. This may enable SBA to support a different size standard than indicated by this general rule and take into consideration significant and unique aspects of small business competitiveness in the Federal contract market. SBA welcomes comment on its methodology of incorporating the Federal contracting factor in the size standard analysis and suggestions for alternative methods and other relevant information on small business experience in the Federal contract market.
Among the three industries that have receipts based size standards in NAICS Sector 22, two (NAICS codes 221310 and 221320) received an average of $100 million or more annually in Federal contracts during fiscal years 2008-2010. Of these two industries, the Federal contracting factor was significant (
Table 3, New Receipts Based Size Standards Supported by Each Factor for Each Industry (millions of dollars), below, shows the results of analyses of industry and Federal contracting factors for each of the three industries with receipts based standards in NAICS Sector 22. Each NAICS Industry in columns 2, 3, 4, 6, 7 and 8 shows two numbers. The upper number is the value for the industry or federal contracting factor shown on the top of the column; the lower number is the size standard supported by that factor. For the four-firm concentration ratio, a size standard is estimated based on the average receipts of the top four firms if its value is 40 percent or more. If the four-firm concentration ratio for an industry (column 5) is less than 40 percent, no size standard is estimated
NAICS Industry Group 2211, Electric Power Generation, transmission, and distribution, consists of six industries that currently have a common size standard of 4 million megawatt hours (MWh) from the sale and total electric output for the preceding fiscal year. These industries are: NAICS 221111, Hydroelectric Power Generation; NAICS 221112, Fossil Fuel Electric Power Generation; NAICS 221113, Nuclear Electric Power Generation; NAICS 221119, Other Electric Power Generation; NAICS 221121, Electric Bulk Power Transmission and Control; and NAICS 221122, Electric Power Distribution. To qualify as small under this size standard, a firm, including its affiliates, must be primarily engaged in the generation, transmission and/or distribution of electric energy for sale and its total electric output for preceding fiscal year does not exceed 4 million megawatt hours (
In this proposed rule, SBA has considered three possible changes to the current size standard for the six industries under NAICS Industry Group 2211: (1) Increasing the current MWh based size standard from 4 million MWh to 8 million MWh, and modifying Footnote 1; (2) adding an employee based size standard of 500 employees along with the 8 million MWh size standard and eliminating Footnote 1; and (3) replacing the current 4 million MWh size standard with an employee based size standard of 500 employees and eliminating Footnote 1.
SBA is concerned that the “primarily engaged” requirement to qualify as small under the MWh based size standard may restrict Federal contracting opportunities for small businesses that are developing capabilities in electric energy production and are still engaged in activities in other industries. To qualify as small under receipts based and employee based size standards for other industries, SBA's size regulations do not include the “primary industry” requirement to compete as an eligible small business on Federal procurement. In addition, the current footnote could be interpreted incorrectly that the concern and each of its affiliates must be primarily engaged in electric generation, transmission, or generation. That was never the intent of the footnote. Rather the footnote was meant to look at primary industry of the concern and its affiliates as a whole. The “primarily engaged” requirement would no longer be necessary by combining an employee based size standard with the MWh based size standard or by replacing it with an employee based size standard.
SBA established the 4 million MWh size standard for electric services in 1974 (39 FR 22163, June 20, 1974 and 39 FR 30345, August 22, 1974). Prior to that, a generic receipts based size standard of $1 million was applied to electric services and other services industries for which SBA had not established an industry specific size standard. SBA provided only the general reasons for adopting the 4 million MWh size standard in the 1974 proposed and final rules. SBA's analysis of industry data available at that time from the Federal Power Administration had found that the largest 20 percent of firms dominated the industry in terms of total electric output, sales, assets,
The electric power industry has undergone significant structural changes since the 1970s. As with other regulated industries, the electric power industry underwent deregulation leading to unbundling of generation, transmission, and distribution activities. Retail competition also has been introduced in 15 states in place of local monopolies in the electric power market. Merger and acquisition activities in recent years, especially by holding companies, have further contributed to the growing concentration in the electric power industry. New firms producing electric power using alternative energy sources (solar, wind,
The uniqueness of the electric power industry presents several challenges in analyzing the size standard for NAICS Industry Group 2211. Due to the highly capital intensive nature of generating and transmitting electricity, a few very large firms account for most of the generation and transmission of electric power. However, a large number of small firms also generate and distribute a small amount of electric power. As a result of the concentration of most of the activity in the few largest firms and the small number of firms operating in most of the specific industries for electric generation, transmission, and distribution industries, data from the Census Bureau's special tabulation contain a significant amount of suppressed data, limiting our ability to use them for size standards analysis using SBA's size standards methodology. More importantly, the Census Bureau's Economic Census does not collect data on electric output and no comparison groups exist to assess differing characteristics of individual industries based on electric output, thereby rendering most of the SBA's size standards methodology not applicable to analyze MWh based size standards for electric utilities.
Consequently, SBA has examined the changes in electric power industry structure since 1974 using data on privately owned for-profit electric generators to assess whether the current size standard should be modified to more appropriately reflect today's electric power industry composition. As mentioned earlier, these data were obtained from the EIA's Web site and were adjusted for affiliation using the information provided by an industry association. Data on electric power generators are the appropriate data available that are most comparable with the data SBA evaluated in 1974. Because of the lack of comparable historical data on electric transmission and distribution, the new size standard that SBA has considered proposing for electric generators will also apply to the transmission, and distribution industries. Although deregulation has resulted in unbundling of generation, transmission, and distribution activities, many of the firms engaged in the electric power generation are still engaged in transmission or/and distribution activities. Thus, SBA believes that a common size standard is still more appropriate for all the electric generation, transmission, and distribution industries than having a separate size standard for each of these activities, whether it is based on MWh, number of employees, or combination of both.
Based on the historical analysis of industry factors, one of the three alternatives SBA considered is to increase the current 4 million MWh size standard for NAICS Industry Group 2211, to 8 million MWh. SBA bases this proposed increase on several considerations. First, the data show that the industry has become much more concentrated today than it was in the early 1970s. Data on electric power generators from the U.S. Department of Energy's Energy Information Agency (EIA) and an analysis provided to SBA by an industry association showed that the share of the largest 20 percent of firms in the industry output increased from 73 percent in 1974 to 97 percent in 2009. Similarly, the Gini coefficient index characterizing the distribution of firms by electric output size increased from 0.698 to 0.909 during that period. These two trends indicate a significant increase in industry concentration and strongly support an increase to the existing size standard. Second, despite the increased industry concentration, average firm size decreased by almost 16 percent from 7.6 million MWh in 1974 to 6.4 million MWh in 2009. As mentioned above, many new, very small firms have entered the electric power generation industry. This decline in average firm size indicates that the current size standard may not need to be increased. Third, to attain the 1974 market share of a small electric utility company of 0.3 percent and the 1974 cumulative market share of small electric utilities of 6.7 percent of the industry output in 2009 would support an increase to the current size standard in the range of 6 million MWh to 9 million MWh.
SBA examined Federal contracting trends for electric power generation, transmission, and distribution during fiscal years 2008-2010. Federal contracting for NAICS Industry Group 2211 averaged $1.7 billion per year during this period. Of these total Federal contract dollars, small businesses obtained approximately 6 percent, which was very similar to the small business share of total industry receipts. Because the small business share in the Federal market was similar to the small business share of total industry receipts, the Federal contracting was not a significant factor. However, small business shares of both total contract dollars and total industry receipts for electric services industries were appreciably lower than those for other industries, warranting an increase to the current size standard.
SBA considered proposing an 8 million MWh size standard, as it would maintain the small business coverage ratio at the 4 million MWh size standard in 1974. This would also make the small business coverage ratio for electric services industries more comparable with the small business ratios for most other industries that have size standards in terms of the number of employees or average annual receipts. The small business coverage ratios (
If SBA were to adopt the solely MWh based measure of 8 million MWh size standard for NAICS Industry Group 2211 considered above, it believes that Footnote 1 needs to be revised to make it clearer how SBA determines whether a firm is primarily engaged in electric generation, transmission, or distribution. As discussed previously, a reader of the current footnote might incorrectly interpret that the concern and each of its affiliates must be primarily engaged in electric generation, transmission or generation. To correct this, SBA would consider revising Footnote 1 by substituting the term “primarily engaged” with “primary industry” and applying 13 CFR 121.107 when determining the primary industry of the firm. With these changes, the revised Footnote 1 would read as follows:
1.
Comments supporting the first alternative in which SBA considered to increase the size standard to 8 million MWh should also address whether the suggested changes to the existing footnote will sufficiently clarify and improve upon the application of a primary industry requirement.
As an alternative to increasing the current MWh based size standard, SBA considered adding an employee based size standard along with the proposed 8 million MWh size standard and removing Footnote 1 on the “primarily engaged” requirement. As discussed above, SBA is concerned that the current requirement for a firm to be primarily engaged in generation, transmission, or distribution of electric power to qualify for Federal small business assistance may have adversely affected small businesses interested in Federal contracting opportunities. Since deregulation, Federal agencies have been seeking out small businesses involved in the electric power generation using alternative energy sources and/or in electric power distribution for procurement of electric power. SBA has received several size protests involving the application of the requirement that businesses be primarily engaged in generation, transmission, or distribution of electric power to qualify for Federal small business assistance. The purpose of the “primarily engaged” requirement was to prevent a large business not involved in the electric power generation, transmission, or distribution industries from qualifying itself or its electric power affiliate(s) as small. Based on review of those cases, SBA believes that requirement under today industry's structure may be too restrictive and, therefore, unintentionally limiting Federal contracting opportunities for small businesses involved in electric generation and distribution. By combining an employee based size standard with the MWh based size standard, affiliations with other businesses will be fully captured through number of employees, thereby rendering the “primarily engaged” requirement unnecessary.
Accordingly, SBA has considered adding a 500 employee size standard along with the 8 million MWh size standard and removing Footnote 1. The 500 employee size standard is based on a comparison of the small business coverage ratios under the proposed 8 million MWh size standard and the same small business coverage ratio in terms of number of employees. An electric power generator with 250 to 500 employees has a market share of approximately 0.3 percent and the cumulative market share of approximately 9 percent of the industry electric output. Although SBA could have also considered proposing a 250 employee size standard, it believes that a 500 employee size standard is more appropriate for two reasons. First, a 500 employee size standard is more consistent with SBA's “Size Standards Methodology” that considers 500 employees as a starting point (
Adding number of employees as a component of the size standard would not be unique to industries in NAICS Industry Group 2211. The small business size standard for NAICS 324110, Petroleum Refineries, has had two components to its size standard for at least 20 years. Currently a petroleum refiner is small for Federal government procurement if it has no more than 1,500 employees and refining capacity of 125,000 barrels per calendar day.
As the second alternative to increasing the current size standard to 8 million MWh, SBA also considered proposing to replace the current MWh based size standard with a 500 employee size standard. An employee based size standard has several advantages over the MWh based size standard. First, as stated earlier, the “primarily engaged” requirement (Footnote 1) would no longer be necessary under the employee based size standard as it will capture the total size of firms that are involved in both electric services industries and nonelectric industries. Second, this would eliminate the difficulty in ascertaining the “primarily engaged” requirement in size status protests involving companies that are engaged in both electric services and other industries. Third, without the “primarily engaged” requirement under an employee based size standard, new entrants to electric power industry (especially small firms that generate electric power using alternative sources and still have significant involvement in other industries) can qualify for small business contracting opportunities. Fourth, the number of employees is a more appropriate measure to determine small business size status. Under the MWh based measure, to qualify as small for electric services only the electric output generated, transmitted, or distributed is counted. All other activities of the firm are not counted in determining its size. Consequently, a firm involved in multiple industries may be significantly larger than another firm at the same electric output level that is exclusively involved in electric services. This is inconsistent with how SBA defines size standards for other industries in which the size of a firm includes the employees or receipts from all industries. Fifth, the number of employees would also be consistent with the size measure SBA uses for all manufacturers, and several other industries. SBA also uses an employee based size standard to establish eligibility to provide manufactured products for Federal government as small distributors. Electric generation, while not classified as manufacturing under the NAICS, involves processes that are akin to manufacturing in creating electric power. The process transforms some form of raw materials (such as fossil fuel, wind, solar, hydro,
Among the three options considered, SBA strongly favors, for the reasons discussed above, adopting the second alternative to the MWh based size standard that would replace the current 4 million MWh size standard and the “primarily engaged” requirement in Footnote 1 with an employee based size standard of 500 employees. SBA is specifically interested in comments addressing adverse consequences, if any, of using a 500 employee size
To simplify size standards, SBA has established or proposed common size standards for closely related industries in other NAICS Sectors. Within NAICS Sector 22, SBA is proposing a 500 employees common size standard for all industries in NAICS Industry Group 2211 for consistency with the current common size standard and for simplification of size standards by having fewer differing size standard levels. In addition, as mentioned earlier, Census suppresses much of the industry level data due to the limited number of electric generation, transmission, and distribution firms. The data reflect that activity is concentrated among a few large firms. This makes analyzing industry specific size standards extremely difficult. In addition, many businesses engaged in electric services also operate in one or two of the other industries. Consequently, industry specific size standards may result in businesses typically engaged in other closely related industries subject to differing size standards.
SBA has determined that no firm in NAICS Sector 22, Utilities, for which it has proposed to increase or modify size standards, will be large enough at the proposed size standard to dominate its field of operation. At the proposed size standards, if adopted, small business shares of total industry receipts among those industries vary from 0.3 percent to 1.5 percent. These levels of market share effectively preclude a firm at the proposed size standards from exerting control on its industry.
Based on the analyses discussed above, SBA proposes to increase receipts based size standards for three industries and change measure of size from the megawatt hours to the number of employees in six industries in Sector 22. The proposed changes are summarized in Table 4, Summary of Proposed Size Standards Revisions, below.
SBA invites public comments on this proposed rule, especially on the following issues.
1. To simplify size standards, SBA proposes eight fixed levels for receipts based size standards: $5 million, $7 million, $10 million, $14 million, $19 million, $25.5 million, $30 million, and $35.5 million. SBA invites comments on whether simplification of size standards in this way is necessary and if these proposed fixed size levels are appropriate. SBA welcomes suggestions on alternative approaches to simplifying small business size standards.
2. SBA seeks feedback on whether the proposed levels of size standards are appropriate given the economic characteristics of each industry. SBA also seeks feedback and suggestions on alternative standards, if they would be more appropriate, including whether the number of employees is a more suitable measure of size for certain industries that currently have either receipts or megawatt hours based size standards and what that employee level should be.
3. SBA's proposed size standards are based on its evaluation of five primary factors: average firm size, average assets size (as a proxy of startup costs and entry barriers), four-firm concentration ratio, distribution of firms by size, and the level and small business share of Federal contracting dollars. SBA welcomes comments on these factors and/or suggestions of other factors that it should consider for assessing industry characteristics when evaluating or revising size standards. SBA also seeks information on other relevant data sources, if available.
4. SBA gives equal weight to each of the five primary factors in all industries. SBA seeks feedback on whether it should continue giving equal weight to each factor or whether it should give more weight to one or more factors for certain industries. Recommendations to weigh some factors more than others should include suggestions on specific weights for each factor for those industries along with supporting information.
5. For some industries, based on its analysis of industry and program data, SBA proposes to increase the existing size standards by a large amount (such as NAICS 221310 and 221320) while for NAICS 221330 the proposed increase is modest. SBA seeks feedback on whether it should, as a policy, limit the increase to a size standard and/or whether it should, as a policy, establish minimum or maximum values for its size standards. SBA seeks suggestions on appropriate levels of changes to size standards and on their minimum or maximum levels.
6. SBA has proposed to replace the current 4 million megawatt hours size standard for all six industries in NAICS Industry Group 2211 with a 500 employee size standard and eliminate Footnote 1 requiring that a business concern be primarily engaged in electric generation, transmission, or distribution to qualify as small for Federal small
7. SBA also considered proposing to increase the current MWh based size standard for electric services industries to 8 million MWh as one alternative and to add a 500 employee size standard to the updated 8 million MWh standard as another alternative. Under the latter alternative, SBA also considered proposing to eliminate Footnote 1. SBA seeks comments on whether a combination of megawatt hours and the number of employees is a more appropriate size standard than either the number of employees only or megawatt hours only.
8. If SBA were to adopt only the MWh based size standard of 8 million MWh for NAICS Industry Group 2211, it considered revising Footnote 1 to read as follows: “NAICS codes 221111, 221112, 221113, 221119, 221121, and 221122—A firm, combined with its affiliates, is small if its primary industry is the generation, transmission, and/or distribution of electric energy for sale, and its total electric output for the preceding fiscal year did not exceed 8 million megawatt hours. In determining small business eligibility, the megawatt hours of the firm and each affiliate are combined and the determination of primary industry is based on the provisions of 13 CFR 121.107.” SBA seeks comments on whether the revision to the existing footnote is necessary and if so whether the revised footnote will sufficiently clarify and improve upon the application of a primary industry requirement.
9. SBA has proposed a 500 employee based common size standard for all industries within NAICS Industry Group 2211 (electric generation, transmission, and distribution). SBA seeks comments on whether it should continue using a common size standard or adopt separate size standard for electric generation, transmission, and distribution. If commenters believe that separate size standards would be more appropriate, they should explain why and recommend appropriate size standards for specific industries.
10. For analytical simplicity and efficiency, in this proposed rule, SBA has refined its size standard methodology to obtain a single value as a proposed size standard instead of a range of values as it used in its past size regulations. SBA welcomes any comments on this procedure and suggestions on alternative methods.
Public comments on the above issues are very valuable to SBA for validating its size standard methodology and proposed revisions to size standards in this proposed rule. This will help SBA to move forward with its review of size standards for other NAICS Sectors. Commenters addressing size standards for a specific industry or a group of industries should include relevant data and/or other information supporting their comments. If comments relate to using size standards for Federal procurement programs, SBA suggests that commenters provide information on the size of contracts, the size of businesses that can undertake the contracts, start-up costs, equipment and other asset requirements, the amount of subcontracting, other direct and indirect costs associated with the contracts, the use of mandatory sources of supply for products and services, and the degree to which contractors can mark up those costs. Compliance With Executive Orders 12866, 13563, 12988 and 13132, the Paperwork Reduction Act (44 U.S.C. Ch. 35) and the Regulatory Flexibility Act (5 U.S.C. 601-612).
The Office of Management and Budget (OMB) has determined that this proposed rule is a “significant” regulatory action for purposes of Executive Order 12866. Accordingly, the next section contains SBA's Regulatory Impact Analysis. This is not a “major rule,” however, under the Congressional Review Act (5 U.S.C. 800).
SBA believes that the proposed size standards for a number of industries in NAICS Sector 22, Utilities, will better reflect the economic characteristics of small businesses and the Federal government marketplace in those industries. SBA's mission is to aid and assist small businesses through a variety of financial, procurement, business development and advocacy programs. To assist the intended beneficiaries of these programs, SBA must establish distinct definitions of which businesses are deemed small businesses. The Small Business Act (15 U.S.C. 632(a)) delegates to SBA's Administrator the responsibility for establishing small business definitions. The Act also requires that small business definitions vary to reflect industry differences. The recently enacted Small Business Jobs Act also requires SBA to review all size standards and make necessary adjustments to reflect market conditions. The Supplementary Information section of this proposed rule explains SBA's methodology for analyzing a size standard for a particular industry.
The most significant benefit to businesses obtaining small business status because of this rule is gaining eligibility for Federal small business assistance programs. These include SBA's financial assistance programs, economic injury disaster loans, and Federal procurement programs intended for small businesses. Federal procurement programs provide targeted opportunities for small businesses under SBA's business development programs, such as 8(a), Small Disadvantaged Businesses (SDB), small businesses located in Historically Underutilized Business Zones (HUBZones), women-owned small businesses (WOSB), and service-disabled veteran-owned small business concerns (SDVO SBC). Federal agencies may also use SBA size standards for a variety of other regulatory and program purposes. These programs assist small businesses to become more knowledgeable, stable, and competitive. In nine industries for which SBA has proposed increasing size standards, SBA estimates that about 400 additional firms will obtain small business status and become eligible for these programs. That represents approximately seven percent of the total number of firms that are classified as small under the current standards in all industries within NAICS Sector 22 that are reviewed in this proposed rule. If adopted as proposed, this will increase the small business share of total industry receipts from approximately 21 percent under the current size standards to 27 percent.
Three groups will benefit from these proposed size standards if they are adopted as proposed: (1) Some businesses that are above the current size standards will gain small business status under the revised size standards, thereby enabling them to participate in Federal small business assistance programs; (2) growing small businesses that are close to exceeding the current size standards will be able to retain their small business status under the revised size standards, thereby enabling them to continue their participation in the
Under SBA's 7(a) Business and 504 Loan Programs, based on the fiscal years 2008 to 2010 data, SBA estimates that around 10 to 15 additional loans totaling about $2 million to $3 million in Federal loan guarantees could be made to these newly defined small businesses under the proposed size standards. Increasing the size standards will likely result in an increase in small business guaranteed loans to businesses in these industries, but it would be impractical to try to estimate exactly the extent of their number and total amount loaned. Under the Jobs Act, SBA can now guarantee substantially larger loans than in the past. In addition, the Jobs Act established an alternative size standard ($15 million in tangible net worth and $5 million in net income after income taxes) for business concerns that do not meet the size standards for their industry. Therefore, SBA finds it similarly difficult to quantify the impact of these proposed standards on its 7(a) and 504 Loan Programs.
Newly defined small businesses will also benefit from SBA's Economic Injury Disaster Loan (EIDL) Program. However, since the benefit under this program is contingent on the occurrence and severity of a disaster, SBA cannot make a meaningful estimate of benefits for future disasters.
To the extent that those 400 newly defined additional small firms could become active in Federal procurement programs, the proposed changes, if adopted, may entail some additional administrative costs to the Federal Government associated with additional bidders for Federal small business procurement opportunities. In addition, there could be more firms seeking SBA guaranteed loans, more firms eligible for enrollment in the CCR's Dynamic Small Business Search database and more firms seeking certification as 8(a) or HUBZone firms or those qualifying for small business, WOSB, SDVO SBC, and SDB status. Among those newly defined small businesses seeking SBA assistance, there could be some additional costs associated with compliance and verification of small business status and protests of small business status. These added costs will be minimal because mechanisms are already in place to handle these administrative requirements.
Additionally, the costs to the Federal Government may be higher on some Federal contracts. With a greater number of businesses defined as small, Federal agencies may choose to set aside more contracts for competition among small businesses rather than using full and open competition. The movement from unrestricted to small business set-aside contracting might result in competition among fewer total bidders, although there will be more small businesses eligible to submit offers. However, the additional costs associated with fewer bidders, however, are expected to be minor since, as a matter of law, procurements may be set aside for small businesses or reserved for the 8(a), HUBZone, WOSB, or SDVO SBC Programs only if awards are expected to be made at fair and reasonable prices. In addition, higher costs may result if more full and open contracts are awarded to HUBZone businesses that receive price evaluation preferences.
The proposed size standards, if adopted, may have some distributional effects among large and small businesses. Although SBA cannot estimate with certainty the actual outcome of the gains and losses among small and large businesses, it can identify several probable impacts. There may be a transfer of some Federal contracts to small businesses from large businesses. Large businesses may have fewer Federal contract opportunities as Federal agencies decide to set aside more Federal contracts for small businesses. In addition, some Federal contracts may be awarded to HUBZone firms instead of large businesses since these firms may be eligible for a price evaluation preference for contracts when they compete on a full and open basis. Similarly, currently defined small businesses may obtain fewer Federal contracts due to the increased competition from more businesses defined as small. This transfer may be offset by a greater number of Federal procurements set aside for all small businesses. The number of newly defined and expanding small businesses that are willing and able to sell to the Federal Government will limit the potential transfer of contracts away from large and currently defined small businesses. SBA cannot estimate the potential distributional impacts of these transfers with any degree of precision. The proposed revisions to the existing size standards for NAICS Sector 22, Utilities, are consistent with SBA's statutory mandate to assist small business. This regulatory action promotes the Administration's objectives. One of SBA's goals in support of the Administration's objectives is to help individual small businesses succeed through fair and equitable access to capital and credit, Government contracts, and management and technical assistance. Reviewing and modifying size standards, when appropriate, ensures that intended beneficiaries have access to the small business programs designed to assist them.
A description of the need for this regulatory action and benefits and costs associated with this action, including possible distributional impacts that relate to Executive Order 13563, is included above in the Regulatory Impact Analysis under Executive Order 12866.
In an effort to engage interested parties in this action, SBA has presented its size standards methodology (discussed above under Supplementary Information) to various industry associations and trade groups. SBA also met with various industry groups to get their feedback on its methodology and other size standards issues. In addition, SBA presented its size standards methodology to businesses in 13 cities in the U.S. and sought their input as part of the Jobs Act Tours. The presentation included information on the status of the comprehensive size standards review and on how interested parties can provide SBA with input and feedback on size standards review.
Additionally, SBA sent letters to the Directors of the Offices of Small and Disadvantaged Business Utilization (OSDBU) at several Federal agencies with considerable procurement responsibilities requesting their feedback on how the agencies use SBA size standards and whether current standards meet their programmatic needs (both procurement and non-procurement). SBA gave appropriate consideration to all input, suggestions, recommendations, and relevant information obtained from industry groups, individual businesses, and Federal agencies in preparing this proposed rule.
The review of size standards in NAICS Sector 22, Utilities, is consistent with Executive Order 13563, Section 6, calling for retrospective analyses of existing rules. As discussed previously, SBA's last comprehensive review of size standards was during the late 1970s and early 1980s. Since then, except for periodic adjustments of monetary based size standards for inflation, most reviews were limited to a few specific industries in response to requests from the public and Federal agencies. SBA recognizes that changes in industry structure and the Federal marketplace over time have rendered existing size standards for some industries no longer supportable by current data.
This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice reforms, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
For the purposes of Executive Order 13132, SBA has determined that this proposed rule will not have substantial, direct 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. Therefore, SBA has determined that this proposed rule has no federalism implications warranting preparation of a federalism assessment.
For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA has determined that this rule will not impose new reporting or record keeping requirements.
Under the Regulatory Flexibility Act (RFA), this proposed rule, if adopted, may have a significant impact on a substantial number of small entities in NAICS Sector 22, Utilities. As described above, this rule may affect small entities seeking Federal contracts, loans under SBA's 7(a), 504 and Economic Injury Disaster Loan Programs, and assistance under other Federal small business programs.
Immediately below, SBA sets forth an initial regulatory flexibility analysis (IRFA) of this proposed rule addressing the following questions: (1) What are the need for and objective of the rule?; (2) What are SBA's description and estimate of the number of small entities to which the rule will apply?; (3) What are the projected reporting, record keeping and other compliance requirements of the rule?; (4) What are the relevant Federal rules that may duplicate, overlap or conflict with the rule?; and (5) What alternatives will allow the Agency to accomplish its regulatory objectives while minimizing the impact on small entities?
Most of the size standards in NAICS Sector 22, Utilities, have not been reviewed since the early 1980s. Technology, productivity growth, international competition, mergers and acquisitions, and updated industry definitions may have changed the structure of many industries in the Sector. Such changes can be sufficient to support a revision to size standards for some industries. Based on its analysis of the latest data available, SBA believes that the proposed size standards in this rule more appropriately reflect the size of businesses in those industries that need Federal assistance. The recently enacted Small Business Jobs Act also requires SBA to review all size standards and make necessary adjustments to reflect market conditions.
If the proposed rule is adopted in its present form, SBA estimates that about 400 additional firms will become small because of proposed revisions to size standards in nine industries. That represents about 7 percent of total firms that are small under current size standards in all industries within NAICS Sector 22 covered by this proposed rule. This will result in an increase in the small business share of total industry receipts for those industries from about 21 percent under the current size standards to about 27 percent under the proposed size standards. The proposed size standards, if adopted, will enable more small businesses to retain their small business status for a longer period. Many have lost their eligibility and find it difficult to compete at such low levels with companies that are significantly larger than they are. SBA believes the competitive impact will be positive for existing small businesses and for those that exceed the current size standards but are on the very low end of those that are not small. They might otherwise be called or referred to as mid-sized businesses, although SBA only defines what is small; other entities are other than small.
Proposed size standards changes do not impose any additional reporting or record keeping requirements on small entities. However, qualifying for Federal procurement and a number of other Federal programs requires that entities register in the Central Contractor Registration (CCR) database and certify at least annually that they are small in the Online Representations and Certifications Application (ORCA). Therefore, businesses opting to participate in those programs must comply with CCR and ORCA requirements. There are no costs associated with either CCR registration or ORCA certification. Changing size standards alters eligibility for SBA programs that assist small businesses, but does not impose a regulatory burden as they neither regulate nor control business behavior.
Under § 3(a)(2)(C) of the Small Business Act, 15 U.S.C. 632(a)(2)(c), Federal agencies must use SBA's size standards to define a small business, unless specifically authorized by statute to do otherwise. In 1995, SBA published in the
However, the Small Business Act and SBA's regulations allow Federal agencies to develop different size standards if they believe that SBA's size standards are not appropriate for their programs, with the approval of SBA's Administrator (13 CFR 121.903). Additionally, the Regulatory Flexibility Act authorizes an Agency to establish an alternative small business definition after consultation with the Office of Advocacy of the U.S. Small Business Administration (5 U.S.C. 601(3)).
By law, SBA is required to develop numerical size standards for establishing eligibility for Federal small
Administrative practice and procedure, Government procurement, Government property, Grant programs—business, Individuals with disabilities, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
For the reasons set forth in the preamble, SBA proposes to amend 13 CFR part 121 as follows:
1. The authority citation for part 121 continues to read as follows:
15 U.S.C. 632, 634(b)(6), 662, and 694a(9).
2. In § 121.201, in the table, revise the entries for “221111”, “221112”, “221113”, “221119”,”221121”, “221122”, “221310”, “221320”, and “221330” to read as follows:
3. In § 121.201, at the end the table “Small Business Size Standards by NAICS Industry,” remove and reserve Footnote 1 to read as follows:
1. [Reserved].
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM); rescission.
We propose to rescind Airworthiness Directive (AD) 200-07-11 for all Piaggio Aero Industries S.p.A Model P-180 airplanes. That AD was prompted by mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Italy. We issued that AD to prevent the brake hydraulic fluid from leaking because of the brake assembly rods contacting the brake valve tubing, which could result in the inability to adequately stop the airplane during ground operations. Since we issued that AD, we have determined this is no longer an unsafe condition and that regularly scheduled annual inspections address this subject.
We must receive comments on this proposed AD by September 4, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Mike Kiesov, Aerospace Safety Engineer, FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On March 29, 2000, we issued AD 2000-07-11, Amendment 39-11665 (65 FR 19305, April 11, 2000). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 2000-07-11 (65 FR 19305, April 11, 2000), we determined the unsafe condition no longer exists. Review of the Piaggio Model P-180 service history and maintenance requirements shows that regularly scheduled annual inspections address this issue. Therefore, the need to continue to address this subject as an unsafe condition through an AD is not necessary.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued 2012-0095-CN, dated May 31, 2012 (referred to after this as “the MCAI”). The MCAI states:
After a 1999 training session during which conflicting inputs were given to the brake pads between pilot and copilot, a brake system rod was found deflected. The rod, in this bent condition, could possibly wear and damage the tubings connected to the brake valves, with consequent fluid leakage.
Prompted by these findings, PAI issued Service Bulletin (SB) 80-0107, providing instructions for repetitive inspections of the affected rods and tubings. As this was considered to be a potentially unsafe condition, Registro Aeronautico Italiano (RAI), the predecessor of ENAC (Ente Nazionale per l'Aviazione Civile), issued Prescrizione di Aeronavigabilità (PA) No. 1999-219, which required the repetitive inspections as detailed in PAI SB 80-0107 and, depending on findings, replacement of rod or tubing.
Since that AD was issued, the repetitive inspections of SB 80-0107 have been included as regular tasks into the maintenance schedule of both Avanti and Avanti II aeroplanes. In addition, no other cases of brake system bent rods have been reported, nor have any rods been replaced for damage in the P.180 fleet since that occurrence. Based on the available information, this is no longer considered to be an unsafe condition. Prompted by this determination, PAI issued Revision ZZ of SB 80-0107, which cancels the original SB 80-0107.
For the reasons described above, this Notice is issued to cancel ENAC PA no. 1999-219 dated 03 May 1999.
You may obtain further information by examining the MCAI in the AD docket.
We propose this AD because we evaluated all available information and determined the existing AD is no longer necessary.
This proposed AD would rescind AD 2000-07-11 (65 FR 19305, April 11, 2000).
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-11665 (65 FR 19305, April 11, 2000), and adding the following new AD:
We must receive comments by September 4, 2012.
This AD applies to Piaggio Aero Industries S.p.A. Model P-180 airplanes, all serial numbers, certificated in any category.
This AD rescinds AD 2000-07-11 (65 FR 19305, April 11, 2000).
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 32; Landing Gear.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Piper Aircraft, Inc. (type certificate previously held by The New Piper Aircraft Inc.) Models PA-18 and PA-19 airplanes. This proposed AD was prompted by incidents of inadvertent magneto switch shut off in flight. This proposed AD would require moving all magneto switches that are now or are at any time located on the left cabin panel, adjacent to the front seat, to the instrument panel. We are proposing this AD to correct the unsafe condition on these products.
We must receive comments on this proposed AD by September 4, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Gary Wechsler, Aerospace Engineer, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474-5575; fax: (404) 474-5606; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Three forced landings of Piper Aircraft, Inc. Model PA-18 airplanes with magneto switches located on the left cabin panel, adjacent to the front seat, were caused by pilots unknowingly turning off the magneto switches and causing in-flight engine shutdowns. In each event, the pilot was performing other flight tasks, such as re-trimming the airplane, and the pilot's arm and/or article of clothing accidently turned off the magneto switches.
Those parties that may desire an alternative method of compliance (AMOC) are encouraged to work together with pertinent type clubs toward a single global AMOC.
Any Piper Aircraft, Inc. Model PA-18 airplane with the magneto switch currently located away from the left cabin panel, adjacent to the front seat, including those already placed on an airplane's wing root, is not at a high risk of an inadvertent in-flight engine shutdown and loss of flight control and are not the subject of this proposed AD.
This condition, if not corrected, could result in engine shut down and possible loss of control.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require removing the magneto switch and ignition leads from the left cabin panel adjacent to the front seat and install a key-type ignition switch on the instrument panel.
We estimate that this proposed AD affects 295 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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):
We must receive comments by September 4, 2012.
None.
This AD applies to Piper Aircraft, Inc. (type certificate previously held by The New Piper Aircraft Inc.) Models PA-18, PA-18 “105” (Special), PA-18S, PA-18S “105” (Special), PA-18A, PA-18 “125” (Army L-21A), PA-18S “125”, PA-18AS “125”, PA-18 “135” (Army L-21B), PA-18A “135”, PA-18S “135”, PA-18AS “135”, PA-18 “150”, PA-18A “150”, PA-18S “150”, PA-18AS “150”, PA-19 (Army L-18C), and PA-19S airplanes, all serial numbers, that:
(1) Are certificated in any category; and
(2) Are now or at any time equipped with a magneto switch installed on the left cabin panel, adjacent to the front seat.
Model PA-18 airplanes with the magneto switch located away from the left cabin panel, adjacent to the front seat, including those currently placed on an airplane's wing root, are not subject to the requirements of this AD.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 74, Engine Ignition.
This AD was prompted by incidents of inadvertent magneto switch shut off in flight. We are issuing this AD to prevent engine shut down and possible loss of control.
Comply with this AD within the compliance times specified, unless already done.
Within the next 12 months after the effective date of this AD, do the following in accordance with FAA Advisory Circular 43.13-2B, Chapter 11, which can be found at
(1) Remove the magneto switch and ignition leads from the left cabin panel, adjacent to the front seat, install either a Piper part number 15302-02, -04 or -05 (or FAA approved equivalent part number) key-type ignition switch on the instrument panel, not adjacent to or below (the height of) the engine fuel primer, attach ignition leads, maintaining shielded or unshielded configuration existing at time of new switch installation, and secure leads following the procedures in FAA Advisory Circular 43.13-2B, Chapter 11, which can be found at
(2) Perform engine run to verify proper engine operation. Following regular run-up procedures, allow the engine to reach operating temperatures and do a normal magneto check.
(1) The Manager, Atlanta Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Gary Wechsler, AerospaceEngineer, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474-5575; fax: (404) 474-5606; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. This proposed AD was prompted by reports that airplanes with a Class C cargo (baggage) compartment have liners that do not meet flammability requirements. This proposed AD would require replacing the existing cargo compartment liners with liners that comply. We are proposing this AD to prevent inadequate fire protection in the cargo compartment and consequent uncontrolled fire.
We must receive comments on this proposed AD by September 4, 2012.
You may send comments by any of the following methods:
•
•
•
•
For Bombardier service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email
You may examine the AD docket on the Internet at
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone 516-228-7318; fax 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2012-11, dated March 23, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
It was found that the cargo compartment liners installed on CL-600-2B19 configured with Class C cargo compartment do not all meet the flammability requirements. Non-compliant cargo compartment liners may not provide adequate fire protection and could lead to an uncontrolled baggage bay fire.
This AD mandates the replacement of existing cargo compartment liners with compliant cargo compartment liners.
Aeroplanes modified with [TCCA] Supplemental Type Certificate (STC) Number SA01-19 Issue No. 1 [corresponding FAA STC ST01292NY, amended July 7, 2003
Bombardier, Inc. issued the following service information:
• Bombardier Service Bulletin 601R-25-187, Revision A, dated September 1, 2011;
• Bombardier Service Bulletin 601R-25-198, dated September 1, 2011; and
• Bombardier Service Bulletin 601R-25-199, dated September 1, 2011.
Comtek Aftermarket Structures issued COMTEK Service Bulletin COMSB-25-52-001, Revision A, dated December 29, 2011.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 574 products of U.S. registry. We also estimate that it would take about 87 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 $43,559 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $29,247,596, or $50,954 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.
We prepared a regulatory evaluation of the estimated costs to comply with
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by September 4, 2012.
None.
This AD applies to Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category; serial numbers 7003 and subsequent, configured with a Class C cargo compartment, including airplanes modified by Supplemental Type Certificate (STC) ST01292NY amended July 7, 2003.
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
This AD was prompted by reports that airplanes with a Class C cargo (baggage) compartment have liners that do not meet flammability requirements. We are issuing this AD to prevent inadequate fire protection in the cargo compartment and consequent uncontrolled fire.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 28 months after the effective date of this AD, replace the cargo compartment liners in accordance with the Accomplishment Instructions of the applicable service bulletin specified in paragraphs (g)(1) through (g)(3) of this AD. For airplanes that do not have a configuration specified in paragraphs (g)(1) through (g)(3) of this AD: Prior to accomplishing the replacement, convert the cargo compartment liner to one of the configurations specified in paragraphs (g)(1) through (g)(3) of this AD, in accordance with a method approved by the FAA or Transport Canada Civil Aviation (TCCA) (or its delegated agent). To meet the requirements of this AD, the applicable Bombardier Service Bulletin or COMTEK Service Bulletin must be followed in its entirety, with no mixing of Bombardier-supplied or COMTEK-supplied liners.
(1) For airplanes with North American cargo compartment configuration: Bombardier Service Bulletin 601R-25-187, Revision A, dated September 1, 2011; or COMTEK Service Bulletin COMSB-25-52-001, Revision A, dated December 29, 2011.
(2) For airplanes with European cargo compartment configuration: Bombardier Service Bulletin 601R-25-198, dated September 1, 2011.
(3) For airplanes with Universal cargo compartment configuration: Bombardier Service Bulletin 601R-25-199, dated September 1, 2011.
Note (1) to paragraph (g) of this AD: COMTEK Service Bulletin COMSB-25-52-001, Revision A, dated December 29, 2011, installs STC ST01292NY amended March 21, 2012 (corresponds to Transport Canada Civil Aviation (TCCA) STC SA01-19, Issue 2) flammability-compliant cargo liner replacement panels.
This paragraph provides credit for certain actions specified in paragraph (g)(1) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 601R-25-187, dated July 21, 2011.
(1) As of the effective date of this AD, no person may install a cargo compartment liner, identified as “Pre-SB Part Number” in paragraph 1.M. of the Bombardier service bulletins identified in paragraphs (g)(1) through (g)(3) of this AD; or “Pre-SB P/N” in paragraph 3.D. of COMTEK Service Bulletin COMSB-25-52-001, Revision A, dated December 29, 2011; or FAA STC ST01292NY amended July 7, 2003
The following provisions also apply to this AD:
(1) Refer to MCAI Canadian Airworthiness Directive CF-2012-11, dated March 23, 2012, and the service information identified in paragraphs (k)(1)(i) through (k)(1)(iv) of this AD, for related information.
(i) Bombardier Service Bulletin 601R-25-187, Revision A, dated September 1, 2011.
(ii) Bombardier Service Bulletin 601R-25-198, dated September 1, 2011.
(iii) Bombardier Service Bulletin 601R-25-199, dated September 1, 2011.
(iv) COMTEK Service Bulletin COMSB-25-52-001, Revision A, dated December 29, 2011.
(2) For Bombardier service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email
Federal Aviation Administration (FAA), DOT.
Notice of Proposed Rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for MDHI Model 500N, 600N, and MD900 helicopters to require determining the cure date for each NOTAR fan blade tension-torsion strap (T-T strap), establishing a calendar-time retirement life for certain T-T straps, reducing the retirement life of certain T-T straps, marking each T-T strap with the expiration date, creating a component record card for each T-T strap, and revising the airworthiness limitations section of the maintenance manual to reflect the changes to the retirement life. This proposal is prompted by a report from the T-T strap manufacturer that, over a period of time, moisture may reduce the strength of a T-T strap. The proposed actions are intended to prevent failure of a T-T strap, loss of directional control and subsequent loss of control of the helicopter.
We must receive comments on this proposed AD by September 17, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact MD Helicopters, Inc., Attn: Customer Support Division, 4555 E. McDowell Rd., Mail Stop M615, Mesa, Arizona 85215-9734, telephone 1-800-388-3378, fax 480-346-6813, or on the Web at
John Cecil, Aviation Safety Engineer, FAA, Los Angeles Aircraft Certification Office, Airframe Branch, 3960 Paramount Blvd., Lakewood, California 90712-4137; telephone 562-627-5228, fax 562- 627-5210; 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.
The manufacturer has issued service information that indicates that it and its supplier, Lord Corporation, have determined that certain T-T straps can, over time, absorb moisture that can weaken the T-T strap. It indicates that a T-T strap failure can cause decreased directional control of the helicopter. Accordingly, it specifies, in addition to the current time-in-service (TIS) retirement life limit, an additional calendar-time retirement life limit for four part-numbered T-T straps and a reduced retirement life of 2,500 hours TIS for T-T strap, part number (P/N) 500N5311-5, if it is installed on a Model 500N or 600N helicopter after it has been installed on a Model MD900 helicopter. The calendar life would start when the package was opened.
This action proposes to adopt these new calendar-life limits for T-T straps, P/N 500N5311-5, P/N 900R3442009-101, P/N 900R3442009-103, and P/N 900R6442009-103, measured from the manufacturer's cure date or the date the package containing the T-T strap was opened exposing it to the environment outside the package. We are also proposing to adopt requirements that a component record card be created and that the T-T straps be marked with the retirement life limit calendar date (expiration date).
For the MDHI Model MD900 helicopters, AD 2006-18-01 (71 FR 51095, August 29, 2006) already contains a revised TIS life limits for T-T straps, P/N 900R3442009-103 and P/N 900R6442009-103 and additional inspection requirements for all four affected T-T straps, P/N 500N5311-5, P/N 900R3442009-101, P/N 900R3442009-103, and P/N 900R6442009-103. The requirements of that AD 2006-18-01 would remain in effect.
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 one MDHI service bulletin, which contains two service bulletin numbers, SB500N-029R3, applicable to MDHI Model 500N helicopters; and SB600N-046R3, applicable to MDHI Model 600N helicopters, dated July 9, 2008. We have also reviewed MDHI SB900-107R1, dated March 14, 2008, applicable to MDHI Model MD900 helicopters. All of the service bulletins describe procedures for establishing a retirement life for each affected T-T strap by determining the manufacturer's cure date and marking the T-T strap with an expiration date; creating a component record card for each affected T-T strap; replacing T-T straps that have been in service beyond their revised life limit; and recording compliance with their service information in the Rotorcraft Log Book.
This proposed AD would require, within six months:
• Determining the manufacturer's cure date for T-T strap, P/N 500N5311-5 (installed on MDHI Model 500N and
• Creating a component record card for each affected T-T strap and recording the expiration date on the card;
• Revising the Airworthiness Limitations Section of the applicable maintenance manual with the additional or revised retirement life limit for the T-T straps; and
• Before a T-T strap is installed on any Model 500N, 600N, or MD900 helicopter, the T-T strap be marked with the expiration date.
This proposed AD differs from the previously described service bulletins as follows:
• This AD proposes requirements for T-T straps that are installed or will be installed on the affected helicopters, but does not address a part that is in storage.
• For a T-T strap with five or more calendar years from the manufacturer's cure date, this AD proposes, before further flight, replacing the T-T strap with an airworthy T-T strap. The service bulletins specify the T-T strap to be replaced within six, 12, or 24 months, depending on the manufacturing cure date.
• The service bulletins specify to send removed parts to the manufacturer, and this proposed AD does not require this action.
• This AD proposes reducing the life limit for any T-T strap, P/N 500N5311-5, to 2500 hours TIS if the T-T strap has been installed on a MDHI Model MD900 helicopter.
We estimate that this proposed AD would affect 111 helicopters of U.S. registry, including 73 helicopters in the combined MDHI Model 500N and MDHI Model 600N fleet, and 38 MDHI Model MD900 helicopters. Determining the manufacturer's cure date, the expiration date, marking an expiration date on the T-T strap, creating the component record card, revising the applicable airworthiness limitations section of the maintenance manual, and re-installing the T-T strap would take about 40 work-hours per helicopter for Model 500N and Model 600N helicopters, and 32 work-hours per helicopter for Model MD900 helicopters, at an average labor rate of $85 per work-hour. Required parts would cost about $1,340 per T-T strap. Based on these figures, the total cost impact of the proposed AD on U.S. operators would be about $543,180 for the entire fleet, assuming all T-T straps would be marked, and assuming 11 helicopters would need T-T strap replaced (13 T-T straps per helicopter).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska 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):
MDHI Model 500N and 600N helicopters, with a NOTAR fan blade tension-torsion strap (T-T strap), part number (P/N) 500N5311-5; and MDHI Model MD900 helicopters, with a T-T strap, P/N 500N5311-5, P/N 900R3442009-101, P/N 900R3442009-103, or P/N 900R6442009-103; certificated in any category.
This AD defines the unsafe condition as a decrease, over time, in the strength of a T-T strap caused by moisture. This condition could result in failure of a T-T strap, loss of directional control, and subsequent loss of control of the helicopter.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within six months, determine the manufacturer's cure date of each of the 13 T-T straps.
(i) For a T-T strap with five or more calendar years from the manufacturer's cure date, before further flight, replace the T-T strap with an airworthy T-T strap.
(ii) For a T-T strap with less than five calendar years from the manufacturer's cure date, mark the expiration date on the T-T strap face in permanent ink.
(2) Thereafter, before installing a T-T strap, mark the expiration date on the T-T strap using permanent ink. The expiration date is five years from the date the T-T strap package was opened, or if that date was not recorded, five years from the manufacturer's cure date.
(3) On or before the date you comply with paragraph (d)(1) or (d)(2) of this AD, create a component record card for each T-T strap and record on the card the manufacturer's cure date or the date that the T-T strap package was opened, if that date was recorded previously, and the T-T strap expiration date.
(4) This AD revises the Airworthiness Limitations section of the maintenance manual by establishing:
(i) A calendar life limit for the T-T straps, P/N 500N5311-5, 900R3442009-101, 900R3442009-103, and 900R6442009-103 of
(ii) A 2,500 hour time-in-service (TIS) life limit for any T-T straps, P/N 500N5311-5, installed on a Model 500N or Model 600N helicopter that was previously installed on a Model MD900 helicopter.
For the MDHI Model MD900 helicopters, AD 2006-18-01 (71 FR 51095, August 29, 2006) contains additional TIS life limits for T-T straps, P/N 900R3442009-103 and P/N 900R6442009-103 and additional inspection requirements for all four affected T-T straps, P/N 500N5311-5, P/N 900R3442009-101, P/N 900R3442009-103, and P/N 900R6442009-103.
(1) The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: John Cecil, Aviation Safety Engineer, FAA, Los Angeles Aircraft Certification Office, Airframe Branch, 3960 Paramount Blvd., Lakewood, California 90712-4137; telephone 562-627-5228, fax 562-627-5210; 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.
MDHI has issued one service bulletin with two numbers, SB500N-029R3 for the Model 500N helicopters, and SB600N-046R3 for the Model 600N helicopters, dated July 9, 2008. MD Helicopters, Inc. has also issued SB900-107R1, dated March 14, 2008, for the Model MD900 helicopters. These service bulletins, which are not incorporated by reference, contain information related to the subject of this AD. For this service information, contact MD Helicopters, Inc., Attn: Customer Support Division, 4555 E. McDowell Rd., Mail Stop M615, Mesa, Arizona 85215-9734, telephone 1-800-388-3378, fax 480-346-6813, or on the web at
Joint Aircraft Service Component (JASC) Code: 6410: Tail rotor blades.
Internal Revenue Service (IRS), Treasury.
Correction to notice of proposed rulemaking.
This document corrects a notice of proposed rulemaking (REG-153627-08) that was published in the
William Gibbs, Sarah Bolen, or Pamela Kinard, (202) 622-6060 (not a toll-free number).
The notice of proposed rulemaking (REG-153627-08) that is the subject of this correction is under section 6057 of the Internal Revenue Code.
As published, REG-153627-08 contains an error that may prove to be misleading and is in need of clarification.
Accordingly, the publication of the notice of proposed rulemaking (REG-153627-08) that was the subject of FR. Doc. 2012-15068, is corrected as follows:
On page 37354, column 1, in the preamble, under the paragraph heading “Background”, line four of the column, the language “Employee Benefit Returns,”and file the” is corrected to read, “Employee Plan Returns,”and file the”.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Notice of opportunity to request informal public hearing; request for written comments.
Hawaii administers an occupational safety and health state plan approved by federal OSHA. During the past three years, the state plan has faced significant budgetary constraints and staffing challenges, and has requested federal OSHA assistance to ensure that workers are afforded adequate worker protection during this period. The Hawaii Director of Labor and Industrial Relations has requested a temporary modification of the state plan's approval status from final approval to initial approval, to permit exercise of supplemental federal enforcement and to allow Hawaii sufficient time and assistance to strengthen and improve its state plan performance. Hawaii has pledged to accomplish the necessary corrective action to regain final approval status in a timely manner. OSHA is soliciting written comments to ensure that all relevant information, views and data are available to the Assistant Secretary during this proceeding. Members of the public may also submit requests for an informal hearing, which will be scheduled if the Assistant Secretary finds that substantial issues are raised that necessitate a hearing.
Comments and requests for an informal hearing must be received by August 23, 2012.
Written comments: You may submit comments, identified by docket number OSHA-2012-0029, or regulatory information number (RIN) 1218-AC78, by any of the following methods:
All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at
Electronic copies of this
Section 18 of the Occupational Safety and Health Act of 1970 (the Act, 29 U.S.C. 667) provides that states that desire to assume responsibility for the development and enforcement of occupational safety and health standards may do so by submitting, and obtaining federal approval of a state plan. Procedures for state plan approval are set forth in the regulations at 29 CFR part 1902. If the Assistant Secretary, applying the criteria set forth in section 18(c) of the Act and OSHA regulations, finds that the plan provides or will provide for state standards and enforcement that are “at least as effective as” federal standards and enforcement, initial approval is granted pursuant to section 18(b) of the Act (29 U.S.C. 667(b)). A state may commence operations under its plan after this determination is made, but the Assistant Secretary retains enforcement authority during the initial-approval period, as provided by section 18(e) of the Act, which states, “[a]fter the Secretary approves a State plan submitted under subsection (b), he may, but shall not be required to, exercise his authority under sections 8, 9, 10, 13, and 17 with respect to comparable standards promulgated under section 6,” for the specified period. The Hawaii State Plan received initial federal OSHA plan approval on December 28, 1973 (39 FR 1010). The Hawaii Occupational Safety and Health Division (HIOSH) of the Hawaii Department of Labor and Industrial Relations is designated as the state agency with responsibility for administering the state plan.
Hawaii proceeded to the next phase of federal plan approval in 1984, when the state plan received “final approval” under section 18(e) of the Act. Final approval under section 18(e) requires, among other things, a finding by the Assistant Secretary that the plan, in actual operation, provides worker protection “at least as effective as” that provided by federal OSHA. A final approval determination results in the relinquishment of federal concurrent enforcement authority in the state with respect to occupational safety and health issues covered by the plan, 29 U.S.C. 667(e). Hawaii was granted final approval effective April 30, 1984 (49 FR 19182).
During the past three years, the Hawaii State Plan has faced major budgetary and hiring restraints that have significantly affected its program. Impacts on the state plan are clearly reflected in the deficiencies identified throughout recent OSHA monitoring reports. Joint efforts were made by federal OSHA and Hawaii to address these issues, yet Hawaii continues to face severe programmatic, staffing and training issues. As of March 1, 2012, the HIOSH program employed five safety inspectors and five health inspectors, which falls short of the required nine (9) safety inspectors and nine (9) health inspectors as determined by benchmarks established pursuant to a federal court order entered in
Joint efforts by federal OSHA and HIOSH to address Hawaii's worker protection needs during this period, necessitate a greater enforcement presence by OSHA in the state. In order for federal OSHA to be able to provide
Dwight Takamine, Hawaii's Director of Labor and Industrial Relations, has committed the state to making Hawaii's workplaces safe and healthful and to working “diligently toward restoring [the state's] 18(e) status as soon as possible.” OSHA notes that the 3-year evaluation requirement for final approval following initial approval (see section 18(e), second sentence) does not apply in this instance. Hawaii received initial approval in 1974, and the structural features of the state plan remain completely intact.
Today's notice proposes a modification to the Hawaii State Plan's status from final approval to initial approval in order to allow for federal OSHA to provide inspection and enforcement assistance to Hawaii. OSHA intends to make this modification in keeping with procedures at 29 CFR 1902.47 et seq. Relevant materials, including all public comments, relevant federal monitoring reports, a copy of the federal court's order under which state staffing benchmarks are established, and other pertinent documentation will be publically available in OSHA's docket office, as well as through various federal OSHA and state offices as described above. At the close of the public comment period initiated today, OSHA will review all comments submitted; will review any hearing requests; and will schedule an informal hearing if required to resolve substantial issues raised in any such requests. The Assistant Secretary's final decision will thereafter be published in the
As discussed above, modifying the Hawaii State Plan's status from final to initial approval would authorize OSHA to carry on an enforcement program to supplement that of HIOSH, including independent federal or joint state and federal inspections resulting in issuance of appropriate federal citations. However, modifying Hawaii's final approval status would not affect Hawaii's basic plan approval and would not affect Hawaii's legal authority to enforce state occupational safety and health standards in the state's workplaces. This modification would leave Hawaii's federally-approved state plan completely in place, and would simply reinstate federal OSHA's authority to supplement state enforcement during this difficult period.
Pending a final decision in the proceeding instituted today, OSHA will continue to exercise federal authority over safety and health issues excluded from coverage under the state plan; monitoring inspections including accompanied visits; and other federal authority not affected by the 1984 final approval decision.
OSHA regulations provide that in states with initially-approved plans, OSHA and the state may enter into an agreement describing the division of responsibilities between them (29 CFR 1954.3). OSHA and HIOSH are developing such an agreement, which in this case would also include a timetable for remedial action to make state operations “as least as effective” and to ensure state compliance with applicable personnel staffing benchmarks. Notice will be provided in the
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC, authorized the preparation of this notice. OSHA is issuing this notice under the authority specified by Section 6(d) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), Secretary of Labor's Order No. 1-2012 (76 FR 3912), and 29 CFR part 1905.
Coast Guard, DHS.
Proposed rule; withdrawal.
The Coast Guard is withdrawing its proposed rule concerning amendments to the regattas and marine parades regulations. The rulemaking was initiated to establish special local regulations during the swim segment of the “Ironman 70.3 National Harbor” triathlon, a marine event to be held on the waters of the Potomac River in Prince George's County, Maryland on August 5, 2012. The Coast Guard was notified on May 22, 2012 that the event had been cancelled.
The proposed rule published April 6, 2012, at 77 FR 20750, is withdrawn as of July 19, 2012.
The docket for this withdrawn rulemaking is available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
If you have questions about this notice, call or email Mr. Ronald Houck, Waterways Management Division, Sector Baltimore, MD, U.S. Coast Guard; telephone 410-576-2674, email
On April 6, 2012, we published a notice of proposed rulemaking entitled “Special Local Regulations for Marine Events; Potomac River, National Harbor Access Channel, MD” in the
The Coast Guard is withdrawing this rulemaking because the event has been cancelled.
We issue this notice of withdrawal under the authority of 33 U.S.C. 1233.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish special local regulations on the waters of Ponce Harbor in Ponce, Puerto Rico during the Cruce a Nado Internacional, a swimming event. The event is scheduled to take place on Sunday, September 2, 2012. Approximately 85 swimmers are anticipated to participate in the swimming event, and there are not expected to be any spectator vessels present during the event. These special local regulations are necessary to provide for the safety of life on the navigable waters of the United States during the event. These special local regulations would establish a swim area, where all persons and vessels, except those persons participating in the race and vessels patrolling the swim area, will be prohibited from entering, transiting through, anchoring in, or remaining within unless authorized by the Captain of the Port San Juan or a designated representative.
Comments and related material must be received by the Coast Guard on or before August 20, 2012. Requests for public meetings must be received by the Coast Guard on or before August 3, 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 Mr. Robert Cerrato, Sector San Juan Prevention Department, Coast Guard; telephone (787) 289-2097, 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
We do not now plan to hold a public meeting. But you may submit a request for one on or before June 18, 2012 using one of the methods specified under
The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to provide for the safety of life on navigable waters of the United States during the Cruce a Nado Internacional swimming event.
On September 2, 2012, Club Cruce a Nado is sponsoring the Cruce a Nado Internacional, a swimming event. The event will be held on the waters of Ponce Harbor in Ponce, Puerto Rico. Approximately 85 swimmers are anticipated to participate in the event. No spectator vessels are anticipated to be present during the event.
The proposed rule would establish special local regulations that will encompass certain waters of Ponce Harbor in Ponce, Puerto Rico. The special local regulations will be enforced from 10 a.m. until 6 p.m. on September 2, 2012. The special local regulations will establish a swim area, where all persons and vessels, except those persons participating in the race and vessels patrolling the swim area, will be prohibited from entering, transiting through, anchoring in, or remaining within unless authorized by the Captain of the Port San Juan or a designated representative.
Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the swim area by contacting the Captain of the Port San Juan by telephone at (787) 289-2041, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the swim area is granted by the Captain of the Port San Juan or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port San Juan or a designated representative. The Coast Guard will provide notice of the special local regulations by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
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.
The economic impact of this rule is not significant for the following reasons: (1) The special local regulations will be enforced for only eight hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the swim area without authorization from the Captain of the Port San Juan or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the swim area during the enforcement period if authorized by the Captain of the Port San Juan or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
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.
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 may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Ponce Harbor encompassed within the special local regulations from 10 a.m. until 6 p.m. on September 2, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
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
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship 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 special local regulations issued in conjunction with a regatta or marine parade. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. Add a temporary § 100.35T07-0495 to read as follows:
(a)
(1)
(b)
(c)
(1) Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated areas by contacting the Captain of the Port San Juan by telephone at 787-289-2041, or a designated representative via VHF radio on channel 16. If authorization is granted by the Captain of the Port San Juan or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port San Juan or a designated representative.
(2) The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is establishing special local regulations on
Comments and related material must be received by the Coast Guard on or before August 20, 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 Mr. Robert Cerrato, Sector San Juan Prevention Department, Coast Guard; telephone (787) 289-2097, 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 on or before August 9, 2012, using one of the methods specified under
The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to insure safety of life on navigable waters of the United States during the Fajardo Offshore Festival II.
On September 16, 2012, Puerto Rico Offshore Series, Inc. is sponsoring the Fajardo Offshore Festival II, a series of high-speed boat races. The races will be held on the waters of Rada Fajardo in Fajardo, Puerto Rico. Approximately 30 high-speed power boats will be participating in the races. It is anticipated that approximately 20 spectator vessels will be present during the races.
The special local regulations encompass certain waters of Rada Fajardo in Fajardo, Puerto Rico. The special local regulations will be enforced from 1 p.m. until 3 p.m. on September 16, 2012. The special local regulations consist of the following three areas: (1) A race area, where all persons and vessels, except those persons and vessels participating in the
Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the race area, buffer zone, or spectator area by contacting the Captain of the Port San Juan by telephone at (787) 289-2041, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the race area, buffer zone, or spectator area is granted by the Captain of the Port San Juan or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port San Juan or a designated representative. The Coast Guard will provide notice of the special local regulations by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
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.
The economic impact of this rule is not significant for the following reasons: (1) The special local regulations will be enforced for only two hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the race area and buffer zone, or anchor in the spectator area, without authorization from the Captain of the Port San Juan or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the race area and buffer zone, or anchor in the spectator area, during the enforcement period if authorized by the Captain of the Port San Juan or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
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.
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 may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Rada Fajardo encompassed within the special local regulations from 1 p.m. until 3 p.m. on September 16, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
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
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from
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 special local regulations issued in conjunction with a regatta or marine parade. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. Add a temporary § 100.35T07-0503 to read as follows:
(a)
(1)
(2)
(3)
(b)
(c)
(2) The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to make four separate and independent determinations for two areas in New Hampshire. First, with respect to the
Written comments must be received on or before August 20, 2012.
Submit your comments, identified by Docket ID Number EPA-R01-OAR-2012- 0229 by one of the following methods:
1.
2.
3.
4.
5.
Richard P. Burkhart, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-3912, telephone number (617) 918-1664, fax number (617) 918-0664, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
The following outline is provided to aid in locating information in this preamble:
EPA is proposing to determine that the Portsmouth, NH serious one-hour ozone nonattainment area attained the one-hour ozone NAAQS by the deadline of November 15, 1999. This proposed determination is based upon complete, quality-assured and certified air quality monitoring data for the 1997-1999 ozone seasons showing that the area had an expected ozone exceedance rate below the level of the now revoked one-hour ozone NAAQS during that period and therefore attained the standard by its applicable deadline. EPA is also proposing to determine that the Portsmouth, NH area is currently attaining the standard based on complete, certified and quality-assured ozone monitoring data since 1999 and continues to attain the standard based on the most recent three years of complete, quality-assured and certified ozone monitoring data (2009-2011). If EPA finalizes its determination, that the area is currently attaining the one-hour standard, in accordance with EPA's interpretation under the Clean Data Policy, it will relieve the area of the obligation to submit one-hour ozone contingency measures for failure to attain.
In addition, EPA is proposing to determine that the Manchester, NH marginal one-hour ozone nonattainment area attained the one-hour ozone NAAQS by the applicable deadline of November 15, 1993. This proposed determination is based upon complete, certified, quality-assured ambient air quality monitoring data for the 1991-1993 ozone seasons showing that the area had an expected ozone exceedance rate below the level of the now revoked one-hour ozone NAAQS during that period, and that the area attained the standard by its applicable deadline. EPA is also proposing to determine that the Manchester, NH area has attained the one-hour ozone standard since 1993, and continues to attain the standard based on the most recent three years of
EPA designated the Portsmouth, NH serious one-hour ozone nonattainment area as nonattainment for the one-hour ozone standard following the enactment of the Clean Air Act (CAA) Amendments of 1990. Most areas of the country that EPA designated nonattainment for the one-hour ozone NAAQS were classified by operation of law as marginal, moderate, serious, severe, or extreme, depending on the severity of the area's air quality problem. (See CAA sections 107(d)(1)(C) and 181(a).) The Portsmouth, NH one-hour ozone nonattainment area was classified as serious. The one-hour ozone attainment deadline for the area was November 15, 1999. The Portsmouth, NH area has both an approved 15 Percent Reasonable Further Progress (RFP) plan and a Post-96 RFP plan. (See 63 FR 67405, December 7, 1998; and 67 FR 18493, April 16, 2002.) The area does not have an approved one-hour attainment demonstration, or one-hour contingency measures, but if EPA finalizes its proposed one-hour determinations, there would be no requirement for the Portsmouth, NH area to submit or implement one-hour ozone contingency measures for failure to attain the standard or for the Portsmouth, NH area to submit or implement a one-hour attainment demonstration.
In addition, EPA designated the Manchester, NH one-hour ozone nonattainment area as marginal for the one-hour ozone standard. The one-hour ozone attainment deadline for this area was November 15, 1993. Marginal areas had very few CAA requirements. For example one-hour ozone marginal areas did not have to prepare or submit attainment demonstrations, RFP or contingency measures. Table 1 lists the cities and towns in the Portsmouth and Manchester, NH one-hour ozone nonattainment areas. (See also 40 CFR 81.330.)
On July 18, 1997 (62 FR 38856), EPA promulgated for the first time a new standard for ozone based on an 8-hour average concentration (the “1997 8-hour ozone NAAQS”). EPA designated and classified most areas of the country under the eight-hour ozone NAAQS in an April 30, 2004 final rule (69 FR 23858). EPA designated Southern New Hampshire as nonattainment for the 1997 8-hour ozone NAAQS. This area is known as the Boston-Manchester-Portsmouth (SE), NH area. At the time of eight-hour designations, the Boston-Manchester-Portsmouth (SE), NH area did not meet the one-hour ozone standard. The Boston-Manchester-Portsmouth (SE), NH area is composed of portions of three separate one-hour ozone nonattainment areas: (1) The Portsmouth, NH serious one-hour ozone nonattainment area; (2) the Boston-Lawrence-Worcester, MA-NH one-hour ozone nonattainment area; and (3) the Manchester, NH marginal one-hour ozone nonattainment area. This proposed action concerns the Portsmouth, NH serious one-hour ozone nonattainment area, and the Manchester, NH marginal one-hour ozone nonattainment area. The Boston-Lawrence-Worcester, MA-NH one-hour ozone nonattainment area, was the subject of a previous
On April 30, 2004, EPA issued a final rule (69 FR 23951) entitled “Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 1,” referred to as the Phase 1 Rule. Among other matters, this rule revoked the one-hour ozone NAAQS in most areas of the country, effective June 15, 2005. (See 40 CFR 50.9(b); 69 FR at 23996; and 70 FR 44470, August 3, 2005.) The Phase 1 Rule also set forth how anti-backsliding principles will ensure continued progress toward attainment of the eight-hour ozone NAAQS by identifying which one-hour requirements remain applicable in an area after revocation of the one-hour ozone NAAQS. Although EPA revoked the one-hour ozone standard (effective June 15, 2005), eight-hour ozone nonattainment areas remain subject to certain one-hour anti-backsliding requirements based on their one-hour ozone classification.
EPA is proposing two separate and independent determinations for the Portsmouth, NH serious one-hour ozone nonattainment area. First, EPA is proposing to determine that the area attained the one-hour ozone standard by its attainment deadline, the end of the 1999 ozone season, and second, that the area continues to attain that NAAQS. If EPA finalizes its proposed determinations, there would be no requirement for the Portsmouth, NH area to submit or implement one-hour ozone contingency measures for failure to attain that standard.
In addition, EPA is proposing to determine that the Manchester, NH marginal one-hour ozone nonattainment area attained the one-hour ozone standard by its attainment date, the end of the 1993 ozone season, and that the area continues to attain that NAAQS. Since the Manchester, NH area is a marginal nonattainment area for the one-hour ozone standard, the area has no CAA-required contingency measures for failure to attain the one-hour NAAQS.
Although the one-hour ozone NAAQS as promulgated in 40 CFR 50.9 includes no discussion of specific data handling conventions, EPA's publicly articulated position and the approach long since universally adopted by the air quality management community is that the interpretation of the one-hour ozone standard requires rounding ambient air quality data consistent with the stated level of the standard, which is 0.12 parts per million (ppm). 40 CFR 50.9(a) states that: “The level of the national one-hour primary and secondary ambient air quality standards for ozone * * * is 0.12 parts per million. * * * The standard is attained when the expected number of days per calendar year with maximum hourly average concentrations of 0.12 parts per million * * * is equal to or less than 1, as determined by appendix H to this part.” Thus, compliance with the NAAQS is based on comparison of air quality concentrations with the standard and on the number of days that standard has been exceeded, adjusted for the number of missing days.
For comparison with the NAAQS, EPA has communicated the data handling conventions for the one-hour ozone NAAQS in guidance documents. As early as 1979, EPA issued guidance stating that the level of our NAAQS dictates the number of significant figures to be used in determining whether the standard was exceeded. The stated level of the standard is taken as defining the number of significant figures to be used in comparisons with the standard. For example, a standard level of 0.12 ppm means that measurements are to be rounded to two decimal places (0.005 rounds up), and, therefore, 0.125 ppm is the smallest concentration value in excess of the level of the standard. (See, “Guideline for the Interpretation of Ozone Air Quality Standards,” EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979.) EPA has consistently applied the rounding convention in this 1979 guideline. See, 68 FR 19111, April 17, 2003; 68 FR 62043, October 31, 2003; and 69 FR 21719, April 22, 2004. Then, EPA determines attainment status under the one-hour ozone NAAQS on the basis of the annual average number of expected exceedances of the NAAQS over a three-year period. (See, 60 FR 3349, January 17, 1995 and “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” at 57 FR 13506, April 16, 1992 (“General Preamble”).) EPA's determination is based upon data that have been collected and quality-assured in accordance with 40 CFR part 58, and recorded in EPA's Air Quality System (AQS) database. To account for missing data, the procedures found in appendix H to 40 CFR part 50 are used to adjust the actual number of monitored exceedances of the standard to yield the annual number of expected exceedances (“expected exceedance days”) at an air quality monitoring site. We determine if an area meets the one-hour ozone NAAQS by calculating, at each monitor, the average expected number of days over the standard per year (i.e., “average number of expected exceedance days”) during the applicable 3-year period. See, the General Preamble, 57 FR 13498, April 16, 1992. The term “exceedance” is used throughout this document to describe a daily maximum ozone measurement that is equal to or exceeds 0.125 ppm which is the level of the standard after rounding. An area violates the ozone standard if, over a consecutive 3-year period, more than 3 days of expected exceedances occur at the same monitor. For more information please refer to 40 CFR 50.9 “National one-hour primary and secondary ambient air quality standards for ozone” and “Interpretation of the one-hour Primary and Secondary National Ambient Air Quality Standards for Ozone” (40 CFR part 50, appendix H).
Table 2 shows a summary of one-hour ozone data for all the ozone monitors in the Portsmouth, NH serious one-hour ozone nonattainment area for the period 1997-2011. In short, if the three-year average expected exceedance rate, shown in the far right column, is less than or equal to 1.0, the site meets the one-hour ozone NAAQS. If all sites in the area are shown to meet the one-hour ozone NAAQS, it can be determined that the area has attained the one-hour ozone NAAQS.
As shown in Table 2, the Portsmouth, NH serious one-hour ozone nonattainment area attained the one-hour ozone NAAQS at the end of the 1999 ozone season, since the three ozone monitors (Rye-Harbor State Park, Portsmouth-Vaughan Street, and Rochester-Rochester Hill Road) had expected exceedance rates below 1.0. Thus EPA is proposing to determine that, based on the 1997-1999 complete, quality-assured and certified ozone data in the Air Quality System (AQS) database, the Portsmouth, NH serious one-hour ozone nonattainment area met the one-hour ozone NAAQS, by the attainment deadline of November 15, 1999. EPA is also proposing to determine that the area has remained in attainment of the one-hour NAAQS ever since.
Table 3 shows the results of one-hour ozone data for all the ozone monitors in the Manchester, NH marginal one-hour ozone nonattainment area for the period 1991-2011. In short, if the three-year average expected exceedance rate, shown in the far right column, is less than or equal to 1.0, the site meets the one-hour ozone NAAQS. If all sites in the area are shown to meet the one-hour ozone NAAQS, it can be determined that the area has attained the one-hour ozone NAAQS.
As shown in Table 3, the Manchester, NH marginal one-hour ozone nonattainment area attained the one-hour ozone NAAQS at the end of the 1993 ozone season, since the one monitor (Manchester-Hartnett Park) with three years of data had an expected exceedance rate below 1.0. The other site (Concord-Storrs Street) began in 1992 and had no exceedance in either 1992 or 1993. Thus, EPA is proposing to determine that, based on the 1991-1993 complete, quality-assured and certified ozone data in the AQS database, the Manchester, NH marginal one-hour ozone nonattainment area met the one-hour ozone NAAQS, by its attainment deadline of November 15, 1993. Based on data from 1993-2011, EPA proposes to determine that the area has continued in attainment of the one-hour NAAQS ever since.
If EPA finalizes its proposed determination that the Portsmouth and Manchester, NH areas attained the one-hour ozone standard by their respective deadlines, there are no consequences for failure to attain that standard. For the Portsmouth, NH area, it would discharge any obligation with respect to contingency measures triggered by a failure to attain by the one-hour ozone attainment deadline. In addition, if EPA finalizes its determination that the Portsmouth, NH one-hour ozone area continues to attain the standard, under EPA's “Clean Data Policy” interpretation, which was first articulated for the one-hour standard and then codified for the eight-hour ozone standard (40 CFR 51.918), that determination suspends the Portsmouth, NH area's obligation to submit attainment-related requirements for the one-hour ozone standard, including contingency measures. See, for example, determination of one-hour ozone attainment for Baton Rouge, (75 FR 6570, February 10, 2010).
For the reasons set forth in this notice, EPA is proposing four separate and independent determinations. First, EPA is proposing to determine that the Portsmouth, NH serious one-hour ozone nonattainment area met the applicable deadline of November 15, 1999, for attaining the one-hour NAAQS for ozone, based on 1997-1999 complete, certified and quality-assured ozone monitoring data. If EPA finalizes this determination, it would discharge any obligation with respect to contingency measures triggered by a failure to attain by the one-hour ozone attainment deadline. Second, EPA is proposing to determine that the Portsmouth, NH area is currently attaining the standard based on complete, certified and quality-assured ozone monitoring data since
EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. EPA will consider these comments before final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the
This action proposes to make determinations of attainment based on monitored air quality data, and/or does not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:
• Are not “significant regulatory actions” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are 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
• Do 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);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are 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
• Do 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, these actions do 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, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to implement management measures described in Amendment 35 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). If implemented, this rule would establish sector annual catch limits (ACLs) and sector annual catch targets (ACTs) for greater amberjack; revise the sector accountability measures (AMs) for greater amberjack; and establish a commercial trip limit for greater amberjack. Additionally, Amendment 35 would modify the greater amberjack rebuilding plan. The intent of Amendment 35 is to end overfishing of greater amberjack, modify the greater amberjack rebuilding plan and help achieve optimum yield (OY) for the greater amberjack resource in accordance with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Written comments must be received on or before August 20, 2012.
You may submit comments on the proposed rule identified by “NOAA-NMFS-2012-0107” by any of the following methods:
•
•
To submit comments through the Federal e-Rulemaking Portal:
Comments received through means not specified in this rule will not be considered.
For further assistance with submitting a comment, see the “Commenting” section at
Electronic copies of Amendment 35, which includes a draft environmental assessment, an initial regulatory flexibility analysis (IRFA), and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at
Rich Malinowski, Southeast Regional Office, telephone 727-824-5305, email
The reef fish fishery of the Gulf is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act. All greater amberjack weights discussed in this proposed rule are in round weight.
Since 1990, the Council and NMFS have implemented a series of management measures to prevent overfishing of the greater amberjack stock and achieve OY. Amendment 1 to the FMP added greater amberjack to the list of species in the FMP, set a recreational minimum size limit of 28 inches (71 cm), established a three-fish recreational bag limit, and set a commercial minimum size limit of 36 inches (91 cm) (55 FR 2079, January 22, 1990). Amendment 12 to the FMP reduced the greater amberjack recreational bag limit to one fish per person per day (61 FR 65983, December 16, 1996).
Greater amberjack were first determined to be overfished and undergoing overfishing in 2000. Secretarial Amendment 2 established a rebuilding plan for greater amberjack, starting in 2003, based on a stock assessment conducted in 2000 (68 FR 39898, July 3, 2003). A 2006 SEDAR benchmark stock assessment (SEDAR 9 2006c) determined that the greater amberjack stock was still overfished and undergoing overfishing. Amendment 30A to the FMP set the greater amberjack stock total allowable catch at 1,871,000 lb (848,671 kg), for the 2008 through 2010 fishing years. Using an allocation of 73 percent for the recreational sector and 27 percent for the commercial sector, Amendment 30A to the FMP established a recreational quota of 1,368,000 lb (620,514 kg), and a commercial quota of 503,000 lb (228,157 kg) (73 FR 38139, July 3, 2008). Amendment 30A also established greater amberjack AMs. These AMs state that if a sector's landings reaches, or is projected to reach, the applicable quota, the sector will close for the remainder of the fishing year. Additionally, in the event of a quota overage, the respective sector's quota will be reduced in the following fishing year by the amount of the respective sector's quota overage in the prior fishing year.
In 2010, the Southeast Data, Assessment, and Review (SEDAR) stock assessment update (SEDAR 9 Update) was conducted for greater amberjack. The SEDAR 9 Update (2010) indicated that the greater amberjack stock was both overfished and undergoing overfishing.
In March 2011, the Council's Science and Statistical Committee (SSC) reviewed the update assessment, determined the assessment to be the best scientific information available, and accepted its conclusions that the stock was undergoing overfishing and is overfished. However, the SSC rejected as unreliable the absolute values that resulted in the conclusions and rejected the assessment's yield projections. The SSC believed that the yield projections were unreliable because they showed large sensitivity to small changes in initial conditions, fishing mortality rates, and catch. Therefore, the SSC did not use the stock assessment to set the overfishing limit (OFL) or the acceptable biological catch (ABC) but instead used Tier 3b of the ABC control rule that the Council was developing in the Generic Annual Catch Limit/Accountability Measure Amendment (Generic ACL Amendment). NMFS approved the Generic ACL Amendment and published a final rule implementing the management measures in that amendment in December 2011 (76 FR 82044, December 29, 2011).
Both Tier 1 and Tier 2 of the ABC control rule require stable yield projections, which were not available for greater amberjack. Tier 3 of the control rule applies when no assessment is available but landings data exist. Tier 3a applies when the stock is unlikely to undergo overfishing if future landings are equal to or moderately higher than the mean of recent landings. Tier 3b applies when expert evaluation of the best scientific information available indicates that recent landings may be unsustainable. Tier 3b uses the average of recent annual catches to set the OFL and the ABC is set as a percentage of the OFL. The ABC control rule states that the default is to set the ABC equal to 75 percent of the OFL. The SSC decided that, given the likelihood of ongoing overfishing, Tier 3b was appropriate for greater amberjack. Therefore, instead of relying on assessment projections, the SSC set the OFL for greater amberjack equal to the weight of the mean landings for the most recent ten years (2000-2009) and recommended the ABC for three years (2011-2013) be set at 75 percent of that 10-year mean.
The Council accepted the SSC's recommendations, set the ACL equal to the ABC, and consistent with the Generic ACL Amendment, set the ACT approximately 15 percent below the ACL. Although the ACL adopted by the Council was based on landings recorded during a time period when overfishing is believed to have been occurring, in the Generic ACL Amendment the Council determined that the Tier 3b methodology would end overfishing where applicable. NMFS approved this approach when approving the Generic ACL Amendment, and finds that following this approach in Amendment 35 is consistent with the FMP as amended.
Further, greater amberjack landings are somewhat variable over the 10-year period of 2000 through 2009, and there is no discernible trend in these landings. The lack of a discernible trend in landings data supports the conclusion that the stock size is more likely than not stable enough that the ABC recommendation (i.e., 75 percent of the OFL) and management measures implemented by the Council (setting the ACT approximately 15 percent below the ACL) will provide the reduction in greater amberjack fishing mortality necessary to end overfishing and rebuild the greater amberjack stock. A new benchmark assessment for greater amberjack is scheduled to occur in 2013. When the new assessment is completed, NMFS and the Council will be able to confirm that greater amberjack has met its rebuilding schedule.
This proposed rule would establish greater amberjack sector ACLs and sector ACTs (which are expressed as quotas in the regulatory text), revise the sector AMs, and establish a commercial trip limit for greater amberjack.
This rule would define specific ACLs for the greater amberjack commercial and recreational sectors. This proposed rule would also establish the ACTs (expressed as quotas in the regulatory text) for both sectors.
The National Standard 1 Guidelines (74 FR 3178, June 16, 2009) require the establishment of a mechanism for specifying ACLs in the FMP at a level such that overfishing does not occur in the fishery. Within Amendment 30A to the FMP, the Council and NMFS established greater amberjack commercial and recreational quotas that functioned as ACLs. An ACT is a management target established to account for management uncertainty in controlling the actual catch at or below the ACL. An ACT is used in the system of AMs so that the ACL is not exceeded. Therefore, a sector ACT should be set below the sector ACL to allow the sector to be closed when the ACT is projected to be reached. Amendment 35 would establish the greater amberjack ACL equal to the greater amberjack stock ABC at 1,780,000 lb (807,394 kg), and set the greater amberjack stock ACT at 1,539,000 lb (698,079 kg) based on the ACT Control Rule developed in the Generic ACL Amendment (76 FR 82044, December 29, 2011).
Sector allocations were established in Amendment 30A to the FMP and were not changed in Amendment 35. For greater amberjack, 27 percent of the ACL is allocated to the commercial sector and 73 percent of the ACL is allocated to the recreational sector.
This proposed rule would establish the greater amberjack commercial ACL at 481,000 lb (218,178 kg). The commercial ACT, which is equivalent to the greater amberjack commercial quota, would be reduced from 503,000 lb (228,157 kg), to 409,000 lb (185,519 kg). The commercial ACT would be set 15 percent below the ACL to account for management uncertainty.
This proposed rule would establish the greater amberjack recreational ACL at 1,299,000 lb (589,116 kg). The recreational ACT, which is equivalent to the greater amberjack recreational quota, would be reduced from 1,368,000 lb (620,514 kg), to 1,130,000 lb (512,559 kg). The recreational ACT would be set 13 percent below the ACL to account for management uncertainty.
This proposed rule would revise the AMs for both the greater amberjack commercial and recreational sectors. AMs are management controls that are implemented to prevent ACLs from being exceeded, and to correct or mitigate overages of the ACL if they occur. There are two categories of AMs, in-season AMs (when the ACL is met or projected to be met) and post-season AMs (when the ACL is exceeded).
The current in-season AM for the greater amberjack commercial sector closes the sector when commercial landings reach or are projected to reach the applicable quota. In addition, if despite such closure the commercial landings exceed the quota, the following year's quota is reduced by the amount of the quota overage in the prior fishing year (post-season AM). This rule would implement an ACT that is less than the ACL, creating a buffer between the two. The ACT would be the quota and this rule would require that the commercial sector close when the ACT is reached or projected to be reached. By closing the commercial sector when the ACT is reached or projected to be reached, there is less probability of exceeding the ACL. In addition to this revision of the in-season AM, this rule would revise the post-season AM as follows: If commercial landings exceed the commercial ACL, then during the following fishing year, both the commercial ACT (commercial quota) and the commercial ACL will be reduced by the amount of the prior years' commercial ACL overage.
The current in-season AM for the greater amberjack recreational sector closes the sector when recreational landings reach or are projected to reach the applicable quota. In addition, if despite such closure the recreational landings exceed the quota, the following year's recreational quota is reduced by the amount of the quota overage in the prior fishing year, and the recreational fishing season is reduced by the amount necessary to recover the overage from the prior fishing year (post-season AMs). This rule would implement an ACT that is less than the ACL, creating a buffer between the two. The ACT would act as the quota and this rule would require that the recreational sector close when the ACT is reached or projected to be reached. By closing the recreational sector when the ACT is reached or projected to be reached, there is less probability of exceeding the ACL. In addition to this revision of the in-season AM, this rule would revise the post-season AMs as follows: If recreational landings exceed the recreational ACL, then during the following fishing year, both the recreational ACT (recreational quota) and the recreational ACL will be reduced by the amount of the prior year's recreational ACL overage.
Currently, there is no trip limit for the commercial sector. This rule would establish a commercial trip limit for greater amberjack of 2,000 lb (907 kg). This trip limit would be applicable until the commercial ACT (commercial quota) is reached or projected to be reached during a fishing year and the commercial sector is closed.
Amendment 35 would revise the rebuilding plan for greater amberjack. The greater amberjack stock is currently in its last year of a 10-year rebuilding plan that began in 2003 and ends in 2012. Amendment 35 would modify the rebuilding plan in response to the results from the SEDAR 9 Update and subsequent SSC review and recommendations for the greater amberjack ABC.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the AA has determined that this proposed rule is consistent with Amendment 35, the Magnuson-Stevens Act and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603, for this rule. The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the proposed rule, why it is being considered, and the objectives of, and legal basis for the rule are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see
This proposed rule would establish greater amberjack sector ACLs and sector ACTs, revise the sector AMs, and establish a commercial trip limit for greater amberjack.
The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. This proposed rule would not introduce any changes to current reporting, record-keeping, and other compliance requirements.
NMFS expects the proposed rule to directly affect commercial fishers and for-hire operators. The Small Business Administration established size criteria
From 2005-2010, an average of 1,096 vessels had Federal commercial Gulf reef fish permits. Based on home port states reported in their permit applications, these vessels were distributed as follows: 897 vessels in Florida, 34 vessels in Alabama, 19 vessels in Mississippi, 58 vessels in Louisiana, 79 vessels in Texas, and 9 vessels in other states. Of the total number of federally permitted vessels, 750 vessels reported landings of at least 1 lb (0.6 kg) of reef fish. These vessels generated total dockside revenues of approximately $41.5 million dollars (2010 dollars), or an average of $55,000 per vessel. An average of 325 vessels reported landings of at least 1 lb (0.6 kg) of greater amberjack, with these vessels distributed as follows: 259 vessels in Florida, 15 vessels in Alabama/Mississippi, 32 in Louisiana, 32 in Texas, and 2 in other states. Dockside revenues from greater amberjack were approximately $600,000 (2010 dollars). Based on this information, all commercial fishing vessels expected to be directly affected by this proposed rule are determined for the purpose of this analysis to be small business entities.
The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. From 2005-2010, an average of 1,493 vessels had Federal Gulf reef fish charter/headboat permits, and based on homeport states reported in their permit applications these vessels were distributed as follows: 921 vessels in Florida, 147 vessels in Alabama, 61 vessels in Mississippi, 104 vessels in Louisiana, 238 vessels in Texas, and 22 in other states. There is no information available as to how many for-hire vessels harvested or targeted greater amberjack. The Federal Gulf charter/headboat permit does not distinguish between headboats and charterboats, but in 2010, the headboat survey program included 79 headboats. The majority of headboats were located in Florida (43), followed by Texas (19), Alabama (8), and Louisiana (4). The average charterboat is estimated to earn approximately $89,000 (2010 dollars) in annual revenues, while the average headboat is estimated to earn approximately $466,000 (2010 dollars). Based on these average annual revenue figures, all for-hire vessels expected to be directly affected by this proposed rule are determined for the purpose of this analysis to be small business entities.
Some fleet activity, i.e., multiple vessels owned by a single entity, may exist in both the commercial sector and the for-hire component of the recreational sector by an unknown extent, and NMFS treats all vessels as independent entities in this analysis.
NMFS expects the proposed rule to directly affect all federally permitted commercial vessels harvesting greater amberjack and for-hire vessels that operate in the Gulf reef fish fishery. All directly affected entities have been determined, for the purpose of this analysis, to be small entities. Therefore, NMFS determined that this proposed rule would affect a substantial number of small entities.
NMFS considers all entities expected to be affected by the proposed rule as small entities, so the issue of disproportional effects on small versus large entities does not arise in the present case.
Modifying the greater amberjack rebuilding plan by establishing sector ACLs and ACTs would result in a total annual revenue reduction of $99,000 (part of which would be profits) for the entire reef fish commercial sector's vessel operations because the proposed commercial ACT is less than average commercial landings. This revenue reduction takes into account the proposed AM revision that would close the commercial sector if the ACT is reached or projected to be reached. However, it does not account for the effects of the post-season AM that would reduce the applicable sector's ACT and ACL if the ACL were exceeded in the previous year. This post-season AM would be expected to reduce vessel revenues and profits by an unknown amount. The for-hire component of the recreational sector would largely remain unaffected by the proposed ACL/ACT and AM revisions, at least in the short term. The for-hire component of the recreational sector is not expected to reach its proposed ACL/ACT, implying that there would be no trip cancellations that would lead to for-hire profit reductions.
The proposed trip limit on commercial vessels that harvest greater amberjack would result in a revenue reduction (part of which would be profits) of $96,000 for the entire commercial harvesting operation. Because this estimated revenue reduction presupposed the adoption of the proposed ACL/ACT, it should not be considered in addition to the reduction from the proposed ACL/ACT. The smaller reduction appears to show that because the trip limit may allow for an extension of the commercial season it would slightly mitigate the adverse effects of a lower ACL/ACT.
The negative effects of the proposed action on the profits of commercial vessels are minimal when compared to the overall industry profits from harvesting reef fish. It is possible that some vessels may rely on greater amberjack for a sizeable portion of their overall harvesting operations so their profit reductions may be relatively large, but how many vessels there are in the fishery cannot be ascertained.
Four alternatives, including the preferred alternative, and two sub-options, of which one is the preferred option, were considered for modifying the greater amberjack rebuilding plan. The first alternative, the no action alternative, would retain the greater amberjack stock ACL. This is not a viable alternative because the current stock ACL is higher than the ABC being set for greater amberjack.
Like the preferred alternative, the second alternative would set a stock ACL equal to the ABC, which is about 5 percent lower than the current stock ACL. However, this alternative would not set an ACT below the level of the ACL. Among the alternatives, this would provide the best scenario for short-term profitability of small entities. Without an ACT, however, this ACL level may be exceeded, particularly since the stock ACL has been exceeded in the last 2 years (2009 and 2010). Exceeding this ACL would lower the probability of protecting and rebuilding the overfished stock. The sub-option which was not selected would set the stock ACL at 18 percent below the current ACL. This would have the same impacts on profits as the preferred option for the current year, but it would potentially result in a worse profit condition in the subsequent year because it would require post-season overage adjustments if the quotas were exceeded. The third alternative, which would establish a stock ACL of zero, would result in the largest profit reductions to both the commercial sector and for-hire component of the recreational sector.
Two alternatives, including the preferred alternative, were considered for revising the commercial AM. The
Two alternatives, including the preferred alternative, were considered for revising the recreational AM. The only alternative to the preferred alternative is the no action alternative. The no action alternative would result in greater short-term profits than the preferred alternative. Its downside is that it would subject the sector to a greater likelihood of facing a post-season AM that would reduce the succeeding year's ACL and ACT and therefore for-hire vessel profits as well.
Three alternatives, including the preferred alternative, were considered for commercial management measures. The first alternative is the no action alternative and would have no effects on vessel profits. The second alternative, which would establish a vessel trip limit, while maintaining the March 1-May 31 seasonal closure, includes four options. The preferred option would establish a commercial trip limit of 2,000 lb (907 kg), which as noted above would result in a revenue reduction of $96,000. The other options would establish a trip limit of 1,500 lb (680 kg), 1,000 lb (454 kg), or 500 lb (227 kg). Given the preferred ACL/ACT alternative, these other options would result in revenue reductions of $95,000, $97,000, and $198,000, respectively. These other trip limit options would result in a longer fishing season than the preferred option. The commercial trip limit of 1,500 lb (680 kg) would result in a lower revenue reduction than the preferred option because revenue gains from a longer fishing season would outweigh revenue losses from a lower trip limit. For the other two trip limit options however, the trip limits are so low that revenue gains from a longer fishing season would not outweigh revenue losses from a lower trip limit. Profit reductions would also likely occur with these other options.
The third alternative, which would eliminate the March 1—May 31 seasonal closure, includes 4 trip limit options. The trip limit options are 2,000 lb (907 kg), 1,500 lb (680 kg), 1,000 lb (454 kg), or 500 lb (227 kg). Given the preferred ACL/ACT alternative, these options would result in revenue reductions of $123,000, $120,000, $115,000, and $110,000 respectively. These revenue reductions for trip limits not linked with a seasonal closure are greater when compared to trip limits linked with a seasonal closure because they would result in a longer quota closure during the fishing year. Profit reductions would also likely occur with these options.
In Amendment 35, the Council considered several actions for which the no-action alternative was the preferred alternative.
Four alternatives were considered for modifying the recreational minimum size limit for greater amberjack. The first alternative is the no action alternative, which will not affect the profits of for-hire vessels. The other alternatives would raise the recreational minimum size limit to 32 in (81 cm), 34 in (86 cm), or 36 in (91 cm), fork length. These other alternatives would possibly result in for-hire vessel profit reductions to the extent that some trips would be cancelled.
Five alternatives were considered for modifying the recreational closed season for greater amberjack. The preferred alternative is the no action alternative, and so would not affect the profits of for-hire vessels. The second alternative would remove the fixed closed season so that the recreational sector would open on January 1 and would remain open until the recreational ACT (recreational quota) is reached. This alternative would result in a short-term profit increase of $75,000 to charterboats and an unknown profit increase to headboats under the preferred ACL/ACT alternative. These profit increases hinge on the assumption that displaced effort due to the quota closure would not shift to the open season. Any effort shift would likely negate such profit increases.
The third alternative would modify the recreational sector's seasonal closure to March 1-May 31. This alternative would result in a profit loss of approximately $300,000 to charterboats and an unknown profit loss to headboats. Profit losses would be less if displaced effort from the closed months shifted to the open months. The fourth alternative would modify the recreational seasonal closure to January 1-May 31. This alternative would result in a profit loss of approximately $400,000 to charterboats and an unknown profit loss to headboats. Profit losses would be less if displaced effort from the closed months shifted to the open months. The fifth alternative would modify the recreational seasonal closure to June 1-July 23. In the absence of effort shifting, this alternative would result in a short-term profit increase of approximately $80,000 to charterboats and an unknown profit increase to headboats. Any effort shift would tend to negate these profit increases.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
1. The authority citation for part 622 continues to read as follows:
16 U.S.C. 1801
2. In § 622.42, paragraphs (a)(1)(v) and (a)(2)(ii) are revised to read as follows:
(a) * * * (1) * * *
(v) Greater amberjack—409,000 lb (185,519 kg), round weight.
(2) * * *
(ii)
3. In § 622.44, paragraph (d) is added to read as follows:
(d)
4. In § 622.49, paragraph (a)(1) is revised to read as follows:
(a) * * * (1)
(B) In addition to the measures specified in paragraph (a)(1)(i)(A) of this section, if commercial landings, as estimated by the SRD, exceed the commercial ACL, as specified in (a)(1)(i)(C) of this section, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the commercial ACT (commercial quota) and the commercial ACL for that following year by the amount of any commercial ACL overage in the prior fishing year.
(C) The commercial ACL for greater amberjack is 481,000 lb (218,178 kg), round weight.
(ii)
(B) In addition to the measures specified in paragraph (a)(1)(ii)(A) of this section, if recreational landings, as estimated by the SRD, exceed the recreational ACL, as specified in (a)(1)(ii)(C) of this section, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the recreational ACT (recreational quota) and the recreational ACL for that following year by the amount of any recreational ACL overage in the prior fishing year.
(C) The recreational ACL for greater amberjack is 1,299,000 lb (589,216 kg), round weight.
Notice is hereby given that the U.S. Arctic Research Commission will hold its 98th meeting in Fairbanks, Alaska, on August 9-10, 2012. The business sessions, open to the public, will convene at 8:30 a.m. on August 9 and 11:30 on August 10 after a scheduled executive session.
The Agenda items include:
(1) Call to order and approval of the agenda
(2) Approval of the minutes from the 97th meeting
(3) Commissioners and staff reports
(4) Discussion and presentations concerning Arctic research activities
The focus of the meeting will be reports and updates on programs and research projects affecting the Arctic.
If you plan to attend this meeting, please notify us via the contact information below. Any person planning to attend who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission of those needs in advance of the meeting.
Contact person for further information: John Farrell, Executive Director, U.S. Arctic Research Commission, 703-525-0111 or TDD 703-306-0090.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Summary of EDA Construction Standards (commonly referred to as the “bluebook”) and the Standard Terms and Conditions for Construction Projects, as well as any special conditions incorporated into the terms and conditions at the time of award, supplement the requirements that apply to EDA-funded construction projects.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Nicholas A. Fraser, OMB Desk Officer, Fax number (202) 395-7285, or via the Internet at
The Materials Technical Advisory Committee will meet on August 9, 2012, 10:00 a.m., Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials and related technology.
1. Opening remarks and introductions.
2. Remarks from Bureau of Industry and Security senior management.
3. Discussion on the role of the Implementation Support Unit of the Biological Weapons Convention.
4. Report on Composite Working Group and other working groups.
5. Report on regime-based activities.
6. Public comments and new business.
7. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the materials should be forwarded prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on November 16, 2011, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and the U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 § § 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public. For more information, call Yvette Springer at (202) 482-2813.
The Materials Processing Equipment Technical Advisory Committee (MPETAC) will meet on August 7, 2012, 9:00 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials processing equipment and related technology.
1. Opening remarks and introductions.
2. Presentation of papers and comments by the Public.
3. Discussions on results from last, and proposals for next Wassenaar meeting.
4. Report on proposed and recently issued changes to the Export Administration Regulations.
5. Other business.
6. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on November 21, 2011, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d)), that the portion of the meeting dealing with matters the premature disclosure of which would be likely to frustrate significantly implementation of a proposed agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482-2813.
Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before August 8, 2012. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5:00 p.m. at the U.S. Department of Commerce in Room 3720.
Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before August 8, 2012. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5:00 p.m. at the U.S. Department of Commerce in Room 3720.
International Trade Administration, Department of Commerce.
Notice of Federal Advisory Committee Meeting.
This notice sets forth the schedule and proposed agenda of a meeting of the CINTAC.
The meeting is scheduled for Tuesday, August 28, 2012, at 9:00 a.m. Eastern Daylight Time (EDT). The public session is from 3:00 p.m.-4:00 p.m.
The meeting will be held in Room 4830, U.S. Department of Commerce, Herbert Clark Hoover Building, 1401 Constitution Ave. NW., Washington, DC 20230.
Mr. David Kincaid, Office of Energy & Environmental Industries, ITA, Room 4053, 1401 Constitution Ave. NW., Washington, DC 20230. (Phone: 202-482-1706; Fax: 202-482-5665; email:
1. Discussion of matters determined to be exempt from the provisions of the Federal Advisory Committee Act relating to public meetings found in 5 U.S.C. App. (10)(a)(1) and 10(a)(3).
1. International Trade Administration's Civil Nuclear Trade Initiative Update.
2. Civil Nuclear Trade Promotion Activities Discussion.
3. Public comment period.
The open session will be disabled-accessible. Public seating is limited and available on a first-come, first-served basis. Members of the public wishing to attend the meeting must notify Mr. David Kincaid at the contact information below by 5:00 p.m. EDT on
A limited amount of time will be available for pertinent brief oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two (2) minutes per person, with a total public comment period of 30 minutes. Individuals wishing to reserve speaking time during the meeting must contact Mr. Kincaid and submit a brief statement of the general nature of the comments and the name and address of the proposed participant by 5:00 p.m. EDT on Friday, August 24, 2012. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, ITA may conduct a lottery to determine the speakers. Speakers are requested to bring at least 20 copies of their oral comments for distribution to the participants and public at the meeting.
Any member of the public may submit pertinent written comments concerning the CINTAC's affairs at any time before and after the meeting. Comments may be submitted to the Civil Nuclear Trade Advisory Committee, Office of Energy & Environmental Industries, Room 4053, 1401 Constitution Ave. NW., Washington, DC 20230. For consideration during the meeting, and to ensure transmission to the Committee prior to the meeting, comments must be received no later than 5:00 p.m. EDT on Friday, August 24, 2012. Comments received after that date will be distributed to the members but may not be considered at the meeting.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on February 22, 2012, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App. (10)(d)), (1) that the portion of the meeting dealing with matters the disclosure of which would be likely to frustrate significantly implementation of an agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. App. (10)(a)(1) and 10(a)(3); and (2) that the portion of the meeting dealing with matters requiring disclosure of trade secrets and commercial or financial information as described in 5 U.S.C. 552b(c)(4) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. App. (10)(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
Copies of CINTAC meeting minutes will be available within 90 days of the meeting.
Department of Defense (DoD).
Notice of closed meetings.
Pursuant to the provisions of section 10 of Public Law 92-463, the Federal Advisory Committee Act, notice is hereby given that closed meeting of the Department of Defense Wage Committee will be held.
Tuesday, August 7, 2012, at 10 a.m.
4800 Mark Center Drive, Room 05K25, Alexandria, VA 22350-1100.
Additional information concerning the meetings may be obtained by writing to the Chairman, Department of Defense Wage Committee, 4000 Defense Pentagon, Washington, DC 20301-4000.
Under the provisions of section 10(d) of Public Law 92-463, the Department of Defense has determined that the meetings meet the criteria to close meetings to the public because the matters to be considered are related to internal rules and practices of the Department of Defense and the detailed wage data to be considered were obtained from officials of private establishments with a guarantee that the data will be held in confidence.
However, members of the public who may wish to do so are invited to submit material in writing to the chairman concerning matters believed to be deserving of the Committee's attention.
Department of Defense (DoD).
Notice of closed meetings.
Pursuant to the provisions of section 10 of Public Law 92-463, the Federal Advisory Committee Act, notice is hereby given that closed meeting of the Department of Defense Wage Committee will be held.
Tuesday, August 21, 2012, at 10 a.m.
4800 Mark Center Drive, Room 05K25, Alexandria, VA 22350-1100.
Additional information concerning the meetings may be obtained by writing to the Chairman, Department of Defense Wage Committee, 4000 Defense Pentagon, Washington, DC 20301-4000.
Under the provisions of section 10(d) of Public Law 92-463, the Department of Defense has determined that the meetings meet the criteria to close meetings to the public because the matters to be considered are related to internal rules and practices of the Department of Defense and the detailed wage data to be considered were obtained from officials of private establishments with a guarantee that the data will be held in confidence.
However, members of the public who may wish to do so are invited to submit material in writing to the chairman concerning matters believed to be deserving of the Committee's attention.
Notice.
Notice is given of the names of members of the Performance Review Board for the Department of the Air Force.
Pursuant to 5 U.S.C. 4314(c) (1-5), the Department of the Air Force (AF) announces the appointment of members to the AF's Senior Executive Service (SES) Pay Pool and Performance Review Board (PRB). Appointments are made by the authorizing official. Each board member shall review and evaluate performance scores provided by the SES' immediate supervisor. Performance standards must be applied consistently across the AF. The board will make final recommendations to the authorizing official relative to the performance of the executive.
The members of the 2012 Performance Review Board for the U.S. Air Force are:
1. Board President—Gen. Rice, Commander, Air Education and Training Command.
2. Lt. Gen. Hesterman, Military Deputy for Readiness, Office of the Secretary of Defense, Personnel & Readiness.
3. Lt. Gen. Davis, Military Deputy, Office of the Assistant Secretary of the Air Force for Acquisitions.
4. Mr. Corsi, Assistant Deputy Chief of Staff for Manpower, Personnel and Services.
5. Mrs. Westgate, Assistant Deputy Chief of Staff for Strategic Plans and Program.
6. Dr. Butler, Executive Director, Air Force Materiel Command.
7. Ms. Young, Assistant Deputy Chief of Staff for Logistics, Installations & Mission Support.
8. Mr. Exley, Auditor General, Army Audit Agency.
9. Ms. McKay, Director, Defense Finance and Accounting Service.
10. Mr. Williams, Principle Deputy Director for Air Force Studies & Analyses, Assessments & Lessons Learned.
11. Dr. Meink, Director, Signals Intelligence Systems, National Reconnaissance Office.
12. Mr. Murphy, Director, Intelligence Development, Intelligence Systems Support Office.
13. Mr. Cluck, Director for Acquisitions, U.S. Special Operations Command.
Please direct any written comments or requests for information to Ms. Erin Moore, Deputy Director, Senior Executive Management, AF/DPS, 1040 Air Force Pentagon, Washington, DC 20330-1040 (PH: 703-695-7677; or via email at
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
Pursuant to the National Environmental Policy Act of 1969 (NEPA), as amended and the 1958 Water Supply Act, as amended, the U.S. Army Corps of Engineers (USACE), Omaha District, intends to prepare an integrated Municipal and Industrial (M&I) Water Supply Storage Reallocation Report and Environmental Impact Statement (EIS) for the Missouri River. The purpose of the study is to determine if changes to the current allocation of storage for M&I water supply may be warranted, and what the effects of making those changes would be on other authorized project purposes. If found to be feasible, storage could be allocated for purposes specific to M&I water supply storage, allowing for non-federal entities to acquire the rights to storage on a long-term or permanent basis via water supply contracts with the Corps of Engineers.
For additional information on the NEPA process, or to be added to the mailing list, contact Eric Laux, by mail: CENWO-PM-AC, U.S. Army Corps of Engineers, 1616 Capitol Avenue, Omaha, NE 68102, or by telephone: (402) 995-2682. For additional information on the Reallocation Study, contact Gwyn Jarrett, by mail: CENWO-PM-AA, U.S. Army Corps of Engineers, 1616 Capitol Avenue, Omaha, NE 68102, or by telephone: (402) 995-2717.
The 1944 Flood Control Act, as amended, directed the USACE to allocate the river's resources among the authorized Missouri River project purposes; which are: fish and wildlife, flood control, irrigation, navigation, hydropower, recreation, water quality, and water supply. Although water supply is one of the several purposes of the Missouri River main stem projects, no specific allocation of storage has been made for M&I. The Water Supply Act of 1958 provides the Assistant Secretary of the Army for Civil Works (ASA[CW]) the discretion to make a change in the use of storage in an existing reservoir project from its present use to M&I water supply (reallocation) and allows the secretary to enter into agreements for long term or permanent storage at Corps reservoir projects.
While water rights are conveyed by the state, the rights to water supply storage in a Corps reservoir may be acquired by non-federal entities on a long-term or permanent basis via a water supply contract with the Corps of Engineers. The cost of acquiring the right to storage would be based on the ASA (CW)'s determination of appropriate costs to be borne by the non-federal entities, as would be spelled out in the Decision Document that would result from the study.
The Reallocation Study will take a comprehensive, systems approach to evaluate present and future M&I storage needs along the Missouri River from the headwaters of Ft. Peck, MT to St. Louis, MO. In contemplating an allocation of storage to M&I to meet needs in the basin, the Reallocation Report/EIS will discuss and evaluate the following: (1) Identify current and future water demand and potential need for reallocated storage to support demand; (2) evaluate the impacts on the project purposes and existing users and whether or not compensation would be required; (3) determine environmental effects of any proposed action and whether or not mitigation would be required; (4) determine the price to be charged the purchasers of reallocated storage; and (5) determine appropriate compensation, if any, to existing users/beneficiaries. In addition to reallocation
August 20, 2012—Nebraska City, NE: Lied Lodge and Conference Center, 2700 Sylvan Road.
August 21, 2012—St. Joseph, MO: Stoney Creek Inn and Conference Center, 1201 North Woodbine Road.
August 22, 2012—St. Louis, MO: Marriott West, 660 Maryville Centre Drive.
August 23, 2012—Sioux City, IA: Holiday Inn, 701 Gordon Drive.
August 27, 2012—Pierre, SD: Best Western Ramkota, 920 W. Sioux Avenue.
August 28, 2012—Bismarck, ND: Best Western Doublewood Inn and Conference Center, 1400 E Interchange Avenue.
August 29, 2012—Glasgow, MT: Fort Peck Visitor Center, Highway 24 South 17 miles to Fort Peck.
Department of the Army, U.S. Army Corps of Engineers, Department of Defense.
Notice of intent.
The U.S. Army Corps of Engineers, Portland District (Corps), intends to prepare a Draft Environmental Impact Statement (DEIS) to reduce avian predation on juvenile salmonids through management of double-crested cormorants (
The Corps expects to release the DEIS for public review and comment in the fall of 2013.
Ms. Sondra Ruckwardt, Project Manager, U.S. Army Corps of Engineers, Portland District, P.O. Box 2946, Portland, OR 97208, by phone at 503-808-4691 or by email at:
The Corps will prepare a DEIS to reduce avian predation on juvenile salmonids through management of cormorants in the CRE.
The U.S. Army Corps of Engineers responsibilities for cormorant management are identified under Public Law 106-53, Section 582c “(1) NESTING AVIAN PREDATORS—In conjunction with the Secretary of Commerce and the Secretary of the Interior, and consistent with a management plan to be developed by the United States Fish and Wildlife Service, the Secretary [of the Army] shall carry out methods to reduce nesting populations of avian predators on dredge spoil islands in the Columbia River under the jurisdiction of the Secretary.”
The Corps is currently preparing a draft management plan that will include effective alternatives to reduce salmonid consumption by cormorants at ESI. The management plan is necessary to implement avian predation management actions provided for in the 2008 Federal Columbia River Power System (FCRPS) Biological Opinion (BiOp) (NOAA Fisheries 2008), the Reasonable and Prudent Alternative included in the 2008 BiOp and the 2010 FCRPS Supplemental BiOp (NOAA Fisheries 2010) to facilitate achievement of adult escapement goals identified for ESA-listed salmonids in the Columbia Basin.
The increase in consumption of juvenile salmonids by cormorants is the result of an unprecedented increase of cormorants on ESI where the number of breeding pairs increased by 1,400 percent between 1989 and 2007. Reducing cormorant predation in the CRE, in combination with other initiatives that aim to improve juvenile salmonid survival, is anticipated to increase population growth rates of ESA-listed salmonids in the Columbia River basin.
The Corps will evaluate alternatives for their ability to reduce cormorant predation on ESA-listed Columbia River salmonids in the CRE. The preliminary range of alternatives will include, but are not limited to reducing the ESI colony by 25 percent, by 50 percent and by 75 percent by a variety of methods. Some of these methods may include dissuasion techniques, habitat alterations and lethal removal. Also, per the National Environmental Policy Act regulations the Corps will also analyze a No Action alternative (status quo). Preliminary analyses of the benefits of reducing bird numbers with the preliminary action alternatives indicate increases in population growth rates for three of the thirteen ESA-listed salmonids by 0.5 to 1.5 percent. Any additional alternatives will be developed through public involvement and best available scientific information.
b. Significant issues to be analyzed in the DEIS include, but are not limited to: avian predation of juvenile salmonids, management of the largest double-crested cormorant colony in the Western Region, potential impacts to fisheries outside the CRE, potential impacts to commercial and recreational fisheries and potential impacts to tribal fisheries.
c. The Corps will serve as the lead Federal agency in preparation of the DEIS. A decision will be made during the scoping process whether other
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
The U.S. Army Corps of Engineers, San Francisco District (Corps) received a Department of the Army permit application to construct a solar photovoltaic energy plant in San Benito County, CA. The original permit application was received in April 2010 and an updated application was received in August 2010. The application was submitted by Solargen Energy, Incorporated and has since been assumed by Panoche Valley Solar LLC (Applicant). The Corps, as the lead agency responsible for compliance with the National Environmental Policy Act (NEPA), determined that the proposed project may result in significant impacts on the environment, and that the preparation of an Environmental Impact Statement (EIS) is required. The U.S. Fish and Wildlife Service is a cooperating agency for this action. The Corps may invite other Federal, State, local agencies, and tribes to be cooperating agencies.
Comments may be submitted electronically or by U.S. Mail. Written comments should be addressed to: Ms. Katerina Galacatos, U.S. Army Corps of Engineers, San Francisco District, Attn: Regulatory Division; 1455 Market Street, 16th Floor, San Francisco, CA 94103-1398. Comments may also be submitted electronically via email to:
To obtain additional information about this EIS, the public scoping process, or to receive a copy of the draft EIS when it is issued, please contact Ms. Katerina Galacatos by telephone: 415-503-6778; or electronic mail:
The applicant has submitted an application for a Department of Army permit pursuant to Section 404 of the Clean Water Act to construct and operate a 399-Megawatt
The proposed project would be constructed in five phases and would include a substation, on-site access roads, and buried electrical collection conduit. The construction of three of the road crossings would result in 427 cubic yards of fill into Panoche Creek and Las Aguilas Creek, jurisdictional waters of the U.S. Electricity generated from the project would be transmitted on-site to the state's electrical grid through two existing Pacific Gas and Electric Company (PG&E) transmission lines.
Approximately 2,203 acres would be permanently disturbed by on-site facilities, and an additional 100 acres would be temporarily disturbed during construction. The proposed project would include development of the following components: Installation of approximately 3 million to 4 million photovoltaic panels; photovoltaic module steel support structures; electrical inverters and transformers; an electrical substation with switchyard; buried electrical collection conduit; an operations and maintenance (O&M) building; a septic system and leach field; a wastewater treatment facility and demineralization pond; on-site access roads; security fencing; and transmission support towers and line(s) to interconnect with the PG&E transmission lines that pass through the project site.
The EIS will include an evaluation of a reasonable range of alternatives. Currently, the following alternatives are expected to be analyzed in detail: The no action alternative (no permit issued), and the Applicant's proposed project (proposed action). In addition to the proposed action, the Corps may consider additional alternatives for potential detailed analysis.
Potentially significant issues to be analyzed in the EIS include, but are not limited to, impacts on biological resources (including threatened and endangered species), water resources (including wetlands), cultural resources, traffic and transportation, and air quality.
Other environmental review and consultation requirements for the proposed action include water quality certification pursuant to Section 401 of the Clean Water Act from the California Regional Water Quality Control Board; Section 7 consultation pursuant to the Endangered Species Act; and Section 106 consultation pursuant to the National Historic Preservation Act.
The Corps will hold two public scoping meetings for the EIS. Notice of these meetings will be provided in local news media and on the project Web site (
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, the U.S. Army Corps of Engineers has prepared a Draft Feasibility Report/Environmental Impact Statement (FR/EIS) for the Chatfield Reservoir Storage Reallocation Study, Littleton, Colorado and by this notice is announcing the extension of the comment period.
The comment period has been extended for an additional 30 days and will end on September 6, 2012.
Written comments should be sent to: Department of the Army; Corps of Engineers, Omaha District; CENWO-PM-AA; ATTN: Chatfield Reservoir Storage Reallocation FR/EIS; 1616 Capitol Avenue; Omaha, NE 68102-4901. Comments can also be emailed to:
For further information and/or questions about the Chatfield Reservoir Storage Reallocation FR/EIS, please contact Ms. Gwyn Jarrett, Project Manager, by telephone: (402) 995-2717, by mail: 1616 Capitol Avenue, Omaha, NE 68102-4901, or by email:
For more information about the Chatfield Reservoir Storage Reallocation FR/EIS, please visit
GEAR UP is a discretionary grant program which encourages applicants to provide support and maintain a commitment to eligible low-income students, including students with disabilities, to assist the students in obtaining a secondary school diploma and preparing for and succeeding in postsecondary education. This GEAR UP project is designed to determine the effectiveness of pairing federally supported college savings accounts with GEAR UP activities as part of an overall college access and success strategy.
Interested persons are invited to submit comments on or before August 20, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
This collection is being submitted under the Streamlined Clearance Process for Discretionary GrantInformation Collections (1894-0001). Therefore, the 30-day public comment period notice will be the onlypublic comment notice published for this information collection.
Advisory Committee on Student Financial Assistance, Education
Notice of open teleconference meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming open teleconference meeting of the Advisory Committee on Student Financial Assistance. This notice also describes the functions of the Advisory Committee. Notice of this meeting is required under Section 10(a)(2) of the Federal Advisory Committee Act. This document is intended to notify the general public of their opportunity to attend.
Office of the Advisory Committee on Student Financial Assistance, Capitol Place, 80 F Street NW., Room 412, Washington, DC 20202-7582.
Dr. William J. Goggin, Executive Director, Advisory Committee on Student Financial Assistance, Capitol Place, 80 F Street NW., Suite 413, Washington, DC 20202-7582, (202) 219-2099.
The Advisory Committee on Student Financial Assistance is established under Section 491 of the Higher Education Act of 1965 as amended by Public Law 100-50 (20 U.S.C. 1098). The Advisory Committee serves as an independent source of advice and counsel to the Congress and the Secretary of Education on student financial aid policy. Since its inception, the congressional mandate requires the Advisory Committee to conduct objective, nonpartisan, and independent analyses on important aspects of the student assistance programs under Title IV of the Higher Education Act. In addition, Congress expanded the Advisory Committee's mission in the Higher Education Opportunity Act of 2008 to include several important areas: access, Title IV modernization, early information and needs assessment and review and analysis of regulations. Specifically, the Advisory Committee is to review, monitor and evaluate the Department of Education's progress in these areas and report recommended improvements to Congress and the Secretary.
The Advisory Committee has scheduled this teleconference for the sole purpose of electing officers to serve a one-year term beginning October 1, 2012.
Space for the teleconference meeting is limited and you are encouraged to register early if you plan to attend. You may register by sending an email to the following email address:
Individuals who will need accommodations for a disability in order to attend the teleconference meeting (i.e., interpreting services, assistive listening devices, and/or materials in alternative format) should notify the Advisory Committee no later than Wednesday, August 1, 2012 by contacting Ms. Tracy Jones at (202) 219-2099 or via email at
Individuals who use a telecommunications device for the deaf (TTY) may call the Federal Information Relay Service (FRS) toll free at 1-800-877-8339.
Records are kept for Advisory Committee proceedings, and are available for inspection at the Office of the Advisory Committee on Student Financial Assistance, Capitol Place, 80 F Street NW., Suite 413, Washington, DC from the hours of 9:00 a.m. to 5:30 p.m. Eastern Standard Time, Monday through Friday, except Federal holidays. Information regarding the Advisory Committee is available on the Committee's Web site,
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission's staff may attend the following meetings and/or teleconferences related to the transmission planning activities of the Southwest Power Pool, Inc. (SPP):
The above-referenced meeting will be held at: Marriot Country Club Plaza, 4445 Main Street, Kansas City, MO 64111.
The above-referenced meeting and teleconference are open to stakeholders.
Further information may be found at
The discussions at the meetings and teleconferences described above may address matters at issue in the following proceedings:
For more information, contact Luciano Lima, Office of Energy Markets Regulation, Federal Energy Regulatory Commission at (202) 502-6210 or
Environmental Protection Agency; Office of External Affairs and Environmental Education.
Notice.
The National Environmental Education Foundation (NEEF) was created by Section 10 of Public Law 101-619, the National Environmental Education Act of 1990. It is a private 501(c)(3) non-profit organization established to promote and support education and training as necessary tools to further environmental protection and sustainable, environmentally sound development. It provides the common ground upon which leaders from business and industry, all levels of government, public interest groups, and others can work cooperatively to expand the reach of environmental education and training programs beyond the traditional classroom. The Foundation supports a grant program that promotes innovative environmental education and training programs; it also develops partnerships with government and other organizations to administer projects that promote the development of an environmentally literate public. The Administrator of the U.S. Environmental Protection Agency, as required by the terms of the Act, announces the following appointment to the National Environmental Education Foundation Board of Trustees. The appointee is Wonya Lucas, Chief Executive Officer and President of TV One, LLC.
For information regarding this Notice of Appointment, please contact Mrs. Stephanie Owens, Deputy Associate Administrator, Office of External Affairs and Environmental Education (1701A) U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460. General information concerning NEEF can be found on their Web site at:
This appointee will join the current Board members which include:
The Foundation is a charitable and nonprofit corporation whose income is exempt from tax, and donations to which are tax deductible to the same extent as those organizations listed pursuant to section 501(c) of the Internal Revenue Code of 1986. The Foundation is not an agency or establishment of the United States. The purposes of the Foundation are—
(A) Subject to the limitation contained in the final sentence of subsection (d) herein, to encourage, accept, leverage, and administer private gifts for the benefit of, or in connection with, the environmental education and training activities and services of the United States Environmental Protection Agency;
(B) To conduct such other environmental education activities as will further the development of an environmentally conscious and responsible public, a well-trained and environmentally literate workforce, and an environmentally advanced educational system;
(C) To participate with foreign entities and individuals in the conduct and coordination of activities that will further opportunities for environmental education and training to address environmental issues and problems involving the United States and Canada or Mexico.
The Foundation develops, supports, and/or operates programs and projects to educate and train educational and environmental professionals, and to assist them in the development and delivery of environmental education and training programs and studies.
The Foundation has a governing Board of Directors (hereafter referred to in this section as `the Board'), which consists of 13 directors, each of whom shall be knowledgeable or experienced in the environment, education and/or training. The Board oversees the activities of the Foundation and assures that the activities of the Foundation are consistent with the environmental and education goals and policies of the Environmental Protection Agency and with the intents and purposes of the Act. The membership of the Board, to the extent practicable, represents diverse points of view relating to environmental education and training. Members of the Board are appointed by the Administrator of the Environmental Protection Agency.
Within 90 days of the date of the enactment of the National Environmental Education Act, and as appropriate thereafter, the Administrator will publish in the
Ms. Wonya Y. Lucas has been Chief Executive Officer and President of TV One, LLC since August 08, 2011. Ms. Lucas was most recently Executive Vice President of Discovery Channel, Chief Operating Officer of Discovery Channel, Executive Vice President of Science Channel and Chief Operating Officer of Science Channel at Discovery Communications Holding, LLC since June 2010. She served as Chief Marketing Officer of Discovery Communications Holding, LLC from March 24, 2008 to June 2010.
Prior to joining Discovery Communications in 2008, Lucas served as General Manager and Executive Vice President of The Weather Channel Networks, where she was responsible for corporate strategy and development, strategic marketing for The Weather Channel and weather.com, and operations and programming for The Weather Channel, The Weather Channel HD, Weatherscan, The Weather Channel Radio Network, and newspaper syndication.
Before joining The Weather Channel in 2002 as Executive Vice President of Marketing, Lucas held several positions at Turner Broadcasting System, including Senior Vice President of Strategic Marketing for CNN Networks and Vice President of Business Operations and Network Development for TBS, TNT, Turner Classic Movies and Turner South. Her other experience includes brand management for The Coca-Cola Company and The Clorox Company.
In 2010, Lucas was named among the “75 Most Powerful Women in Business” by Black Enterprise magazine. Previous honors include listing among the 2009 “Leading Women in Business” and “Leading Minorities in Business” by Cablefax Daily, recognition as a “Woman To Watch” by Women in Cable Telecommunications, a Brand Builders Award at the 2006 Promax & BDA Conference, recognition as a “Women To Watch” in the 2005 Wonder Women of Cable TV Awards, and the Inspiration Award for “Woman of the Year” in the WICT-Atlanta's 2007 Red Letter Awards. Lucas serves on the Board of Directors of the Cable & Telecommunications Association for Marketing and she was the co-chairperson for the 2007 CTAM Summit. She also has served as a board member for WICT, Inc. and is a graduate of the Betsy Magness Leadership Institute.
Ms. Lucas earned a master's degree in business administration from the University of Pennsylvania's Wharton School of Business and a bachelor's degree in Industrial Engineering from Georgia Institute of Technology.
Environmental Protection Agency (EPA).
Notice of final order on petition to object to a state operating permit.
Pursuant to Clean Air Act (CAA) the EPA Administrator signed an Order, dated June 22, 2012, partially granting and partially denying a petition to object to a CAA merged prevention of significant deterioration and title V operating permit issued by the Kentucky Division for Air Quality (KDAQ) to Kentucky Syngas, LLC (KSG) for its facility located near Central City in Muhlenberg County, Kentucky. This Order constitutes a final action on the petition submitted by Environmental Policy & Law Center on behalf of Sierra Club and Valley Watch (Petitioners) and received by EPA on October 27, 2010. A petition for judicial review of those parts of the Order that deny issues in the petition may be filed in the United States Court of Appeals for the appropriate circuit within 60 days from the date this notice is published in the
September 17, 2012.
Copies of the Order, the petition, and all pertinent information relating thereto are on file at the following location: EPA Region 4; Air, Pesticides and Toxics Management Division; 61 Forsyth Street SW.; Atlanta, Georgia 30303-8960. The Order is also available electronically at the following address:
Art Hofmeister, Air Permits Section, EPA Region 4, at (404) 562-9115 or
The CAA affords EPA a 45-day period to review and, as appropriate, the authority to object to operating permits proposed by state permitting authorities under title V of the CAA, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the CAA and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.
Petitioners submitted a petition regarding KSG (received by EPA on October 27, 2010), requesting that EPA object to the CAA title V operating permit (#V-09-001). Petitioners alleged that the permit was not consistent with the CAA because: (1) KDAQ failed to provide an opportunity for meaningful public participation; (2) KDAQ failed to consider and respond to comments on alternatives; (3) KDAQ's decision to permit the KSG facility and the Thoroughbred Mine separately was arbitrary and capricious; (4) the best available control technology (BACT) analyses omitted consideration of clean fuels and processes; (5) emissions estimates from the flare and BACT for the flare were in error; (6) the permit failed to meet certain requirements for hazardous air pollutants; (7) KDAQ failed to accurately account for all emissions of volatile organic compounds in the potential-to-emit calculation; (8) the permit's monitoring requirements for a variety of different units and pollutants were inadequate; (9) KSG failed to accurately estimate, sufficiently control and adequately model particulate matter; (10) KDAQ failed to demonstrate that the proposed facility will not cause or contribute to violations of the ozone national ambient air quality standard; and (11) the permit lacked the necessary PM
On June 22, 2012, the Administrator issued an Order partially granting and partially denying the petition. The Order explains EPA's rationale for partially granting and partially denying the petition.
Environmental Protection Agency (EPA).
Notice of final order on petition to object to a state operating permit.
Pursuant to Clean Air Act (CAA), the EPA Administrator signed an Order, dated June 22, 2012, partially granting and partially denying a petition to object to a CAA merged prevention of significant deterioration and title V operating permit issued by the Kentucky Division for Air Quality (KDAQ) to Cash Creek Generation, LLC for its Cash Creek Generation Station (Cash Creek) located near Owensboro in Henderson County, Kentucky. This Order constitutes a final action on the petition submitted by Environmental Policy & Law Center on behalf of Sierra Club, Ursuline Sisters of Saint Joseph, and Valley Watch (Petitioners) and received by EPA on June 18, 2010. A petition for judicial review of those parts of the Order that deny issues in the petition may be filed in the United States Court of Appeals for the appropriate circuit within 60 days from the date this notice is published in the
September 17, 2012.
Copies of the Order, the petition, and all pertinent information relating thereto are on file at the following location: EPA Region 4; Air, Pesticides and Toxics Management Division; 61 Forsyth Street, SW; Atlanta, Georgia 30303-8960. The Order is also available electronically at the following address:
Art Hofmeister, Air Permits Section, EPA Region 4, at (404) 562-9115 or
The CAA affords EPA a 45-day period to review and, as appropriate, the authority to object to operating permits proposed by state permitting authorities under title V of the CAA, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the CAA and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.
Petitioners submitted a petition regarding Cash Creek (received by EPA on June 18, 2010), requesting that EPA object to the CAA title V operating permit (#V-09-006). Petitioners alleged that the permit was not consistent with the CAA because: (1) KDAQ failed to provide an opportunity for meaningful public participation; (2) KDAQ's calculation of the proposed facility's potential to emit volatile organic compounds (VOC), hydrogen sulfide and hazardous air pollutants (HAP) failed to account for full emissions from active flaring; (3) the permit's source-wide VOC emission limit was not enforceable as a practical matter; (4) the best available control technology (BACT) limits applicable to the flare during startup and steady-state operations were not supported by a proper BACT analysis; (5) the BACT limits applicable to the flare did not cover shutdown and malfunction periods; (6) the applicant incorrectly estimated fugitive emissions from equipment leaks; (7) KDAQ omitted numerous control options and relied on a faulty cost-effectiveness analysis in selecting BACT for equipment leaks; (8) KDAQ improperly determined that the source was minor for HAPs; (9) Cash Creek's calculation of particulate matter emissions from material handling assumed an unreasonably high control efficiency for wet suppression control methods and used an unreasonably low silt loading factor; (10) permit terms and conditions governing material handling were unenforceably vague and did not equate to the assumed control efficiencies; and (11) Cash Creek failed to perform an adequate ozone impacts analysis.
On June 22, 2012, the Administrator issued an Order partially granting and partially denying the petition. The Order explains EPA's rationale for partially granting and partially denying the petition.
Environmental Protection Agency (EPA).
Notice of proposed consent decree; request for public comment.
In accordance with of the Clean Air Act, as amended (“Act”), notice is hereby given of a proposed consent decree to settle an action in the United States District Court for the Southern District of New York (Environmental Defense Fund v. Jackson, Case No. 11 Civ. 04492 (KBF) ECF Case) alleging that EPA failed to perform its obligations under the Act as they relate to the new source performance standards (“NSPS”) for municipal solid waste landfills (“MSW Landfills”). The Act requires EPA to review, and if appropriate, revise NSPS not later than 8 years after their promulgation unless EPA determines that such review is not appropriate in light of readily available information on the efficacy of the standard. Under the terms of the proposed consent decree, EPA agrees that: (1) By May 1, 2013, EPA shall: (i) Perform an appropriate review and sign for publication one or a combination of the following: (A) a proposed rule containing revisions to the MSW Landfills NSPS; or (B) a proposed determination not to revise the MSW Landfills NSPS; or (ii) sign for publication a determination that review is not appropriate; and, (2) if EPA signs a proposed rule or a proposed determination, then no later than May 1, 2014, sign one or a combination of the following: (i) A final rule containing revisions to the MSW Landfills NSPS, based on appropriate review; or, (ii) a final determination not to revise the MSW Landfills NSPS, based on an appropriate review.
Written comments on the proposed consent decree must be received by August 20, 2012.
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2012-0490, online at
Richard H. Vetter, Air and Radiation Law Office, Office of General Counsel, U.S. Environmental Protection Agency, at Office of Air Quality Planning and Standards, Sector Policies and Program Division (D205-01) 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; telephone: (919) 541-2127; fax number (919) 541-4991; email address:
This proposed consent decree would potentially resolve a law suit filed in the U.S. District Court for the Southern District of New York by the Environmental Defense Fund EDF). EDF alleges that EPA failed to perform its obligations under section 111(b)(1)(B) of the Act, 42 U.S.C. 7411(b)(1)(B), as they relate to the new source performance standards (“NSPS”) for municipal solid waste landfills (“MSW Landfills”), 40 CFR part 60, subpart WWW (40 CFR 60.750—60.759). Section 111(b)(1)(B) of the Act requires EPA to review, and if appropriate, revise NSPS not later than 8 years after their promulgation unless EPA determines that such review is not appropriate in light of readily available information on the efficacy of the standard. Under the terms of the proposed consent decree, EPA agrees that: (1) By May 1, 2013, EPA shall: (i) Perform an appropriate review and sign for publication one or a combination of the following: (A) a proposed rule containing revisions to NSPS Subpart WWW; or (B) a proposed determination not to revise NSPS Subpart WWW; or (ii) sign for publication a determination that review is not appropriate; and, (2) if EPA signs a proposed rule or a proposed determination, then no later than May 1, 2014, sign one or a combination of the following: (i) A final rule containing revisions to NSPS Subpart WWW, based on appropriate review; or, (ii) a final determination not to revise Subpart WWW, based on an appropriate review.
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed consent decree from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines, based on any comment submitted, that consent to this proposed consent decree should be withdrawn, the terms of the consent decree will be affirmed and the consent decree will be submitted for entry by the court.
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2012-0490) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Environmental Protection Agency (EPA).
Availability of draft documents for public comment.
On or about July 16, 2012, the Office of Air Quality Planning and Standards (OAQPS) of the EPA is making available for public comment two draft assessment documents titled,
Comments on all documents should be submitted on or before September 11, 2012.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2008-0699, by one of the following methods:
•
•
•
•
•
For questions related to the draft document titled,
For questions related to the draft document titled,
For questions related to the draft document titled,
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• 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.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Make sure to submit your comments by the comment period deadline identified.
Under section 108(a) of the Clean Air Act (CAA), the Administrator identifies and lists certain pollutants which “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” The EPA then issues air quality criteria for these listed pollutants, which are commonly referred to as “criteria pollutants.” The air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air, in varying quantities.” Under section 109 of the CAA, the EPA establishes primary (health-based) and secondary (welfare-based) NAAQS for pollutants for which air quality criteria are issued. Section 109(d) of the CAA requires periodic review and, if appropriate, revision of existing air quality criteria. The revised air quality criteria reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. The EPA is also required to periodically review and, if appropriate, revise the NAAQS based on the revised air quality criteria.
Air quality criteria and NAAQS have been established for O
As part of the EPA's review of the primary and secondary O
The EPA's plans for conducting these assessments, including the proposed scope and methods of the analyses, were presented in two planning documents titled,
The draft assessment documents announced today convey the approaches taken to assess exposures to ambient O
In addition, on or about August 13, 2012, the EPA will make available the first draft document titled
The EPA is soliciting advice and recommendations from the CASAC by means of a review of these three draft documents at an upcoming public meeting of the CASAC that will be held in September 2012. Information about these public meetings, including the dates and locations, will be published as a separate notice in the
The draft documents briefly described above do not represent and should not be construed to represent any final EPA policy, viewpoint, or determination. The EPA will consider any public comments submitted in response to this notice when revising the documents.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501—3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 17, 2012. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202-395-5167 or via Internet at
Judith B. Herman, Office of Managing Director, (202) 418-0214.
The information collected will be used by the Commission to determine if the applicant is legally, technically, and financially qualified to participate in a FCC auction. In addition, if the applicant applies for status as a particular type of auction participant pursuant to the Commission's rules, the Commission will use the information to determine if the applicant is eligible for the status requested.
The Commission's auction rules and requirements are designed to ensure that the competitive bidding process is limited to serious qualified applicants; to deter possible abuse of the bidding and licensing processes; and to enhance the use of competitive bidding to assign Commission licenses in furtherance of the public interest. The Commission uses additional information collected from applicants claiming eligibility for small business benefits to ensure that only legitimate small businesses reap the benefits of the Commission's designated entity program. Over the last decade, the Commission has engaged in numerous rulemakings and adjudicatory investigations to prevent companies from circumventing the objectives of the designated entity eligibility rules. The Commission uses this form for all upcoming auctions.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3502-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimates; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before August 20, 2012. If you anticipate that you will be submitting PRA comments, but find it
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202-395-5167 or via Internet at
Judith B. Herman, Office of Managing Director, FCC, at 202-418-0214.
Specifically, the Commission extended mandatory outage reporting rules to facilities-based and non-facilities based interconnected VoIP service providers and applied the current Part 4 definition of “outage” to outages of interconnected VoIP service, covering the complete loss of service and/or connectivity to customers at least 30 minutes duration that potentially affects at least 900,000 user minutes of interconnected VoIP services and results in complete loss of service; or potentially affects any special offices and facilities such as a 911 facility.
Collecting data on significant outages of interconnected VoIP services will help the Commission to monitor compliance with the statutory 911 obligations of interconnected VoIP service providers, as well as help ensure the Nation's current and future 911 systems are as reliable and resilient as possible both on a day-to-day basis and in times of a major emergency. The Commission recognizes that consumers are increasingly relying on Internet Protocol (IP)-based technologies as substitutes for communications services provided by older communications technologies, and increasingly use interconnected VoIP services in lieu of traditional telephone service. As of December 31, 2010, 31 percent of the more than 87 million residential telephone subscriptions in the United States were users of interconnected VoIP providers—an increase of 21 percent (from 22.4 million to 27.1 million) from the end of 2009. Additionally, the Commission estimates that approximately 31 percent of residential wireline 911 calls are made using VoIP service.
The information collected is administered by the FCC's Public Safety and Homeland Security Bureau (PSHSB) which maintains an Internet Web site portal for the electronic submission of he required outage reports. In addition, provision is made for the submission of required data by other than electronic means in cases where electronic submission is not feasible. In cases where specified offices and facilities (other than 911 offices and facilities) are submitted with 120 minutes of an outage to the Commission's duty officer (a post staffed 24 hours a day) in the FCC's Communications and Crisis Management Center in Washington, DC.
Federal Communications Commission.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3502-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimates; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before August 20, 2012. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202-395-5167 or via Internet at
Judith B. Herman, Office of Managing Director, FCC, at 202-418-0214.
The information collected is necessary to require owners of marine VHF radios with Digital Selective Calling (DSC) capability to register information such as the name, address, type of vessel with a private entity issuing marine mobile service identities (MMSI). The information would be used by search and rescue personnel to identify vessels in distress and to select the proper rescue units and search methods. The requirement to collect this information is contained in international agreements with the U.S. Coast Guard and private sector entities that issue MMSI's.
The information is used by private entities to maintain a database used to provide information about the vessel owner in distress using marine VHF radios with DSC capability. If the data were not collected, the U.S. Coast Guard would not have access to this information which would increase the time and effort needed to complete a search and rescue operation.
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, email your request, including your address, phone number, OMB number, and OS document identifier, to
It supports the Office of Minority Health within the Office of the Secretary of the Department of Health and Human Services (HHS/OS/OMH) in complying with the cultural competency requirements of the Patient Protection and Affordable Care Act of 2010 (ACA) (P.L.111-148), as well as the Secretary's Plan to Reduce Racial and Ethnic Health Disparities, the National Stakeholder Strategy for Achieving Health Equity, Healthy People 2020, the Secretary's Strategic Plan priorities, and the Assistant Secretary for Health's Public Health Quality agenda.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice; correction.
HHS published a notice in the
All employees of DOE, its predecessor agencies, and their contractors, or subcontractors who worked at the Feed Materials Production Center (FMPC) in Fernald, Ohio, from January 1, 1968 through December 31, 1978, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
The designation published in this notice of correction will become effective on July 27, 2012, unless Congress provides otherwise prior to the effective date. After this effective date, HHS will publish a notice in the
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, NIOSH, 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 1-877-222-7570. Information requests can also be submitted by email to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Examination of Online Direct-to-Consumer Prescription Drug Promotion” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Juanmanuel Vilela, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-7651,
On January 31, 2012, the Agency submitted a proposed collection of information entitled “Examination of Online Direct-to-Consumer Prescription Drug
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by August 20, 2012.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
Juanmanuel Vilela, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-7651,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection approval request is for FDA guidance on the process for formally resolving scientific and procedural disputes in the Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER) that cannot be resolved at the division level. The guidance describes procedures for formally appealing such disputes to the office or center level and for submitting information to assist center officials in resolving the issue(s) presented. The guidance provides information on how the Agency will interpret and apply provisions of the existing regulations regarding internal Agency review of decisions (§ 10.75 (21 CFR 10.75)) and dispute resolution during the investigational new drug (IND) process (§ 312.48 (21 CFR 312.48)) and the new drug application/abbreviated new drug application (NDA/ANDA) process (§ 314.103 (21 CFR 314.103)). In addition, the guidance provides information on how the Agency will interpret and apply the specific Prescription Drug User Fee Act (PDUFA) goals for major dispute resolution associated with the development and review of PDUFA products.
Existing regulations, which appear primarily in 21 CFR parts 10, 312, and 314, establish procedures for the resolution of scientific and procedural disputes between interested persons and the Agency, CDER, and CBER. All Agency decisions on such matters are based on information in the administrative file (§ 10.75(d)). In general, the information in an administrative file is collected under existing regulations in part 312 (OMB control number 0910-0014), part 314 (OMB control number 0910-0001), and part 601 (21 CFR part 601) (OMB control number 0910-0338), which specify the information that manufacturers must submit so that FDA may properly evaluate the safety and effectiveness of drugs and biological products. This information is usually submitted as part of an IND, NDA, or biologics license application (BLA), or as a supplement to an approved application. While FDA already possesses in the administrative file the information that would form the basis of a decision on a matter in dispute resolution, the submission of particular information regarding the request itself and the data and information relied on by the requestor in the appeal would facilitate timely resolution of the dispute. The guidance describes the following collection of information not expressly specified under existing regulations: The submission of the request for dispute resolution as an amendment to the application for the underlying product, including the submission of supporting information with the request for dispute resolution.
Agency regulations (§§ 312.23(11)(d), 314.50, 314.94, and 601.2) state that information provided to the Agency as part of an IND, NDA, ANDA, or BLA is to be submitted in triplicate and with an appropriate cover form. Form FDA 1571 must accompany submissions under INDs and Form FDA 356h must accompany submissions under NDAs, ANDAs, and BLAs. Both forms have valid OMB control numbers as follows: FDA Form 1571—OMB control number 0910-0014, and FDA Form 356h—OMB control number 0910-0338.
In the guidance document, CDER and CBER ask that a request for formal dispute resolution be submitted as an amendment to the application for the underlying product and that it be submitted to the Agency in triplicate with the appropriate form attached, either Form FDA 1571 or Form FDA 356h. The Agency recommends that a request be submitted as an amendment in this manner for two reasons: To ensure that each request is kept in the administrative file with the entire underlying application and to ensure that pertinent information about the request is entered into the appropriate tracking databases. Use of the information in the Agency's tracking databases enables the appropriate Agency official to monitor progress on the resolution of the dispute and to ensure that appropriate steps will be taken in a timely manner.
CDER and CBER have determined and the guidance recommends that the following information should be submitted to the appropriate center with each request for dispute resolution so that the Center may quickly and efficiently respond to the request: (1) A brief but comprehensive statement of each issue to be resolved, including a description of the issue, the nature of the issue (i.e., scientific, procedural, or both), possible solutions based on information in the administrative file, whether informal dispute resolution
Based on FDA's experience with dispute resolution, the Agency expects that most persons seeking formal dispute resolution will have gathered the materials listed previously when identifying the existence of a dispute with the Agency. Consequently, FDA anticipates that the collection of information attributed solely to the guidance will be minimal.
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled Survey of “Health Care Providers' Responses to Medical Device Labeling” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Daniel Gittleson, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-5156,
On March 8, 2012, the Agency submitted a proposed collection of information entitled Survey of “Health Care Providers' Responses to Medical Device Labeling” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0715. The approval expires on July 31, 2015. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
The Argus II System is indicated for use in patients with severe to profound retinitis pigmentosa who meet the following criteria:
• Adults, age 25 years or older.
• Bare light or no light perception in both eyes with Snellen acuity worse than 20/2100 or 2.1 logMAR. If the patient has no residual light perception, the retina must be able to respond to electrical stimulation as evidenced by an electrically evoked response.
• Previous history of useful form vision.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact AnnMarie Williams at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
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
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.
National Institutes of Health, Public Health Service, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i), that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in PCT Patent Application No. PCT/US2005/12289, U.S. Patent No. 7,901,881, U.S. Patent Application No. 13/024,845 and foreign equivalents thereof entitled “Diagnostic Tool for Diagnosing Benign Versus Malignant Thyroid Lesions” (HHS Ref. No. E-124-2004/0,1,2) and PCT Patent Application No. PCT/US2008/010139 and U.S. Patent Application No. 12/675,209 entitled “Diagnostic Tool for Diagnosing Benign Versus Malignant Thyroid Lesions” (HHS Ref. No. E-326-2007/0) to Veracyte, Inc., which is located in San Francisco, California. The patent rights in these inventions have been assigned to the United States of America.
Other than license applications submitted as objections to this Notice of Intent to Grant an Exclusive License, no further license applications will be considered for the exclusive field of use set forth below if Veracyte, Inc. is granted an exclusive license pursuant to this Notice of Intent to Grant an Exclusive License. The prospective exclusive license territory may be worldwide and the field of use may be limited to the use of Licensed Patent Rights for the diagnosis and prognosis of thyroid cancer.
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before August 20, 2012 will be considered, in addition to the current non-exclusive applications under consideration, for the prospective license territory and field of use to be granted under the contemplated exclusive patent license.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: Whitney A. Hastings, Ph.D., Licensing and Patenting Manager, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; Telephone: (301) 451-7337; Facsimile: (301) 402-0220; Email:
This technology is based on the discovery of differentially expressed thyroid (DET) genes and their encoded proteins whose expression levels can be correlated to benign or malignant states in a thyroid cell. Specifically, this data arose from a microarray analysis of genes expressed in the eight subtypes of thyroid tumors that are typically difficult to diagnose by cytology of fine needle aspiration (FNA) biopsies. Analysis of the (DET) genes led to the development of 6 gene and 10 gene models that distinguish benign vs. malignant papillary thyroid tumors. Subsequently, a 72 gene model has been developed for diagnosing less common forms of thyroid cancer such as follicular carcinoma. These results provide a molecular classification system for thyroid tumors and this in turn provides a more accurate diagnostic tool for the clinician managing patients with suspicious thyroid lesions. In addition to diagnostics, this invention can be used in the staging of thyroid malignancies by measuring changes in DET gene and protein expression relative to reference cells. Finally, this invention can also be used in the discovery of therapeutic agents through the detection in changes of DET gene and protein levels prior to and after treatment.
The prospective exclusive license and any further license applications received as objections to this Notice of Intent to Grant an Exclusive License, will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless within thirty (30) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Any additional applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license.
Office of the General Counsel, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Reports Liaison Officer, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500.
Sherece Tolbert, Deputy Assistant General Counsel, Single Family Mortgage Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 9240, Washington, DC 20410-0500, telephone (202-708-0080) (this is not a toll-free number).
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
Estimation of the total numbers of hours needed to prepare the information collection including number of respondents, frequency of response, and hours of response:
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969 (NEPA), as amended, and the Federal Land Policy and Management Act (FLPMA) of 1976, as amended, the Bureau of Land Management (BLM) Wells Field Office, Elko, Nevada, intends to prepare an Environmental Impact Statement (EIS) for the Long Canyon Mine, and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the EIS. Comments on issues may be submitted in writing until September 4, 2012. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local media, newspapers, and the BLM Web site at: www.blm.gov/rv5c. In order to be included in the Draft EIS, all comments must be received prior to the close of the scoping period. The BLM will provide additional opportunities for public participation upon publication of the Draft EIS.
You may submit comments related to the Long Canyon Mine Project by any of the following methods:
•
•
•
Whitney Wirthlin, project lead, telephone: 775-753-0342; email:
Newmont Mining Corporation (Newmont) proposes to construct and operate an open-pit gold mining operation, which would include one open pit, a heap leach pad, one waste rock dump, a tailings storage facility, and other ancillary facilities. The mine would be located on the eastern side of the Pequop Mountain Range, about 30 miles east of Wells, Nevada, and 32 miles west of West Wendover, Nevada, and 5 miles south of Interstate 80. Currently, Fronteer Development, a subsidiary of Newmont, is authorized to disturb up to 115 acres for exploration purposes. The associated disturbance for the proposed operations would increase to 1,631 acres of public land, including 480 acres of split estate lands of Federal surface and private subsurface. The projected life of the mine is 8 to 14 years, including construction, operations, and closure and post-closure monitoring. An estimated annual workforce for operations would be approximately 300 to 500 people during the life of the mine.
Fronteer is currently conducting exploration activities in this area that were analyzed in two environmental assessments (EA), the
The issues identified during scoping will be used to develop a range of alternatives, including a no-action alternative. Mitigation measures will be considered to minimize environmental impacts and to ensure the proposed action does not result in unnecessary or undue degradation of public lands.
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EIS. At present, the BLM has identified the following preliminary issues:
(a) Potential effects to archaeological resources in the area;
(b) Potential effects to greater sage-grouse posed by the proximity to an active sage-grouse lek;
(c) Potential effects to viewshed in and around areas of Visual Resources Management Classes I through IV;
(d) Potential impacts to the water supply of Wendover, Utah, and West Wendover, Nevada; and
(e) Potential effects to the Area 7 mule deer herd and the mule deer migration corridor associated with the herd. The proposed project area is located in a mule deer migration corridor.
The BLM will utilize and coordinate the NEPA commenting process to help fulfill the public involvement process under Section 106 of the National Historic Preservation Act (16 U.S.C. 470f) as provided for in 36 CFR 800.2(d)(3). Native American tribal consultations will be conducted in accordance with policy, and tribal concerns will be given due consideration, including impacts on Indian trust assets. Federal, State, and local agencies, along with other stakeholders that may be interested or affected by the BLM's decision on this project are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501 and 43 CFR 3809.
Bureau of Land Management, Interior.
Notice.
The plats of survey of lands described below are scheduled to be officially filed in the Bureau of Land Management California State Office, Sacramento, California, thirty (30) calendar days from the date of this publication.
A copy of the plats may be obtained from the California State Office, Bureau of Land Management, 2800 Cottage Way, Sacramento, California 95825, upon required payment.
Chief, Branch of Geographic Services, Bureau of Land Management, California State Office, 2800 Cottage Way, Room W-1623, Sacramento, California 95825, (916) 978-4310.
These surveys were executed to meet the administrative needs of various federal agencies; the Bureau of Land Management, Bureau of Indian Affairs or Bureau of Reclamation. The lands surveyed are:
43 U.S.C., Chapter 3.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Eastern Montana Resource Advisory Council (RAC) will meet as indicated below.
The next regular meeting of the Eastern Montana RAC will be held on September 19, 2012, in Miles City, Montana. The meeting will start at 8:00 a.m. and adjourn at approximately 3:30 p.m.
When determined, the meeting location will be announced in a news release.
Mark Jacobsen, Public Affairs Specialist, BLM Eastern Montana/Dakotas District, 111 Garryowen Road Miles City, Montana 59301, (406) 233-2831,
The 15-member council advises the Secretary of the Interior through the BLM on a variety of planning and management issues associated with public land management in Montana. At these meetings, topics will include: Miles City and Billings Field Office manager updates, subcommittee briefings, work sessions, and other issues that the council may raise. All meetings are open to the public and the public may present written comments to the council. Each formal RAC meeting will also have time allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited. Individuals who plan to attend and need special assistance, such as sign language interpretation, tour transportation, or other reasonable accommodations should contact the BLM as provided above.
National Park Service, Interior.
Notice.
The New York University College of Dentistry has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the New York University College of Dentistry. Disposition of the human remains to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the New York University College of Dentistry at the address below by August 20, 2012.
Dr. Louis Terracio, New York University College of Dentistry, 345 East 24th St, New York, NY 10010, telephone (212) 998-9917.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the New York University College of Dentistry. The human remains were removed from Rincon, in Santa Cruz County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the New York University College of Dentistry professional staff in consultation with representatives of the Big Sandy Rancheria of Mono Indians of California; Cold Springs Rancheria of Mono Indians of California; Northfork Rancheria of Mono Indians of California; Picayune Rancheria of Chukchansi Indians of California; Santa Rosa Indian Community of the Santa Rosa Rancheria, California; Table Mountain Rancheria of California; Tule River Indian Tribe of the Tule River Reservation, California; and the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California (hereafter referred to as “The Tribes”).
At an unknown date, human remains representing, at minimum, one individual were removed from an unknown site in Rincon, in Santa Cruz County, CA by an unknown individual. At an unknown date, the remains were catalogued into the Department of Physical Anthropology, Museum of the American Indian. In 1956, the remains were transferred to Dr. Theodore Kazamiroff, New York University College of Dentistry. No known individuals were identified. No associated funerary objects are present.
Officials of the New York University College of Dentistry have determined that:
• Based on catalog information and forensic examination, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of the southern Yokut and western Mono, who are represented today by The Tribes.
• The unratified treaty of 1851 indicates that the land from which the Native American human remains were removed is the aboriginal land of the southern Yokut and western Mono, who are represented today by The Tribes.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to The Tribes.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Dr. Louis Terracio, New York University College of Dentistry, 345 East 24th St, New York, NY 10010, telephone (212) 998-9917, before August 20, 2012. Disposition of the human remains to The Tribes may proceed after that date if no additional requestors come forward.
The New York University College of Dentistry is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The New York University College of Dentistry has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the New York University College of Dentistry. Repatriation of the human remains to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the New York University College of Dentistry at the address below by August 20, 2012.
Dr. Louis Terracio, New York University College of Dentistry, 345 East 24th St, New York, NY 10010, telephone (212) 998-9917.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the New York University College of Dentistry. The human remains were removed from San Joaquin County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the New York University College of Dentistry professional staff in consultation with representatives of the Buena Vista Rancheria of Me-Wuk Indians of California; California Valley Miwok Tribe, California; Chicken Ranch Rancheria of Me-Wuk Indians of California; Federated Indians of Graton Rancheria, California; Ione Band of Miwok Indians of California; Jackson Rancheria of Me-Wuk Indians of California; Picayune Rancheria of Chukchansi Indians of California; Santa Rosa Indian Community of the Santa Rosa Rancheria, California; Shingle Springs Band of Miwok Indians, Shingle Springs Rancheria (Verona Tract), California; Table Mountain Rancheria of California; Tule River Indian Tribe of the Tule River Reservation, California; Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California; and the United Auburn Indian Community of the Auburn Rancheria of California (hereafter referred to as “The Tribes”).
At an unknown date, human remains representing, at minimum, two individuals were removed from Rhoads Mound in San Joaquin County, CA. At an unknown date, they became part of the collection of H.K. Deisher, which was sold in 1905. In 1916, the remains were catalogued into the collection of the Department of Physical Anthropology, Museum of the American Indian. In 1956, the remains were transferred to Dr. Theodore Kazamiroff, New York University College of Dentistry. No known individuals were identified. No associated funerary objects are present.
Rhoads Mound is a protohistoric site (A.D. 1500-1770) located on Roberts Island in the San Joaquin-Sacramento River delta. The island lies at the southern edge of aboriginal territory of the Eastern (Bay and Plains) Miwok and the northern edge of aboriginal territory of the Northern Valley Yokut.
At an unknown date, human remains representing, at minimum, two individuals were removed from Walkers Slough Mound in San Joaquin County, CA. At an unknown date, they became part of the collection of H.K. Deisher, which was sold in 1905. In 1916, the remains were catalogued into the collection of the Department of Physical Anthropology, Museum of the American Indian. In 1956, the remains were transferred to Dr. Theodore Kazamiroff, New York University College of Dentistry. No known individuals were identified. No associated funerary objects are present.
The Walkers Slough Mound is a historic site (A.D. 1770-1850) located near Stockton, in the area of the San Joaquin River Valley. The mound lies at the southern edge of aboriginal territory of the Eastern (Bay and Plains) Miwok and the northern edge of aboriginal territory of the Northern Valley Yokut.
The territorial divisions within the aboriginal lands of the Eastern (Bay and Plains) Miwok and the Northern Valley Yokut was diffuse and shifted through time. During consultation, tribal representatives stated that the early anthropological studies of the Yokuts and Miwok incorrectly divided these groups into discrete tribelets and overemphasized linguistic differences. Tribal representatives explained that although different dialects were spoken, the Miwok spoke a mutually intelligible language. The Yokuts also spoke a mutually intelligible language with regional dialects. Tribal representatives indicated that high population mobility and frequent intermarriage between groups during the historic period has resulting in a relationship of shared group identity for all Miwok tribes. Similarly, tribal representatives indicated that the Yokuts are all interrelated due to high population mobility and frequent intermarriage between groups.
Tribal representatives identified the descendants of the Eastern Miwok among the members of the Federally-recognized Miwok communities, including the Buena Vista Rancheria of Me-Wuk Indians of California; California Valley Miwok Tribe, California; Chicken Ranch Rancheria of Me-Wuk Indians of California; Federated Indians of Graton Rancheria, California; Ione Band of Miwok Indians
Officials of the New York University College of Dentistry have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and The Tribes.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Louis Terracio, New York University College of Dentistry, 345 East 24th St, New York, NY 10010, telephone (212) 998-9917, before August 20, 2012. Repatriation of the human remains to The Tribes may proceed after that date if no additional claimants come forward.
The New York University College of Dentistry is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Montana has completed an inventory of Native American human remains and associated funerary objects in consultation with the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation, Montana, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation, Montana. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the University of Montana. Repatriation of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the University of Montana at the address below by August 20, 2012.
Dr. Sally Thompson, Department of Anthropology, University of Montana, Missoula, MT 59812, telephone (406) 243-5525.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the collections of the University of Montana, Missoula, MT. Human remains of three individuals and associated funerary objects were removed from locations along the west shore of Flathead Lake in Lake County, MT. Human remains of one individual were removed from within the city limits of Missoula, MT.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the institution that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Montana professional staff in consultation with representatives of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation, Montana.
In 1950, human remains representing, at minimum, two individuals were removed from the west shore of Flathead Lake, north of the Flathead Reservation, in Lake County, MT. This pre-contact burial was disturbed by excavation equipment and then turned over to the University of Montana, Department of Anthropology. The remains were discovered in the University's collection in 2011. Of the two individuals present, one is the nearly complete skeleton of an older female, at least 50 years of age at death. The second individual, represented only by several vertebrae, was also elderly, but exact age and sex cannot be determined. No known individuals were identified. No associated funerary objects are present.
In 1950, human remains representing, at minimum, one individual were removed from a primary, flexed burial in a rock outcropping on the west shore of Flathead Lake, in Lake County, MT, during real estate development. The site is within the boundaries of the Flathead Reservation but on private land near the town of Dayton, MT. Local amateur archaeologist, Thain White, contacted Carling Malouf of the University of Montana, Department of Anthropology, and the remains and associated funerary objects were removed to the University of Montana in Missoula. The human remains and associated funerary objects were discovered in the University's collection in 2011. The mostly complete skeleton is of a male, aged 35 to 50 years at death. No known individual was identified. The eight associated funerary objects are 1 large (6 cm) turtle-backed stone scraper, 1 chalcedony flake, 2 shell beads, 3 antler pieces, and 1 lot of faunal remains.
In 1950, during excavations for a business establishment human remains representing, at minimum, one individual were removed by a bulldozer from an historical Indian burial in the city of Missoula, MT. This burial site location is within the aboriginal territory of the Confederated Salish and Kootenai Tribes. The nearly complete skeletal remains of a child, aged 7 to 8 years at death, and associated funerary objects were transferred by the County Coroner to the University of Montana,
Officials of the University of Montana have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 14 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Dr. Sally Thompson, Department of Anthropology, University of Montana, Missoula, MT 59812, telephone (406) 243-5525 before August 20, 2012. Repatriation of the human remains and associated funerary objects to the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana, may proceed after that date if no additional claimants come forward.
The University of Montana is responsible for notifying the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana, that this notice has been published.
National Park Service, Interior.
Notice; correction.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the New York University College of Dentistry, New York, NY. The human remains were removed from Bronx County, NY.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
This notice corrects the name of a culturally affiliated tribe in a Notice of Inventory Completion published in the
In the
A detailed assessment of the human remains was made by New York University College of Dentistry professional staff in consultation with representatives of the Delaware Nation of Oklahoma; Delaware Tribe of Indians, Oklahoma; and Stockbridge Munsee Community, Wisconsin.
In the
Today, these groups are known as the Delaware Nation of Oklahoma and the Delaware Tribe of Indians, Oklahoma. Consultation evidence supports the identification of remains from the Broadway and Isham Streets site as Munsee and the cultural affiliation of the remains as the Delaware Nation of Oklahoma; Delaware Tribe of Indians, Oklahoma; and Stockbridge Munsee Community, Wisconsin.
In the
Officials of New York University College of Dentistry have also determined that, pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Delaware Nation of Oklahoma; Delaware Tribe of Indians, Oklahoma; and Stockbridge Munsee Community, Wisconsin.
In the
Repatriation of the human remains to the Delaware Nation of Oklahoma; Delaware Tribe of the Indians, Oklahoma; and Stockbridge Munsee Community, Wisconsin, may proceed after that date if no additional claimants come forward.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Louis Terracio, New York University College of Dentistry, 345 East 24th St, New York, New York, 10010, telephone 212-998-9917, before August 20, 2012 Repatriation of the human remains to the Delaware Nation of Oklahoma; Delaware Tribe of the Indians, Oklahoma; and Stockbridge Munsee Community, Wisconsin, may proceed after that date if no additional claimants come forward.
The New York University College of Dentistry is responsible for notifying the Delaware Nation of Oklahoma; Delaware Tribe of Indians, Oklahoma; and Stockbridge Munsee Community, Wisconsin, that this notice has been published.
National Park Service, Interior.
Notice.
History Colorado (formerly the Colorado Historical Society) has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is insufficient evidence to reasonably establish cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact History Colorado. Disposition of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact History Colorado at the address below by August 20, 2012.
Sheila Goff, NAGPRA Liaison, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866-4561.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of History Colorado, Denver, CO. One set of remains was discovered in Rio Blanco County, CO. The exact locations from which the three additional sets of human remains were recovered are unknown.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
In 2012, a detailed assessment of the human remains and associated funerary objects was made by History Colorado professional staff in consultation with representatives of the Arapahoe Tribe of the Wind River Reservation, Wyoming; Cheyenne and Arapaho Tribes, Oklahoma (formerly the Cheyenne-Arapaho Tribes of Oklahoma); Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Comanche Nation, Oklahoma; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Crow Tribe of Montana; Fort Sill Apache Tribe of Oklahoma; Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Kewa Pueblo, New Mexico (formerly Pueblo of Santo Domingo); Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana; Ohkay Owingeh, New Mexico (formerly the Pueblo of San Juan); Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); Pawnee Nation of Oklahoma; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Zia, New Mexico; Shoshone Tribe of the Wind River Reservation, Wyoming; Southern Ute Indian Tribe of the Southern Ute Indian Reservation, Colorado; Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma; Ysleta del Sur Pueblo of Texas; and the Zuni Tribe of the Zuni Reservation, New Mexico.
The Apache Tribe of Oklahoma; Kiowa Indian Tribe of Oklahoma; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of Tesuque, New Mexico; Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; San Juan Southern Paiute Tribe of Arizona; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Standing Rock Sioux Tribe of North & South Dakota; and the Ute Indian Tribe of the Uintah & Ouray Reservation, Utah, were invited to consult but did not respond.
In November 2011, human remains representing, at minimum, one individual were inadvertently discovered by a utility crew excavating a flow line within an active oil field owned by Chevron Oil Company in Rio Blanco County, CO. The Office of the State Archaeologist was notified and conferred with the Colorado Commission of Indian Affairs, the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah, and the landowner. Because the unmarked burial was threatened, the remains were disinterred and transferred to History Colorado. They are identified as Office of Archaeology and Historic Preservation (OAHP) Case Number 282. Osteological analysis determined the remains are of Native American ancestry. No known individuals were identified. The five associated funerary objects are 1 round hammerstone, 2 bone pendants, 1 grayware pottery sherd, and 1 bone awl. The estimated antiquity is unknown.
At an unknown date, a schoolteacher obtained human remains representing, at minimum, one individual. In 2011, after the teacher retired, his successor discovered the remains in the classroom and turned them over to Jefferson County law enforcement, who notified the Office of the State Archaeologist. The remains were transferred to History Colorado in December 2011. They are identified as OAHP Case Number 283. The location from which the remains were removed is not known. Osteological analysis determined that the remains are of Native American ancestry. No known individuals were identified. No associated funerary objects are present. The estimated antiquity is unknown.
Sometime in 1987, human remains representing, at minimum, one individual were removed from Park County, CO, although the exact location is unknown. In 1988, the human remains were transferred to Dr. Michael Charney, a former professor at Colorado State University. Dr. Charney's analysis determined that they were not of forensic interest and that the remains are of Native American ancestry. He reported this to the Park County Coroner and retained the remains. In 1998, the remains were claimed as private property by the widow of Dr. Charney after his death. The human remains were subsequently taken into custody by the Larimer County Sheriff's Office. Following litigation in 2006, the remains were inadvertently returned to Park County because the box they were in stated they were of forensic interest. In December 2011, the Park County Coroner discovered the error and transferred the remains to History Colorado, who had previously received
In August 2011, a private citizen reported a discovery of human remains representing, at minimum, one individual to the Clear Creek County coroner. They are identified as OAHP Case Number 285. They were found near the site of a house that had burned down in October 2010. The exact location of removal is unknown. The Office of the State Archaeologist was notified and the remains were transferred to History Colorado in December 2011. Osteological analysis determined that the remains are of Native American ancestry. No known individuals were identified. No associated funerary objects are present. The estimated antiquity is unknown.
Officials at History Colorado have determined that:
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains described above and any present-day Indian tribe.
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of four individuals of Native American ancestry.
• Pursuant 25 U.S.C. 3001(3)(A), the five objects described above are reasonably believed to have been placed with or near the individual human remains at the time of death or later as a part of the death rite ceremony.
History Colorado has determined that the human remains are “culturally unidentifiable” under NAGPRA, 43 CFR 10.9 (e)(6). In 2006, History Colorado, in partnership with the Colorado Commission of Indian Affairs, Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah, conducted consultations with the tribes that have ancestral ties to the state of Colorado to develop the process for disposition of culturally unidentifiable Native American human remains and associated funerary objects originating from inadvertent discoveries on Colorado state and private lands. As a result of the consultation, a process was developed, titled
OAHP 282 was recovered from Rio Blanco County, which is located in the Basin and Plateau Consultation Region, as established by the
The Native American Graves Protection and Repatriation Review Committee (Review Committee) is responsible for recommending specific actions for disposition of culturally unidentifiable human remains. On November 3-4, 2006, the
43 CFR 10.11 was promulgated March 15, 2010, providing a process for the disposition of culturally unidentifiable Native American human remains recovered from tribal or aboriginal lands as established by the final judgment of the Indian Claims Commission or U.S. Court of Claims, a treaty, Act of Congress, or Executive Order, or other authoritative governmental sources. There is no evidence indicating that the human remains reported in this notice originated from tribal or aboriginal lands, making them eligible for disposition under the
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Sheila Goff, NAGPRA Liaison, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866-4531, before August 20, 2012. Transfer of control of the human remains to the Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah may proceed after that date if no additional claimants come forward.
History Colorado is responsible for notifying the Apache Tribe of Oklahoma; Arapahoe Tribe of the Wind River Reservation, Wyoming; Cheyenne and Arapaho Tribes, Oklahoma; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Comanche Nation, Oklahoma; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Crow Tribe of Montana; Fort Sill Apache Tribe of Oklahoma; Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Kewa Pueblo, New Mexico (formerly Pueblo of Santo Domingo); Kiowa Indian Tribe of Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Ohkay Owingeh, New Mexico (formerly the Pueblo of San Juan); Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); Pawnee Nation of Oklahoma; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of
National Park Service, Interior.
Notice.
The New York University College of Dentistry has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the New York University College of Dentistry. Disposition of the human remains to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the New York University College of Dentistry at the address below by August 20, 2012.
Dr. Louis Terracio, New York University College of Dentistry, 345 East 24th St, New York, NY 10010, telephone (212) 998-9917.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the New York University College of Dentistry. The human remains were removed from Fresno County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the New York University College of Dentistry professional staff in consultation with representatives of the Picayune Rancheria of Chukchansi Indians of California; Santa Rosa Indian Community of the Santa Rosa Rancheria, California; Table Mountain Rancheria of California; Tule River Indian Tribe of the Tule River Reservation, California; and the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California (hereafter referred to as “The Tribes”).
At an unknown date, human remains representing, at minimum, one individual were removed from an unknown site in the city of Fresno, in Fresno County, CA. In 1923, the remains were catalogued into the collection of the Department of Physical Anthropology, Museum of the American Indian. In 1956, the remains were transferred to Dr. Theodore Kazamiroff, New York University College of Dentistry. No known individuals were identified. No associated funerary objects are present.
Officials of the New York University College of Dentistry have determined that:
• Based on catalog information and forensic examination, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of the Yokuts and southern Miwok, who are represented today by The Tribes.
• The unratified treaty of 1851 indicates that the land from which the Native American human remains were removed is the aboriginal land of the Yokuts and southern Miwok, who are represented today by The Tribes.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to The Tribes.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Dr. Louis Terracio, New York University College of Dentistry, 345 East 24th St, New York, NY 10010, telephone (212) 998-9917, before August 20, 2012. Disposition of the human remains to The Tribes may proceed after that date if no additional requestors come forward.
The New York University College of Dentistry is responsible for notifying The Tribes that this notice has been published.
The Legal Services Corporation's Board of Directors and its six committees will meet on July 27, 2012. The meetings will occur in the order noted below, with the first meeting commencing at 8:30 a.m., Eastern Daylight Time, and each meeting thereafter commencing promptly upon adjournment of the immediately preceding meeting. The exception will be the meetings of the Institutional Advancement Committee and the Audit Committee, which will run concurrently immediately upon conclusion of the meeting of the Governance and Performance Review Committee.
Sheraton Ann Arbor Hotel, 3200 Boardwalk Drive, Ann Arbor, Michigan 48108.
Unless otherwise noted herein, the Board and all committee meetings will be open to public observation. Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below but are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold. From time to time, the presiding Chair may solicit comments from the public.
• Call toll-free number: 1-866-451-4981;
• When prompted, enter the following numeric pass code: 5907707348;
• When connected to the call, please immediately “Mute” your telephone.
* Please note that all times in this notice are in the Eastern Daylight Time.
Open, except as noted below.
** The meeting of the Institutional Advancement Committee will run concurrently with the meeting of the Audit Committee.
*** Any portion of the closed session consisting solely of briefings does not fall within the Sunshine Act's definition of the term “meeting” and, therefore, the requirements of the Sunshine Act do not apply to such portion of the closed session. 5 U.S.C. 552b(a)(2) and (b).
A verbatim written transcript will be made of the closed session of the Board and Institutional Advancement Committee meetings. The transcript of any portions of the closed session falling within the relevant provisions of the Government in the Sunshine Act, 5 U.S.C. § 552b(c)(9) and (10), and the corresponding provision of the Legal Services Corporation's implementing regulations, 45 CFR 1622.5(g) and (h), will not be available for public inspection. A copy of the General Counsel's Certification that in his opinion the closing is authorized by law will be available upon request.
1. Approval of agenda.
2. Approval of minutes of the Committee's meeting of April 15, 2012.
3. Staff report on certification letter sent to House and Senate Appropriations Committees.
4. Staff report on progress in implementing GAO recommendations.
5. Consider and act on other business.
6. Public comment.
7. Consider and act on motion to adjourn meeting.
1. Approval of agenda.
2. Approval of minutes of the Committee's June 25, 2012 meeting.
3. Report on 403(b) annual plan review and update on annual audit.
• Traci Higgins, Director, Office of Human Resources.
4. Consider and act on revised Audit Committee charter.
5. Briefing by Office of Inspector General.
• Jeffrey Schanz, Inspector General.
6. Public comment.
7. Consider and act on other business.
8. Consider and act on adjournment of meeting.
1. Approval of agenda.
2. Approval of minutes of the Committee's meeting of April 15, 2012.
3. Discussion of Committee work for August—September.
4. Public comment.
5. Consider and act on other business.
6. Briefing by Bob Osborne Development Consultant.
7. Consider and act on a draft Development Plan for the Corporation.
8. Consider and act on motion to adjourn the meeting.
1. Approval of agenda.
2. Presentation on LSC's Financial Reports for the first eight months of FY 2012.
• Presentation by David Richardson, Treasurer/Comptroller.
3. Consider and act on a Revised Consolidated Operating Budget for FY 2012, including internal budgetary adjustments and COB reallocation, and recommendation of Resolution 2012-XXX to the Board of Directors.
Presentation by David Richardson, Treasurer/Comptroller.
4. Review of the Guidelines for Adoption, Review and Modification of the Consolidated Operating Budget.
Presentation by David Richardson, Treasurer/Comptroller.
5. Discussion regarding the status of the FY 2013 appropriation process.
Carol Bergman, Director, Government Relations and Public Affairs.
6. Consider and act on recommendation to the Board of Directors for FY 2014 Budget Request.
Presentation by Carol Bergman, Director, Government Relations and Public Affairs.
Comments by David Richardson, Treasurer/Comptroller.
7. Public comment.
8. Consider and act on other business.
9. Consider and act on adjournment of meeting.
1. Approval of Agenda.
2. Approval of Minutes of the Committee's meeting of April 16,2012.
3. Panel Presentation on diversification and expansion of revenue sources.
• Moderator—Meredith McBurney, Resource Development Consultant for ABA Resource Center for Access to Justice Initiatives and Management Information Exchange.
• Steven Gottlieb, Executive Director, Atlanta Legal Aid Society.
• Daniel Glazier, Executive Director, Legal Services of Eastern Missouri.
• Jennifer Bentley, Manager of Outreach and Development, Legal Services of South Central Michigan.
• Deierdre Weir, Executive Director, Legal Aid and Defender Association.
4. Public comment.
5. Consider and act on other business.
6. Consider and act on motion to adjourn the meeting.
1. Approval of agenda.
2. Approval of minutes of the Committee's meeting of June 18, 2012.
3. Consider and act on proposed revisions to the Committee's charter.
4. Consider and act on possible revisions to the Corporation's Continuation of Operations Plan (“COOP”).
5. Consider and act on rulemaking on grant termination procedures, enforcement mechanisms, and suspension procedures.
Mark Freedman, Senior Assistant General Counsel.
Matthew Glover, Associate Counsel to the Inspector General.
Public comment.
6. Public comment.
7. Consider and act on other business.
8. Consider and act on adjournment of meeting.
1. Pledge of Allegiance.
2. Approval of agenda.
3. Approval of Minutes of the Board's meeting of May 21, 2012.
4. Presentation of the Report of the Pro Bono Task Force.
5. Consider and act on the draft Strategic Plan.
6. Chairman's Report.
7. Members' Reports.
8. President's Report.
9. Inspector General's Report.
10. Consider and act on the report of the Promotion and Provision for the Delivery of Legal Services Committee.
11. Consider and act on the report of the Finance Committee.
12. Consider and act on the report of the Audit Committee.
13. Consider and act on the report of the Operations and Regulations Committee.
14. Consider and act on the report of the Governance and Performance Review Committee.
15. Consider and act on the report of the Institutional Advancement Committee.
16. Consider and act on delegation of authority to the LSC Board Chairman to appoint non-directors to serve on LSC Board committees.
17. Consider and act on a resolution acknowledging the recent passing of former LSC Board member Thomas A. Fuentes.
18. Public comment.
19. Consider and act on other business.
20. Consider and act on whether to authorize an executive session of the Board to address items listed below, under Closed Session.
21. Approval of minutes of the Board's closed session meeting of April 16, 2012.
22. Briefing by Management.
23. Briefing by the Inspector General.
24. Consider and act on General Counsel's report on potential and pending litigation involving LSC.
25. Consider and act on motion to adjourn meeting.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295-1500. Questions may be sent by electronic mail to
Non-confidential meeting materials will be made available in electronic format at least 24 hours in advance of the meeting on the LSC Web site, at
LSC complies with the American's with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities. Individuals who need other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295-1500 or
10:00 a.m., Tuesday, July 24, 2012.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
Open.
1. Board Briefing—Interagency Proposal, Truth in Lending Act.
2. Interest Rate Ceiling Determination.
3. NCUA's Rules and Regulations, “Troubled Condition” Definition.
4. NCUA's Rules and Regulations, Access to Emergency Liquidity.
5. 2012 Temporary Corporate Credit Union Stabilization Fund Assessment.
6. Quarterly Insurance Fund Report.
7. Reprogramming of NCUA's Operating Budget for 2012.
Mary Rupp, Secretary of the Board, Telephone: 703-518-6304.
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nadene G. Kennedy, Permit Office, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
On June 1, 2012, the National Science Foundation published a notice in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add Parcel Select Contract 3 to the competitive product list. This notice addresses procedural steps associated with these filings.
Submit comments electronically via the Commission's
Stephen L. Sharfman, General Counsel at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
• Attachment A—a redacted copy of Governors' Decision No. 11-6, authorizing the new product;
• Attachment B—a redacted copy of the contract;
• Attachment C—proposed changes to the Mail Classification Schedule competitive product list with the addition underlined;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and related financial information under seal.
In the Statement of Supporting Justification, Karen F. Key, Manager, Shipping Products, asserts that the contract will cover its attributable costs, make a positive contribution to covering institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the related contract, under seal.
The Commission establishes Docket Nos. MC2012-32 and CP2012-40 to consider the Request pertaining to the proposed Parcel Select Contract 3 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than July 23, 2012. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Natalie Rea Ward to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2012-32 and CP2012-40 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Natalie Rea Ward is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than July 23, 2012.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 12(d)(1)(A) and (B) of the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (2) of the Act, and under section 6(c) of the Act for an exemption from rule 12d1-2(a) under the Act.
The requested order would (a) permit certain registered management investment companies and unit investment trusts to acquire shares of certain registered open-end management investment companies that are outside the same group of investment companies as the acquiring investment companies, and (b) permit funds of funds relying on rule 12d1-2 under the Act to invest in certain financial instruments.
Advantage Funds, Inc., BNY Mellon Funds Trust, Dreyfus Appreciation Fund, Inc., Dreyfus BASIC U.S. Mortgage Securities Fund, Dreyfus Bond Funds, Inc., Dreyfus Funds, Inc., Dreyfus Growth and Income Fund, Inc., Dreyfus Intermediate Municipal Bond Fund, Inc., Dreyfus Index Funds, Inc., Dreyfus International Funds, Inc., Dreyfus Investment Funds, Dreyfus Investment Grade Funds, Inc., Dreyfus LifeTime Portfolios, Inc., Dreyfus Manager Funds I, Dreyfus Manager Funds II, Dreyfus Midcap Index Fund,
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on August 6, 2012, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants, c/o The Dreyfus Corporation, 200 Park Avenue, New York, New York 10166.
Emerson S. Davis, Senior Counsel, at (202) 551-6868, or Daniele Marchesani, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Companies are open-end management investment companies registered under the Act and organized as either a Massachusetts business trust or a Maryland corporation. Each Company or Company's separate series pursues distinct investment objectives and strategies. The Adviser, a New York corporation, is registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”) and serves as investment adviser to the Companies.
2. Applicants request an exemption to permit registered management investment companies and unit investments trusts that operate as a “fund of funds” and that are not part of the same “group of investment companies,” within the meaning of section 12(d)(1)(G)(ii) of the Act, as the Companies (“Unrelated Funds of Funds”) to acquire shares of the Companies or separate series of the Companies that do not operate as “funds of funds” (“Underlying Funds”)
3. Each Unrelated Fund of Funds will be advised by or, in the case of a unit investment company, sponsored by, an investment adviser, within the meaning of section 2(a)(20)(A) of the Act, that is registered as an investment adviser under the Advisers Act (an “Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor, respectively”). An Unrelated Fund of Funds or its Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor may contract with an investment adviser, including the Adviser or its affiliates, that meets the definition of section 2(a)(20)(B) of the Act (an “Unrelated Fund of Funds Subadviser”). Applicants state that Unrelated Funds of Funds will be interested in using the Underlying Funds as part of their overall investment strategy.
4. Applicants also request an exemption to the extent necessary to permit any existing or future funds that operate as “funds of funds” and that are part of the same “group of investment companies,” within the meaning of section 12(d)(1)(G)(ii) of the Act, as the Companies (“Related Funds of Funds”) and which invest in other Underlying Funds in reliance on section 12(d)(1)(G) of the Act, and which are also eligible to invest in securities (as defined in section 2(a)(36) of the Act) in reliance on rule 12d1-2 under the Act, also to invest, consistent with their investment objective, policies, strategies and limitations, in financial instruments that may not be securities within the meaning of section 2(a)(36) of the Act (“Other Investments”).
5. Consistent with its fiduciary obligations under the Act, each Related Fund of Fund's board of trustees will review the advisory fees charged by the Related Fund of Fund's investment adviser to ensure that they are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to the advisory agreement of any investment company in which the Related Fund of Funds may invest.
1. Section 12(d)(1)(A) of the Act, in relevant part, prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, and any broker or dealer from selling the investment company's shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants is seeking an exemption under section 12(d)(1)(J) of the Act to permit Unrelated Funds of Funds to acquire shares of the Underlying Funds in excess of the limits in section 12(d)(1)(A), and an Underlying Fund, any principal underwriter for an Underlying Fund, and any Broker to sell shares of an Underlying Fund to an Unrelated Fund of Funds in excess of the limits in section 12(d)(1)(B) of the Act.
3. Applicants state that the terms and conditions of the application appropriately address the concerns underlying sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
4. Applicants believe that neither an Unrelated Fund of Funds nor an Unrelated Fund of Funds Affiliate would be able to exert undue influence over the Underlying Funds.
5. Applicants do not believe that the proposed fund of funds arrangement will involve excessive layering of fees. The board of directors or trustees of each Unrelated Fund of Funds, including a majority of the directors or trustees who are not “interested persons” (within the meaning of section 2(a)(19) of the Act) (“Independent Board Members”), will find that the advisory fees charged under such advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Underlying Fund in which the Unrelated Fund of Funds may invest. In addition, an Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor will waive fees otherwise payable to it by the Unrelated Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Underlying Fund under rule 12b-1 under the Act) received from an Underlying Fund by the Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor or an affiliated person of the Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor, other than any advisory fees paid to the Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor or affiliated person of the Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor, by an Underlying Fund, in connection with the investment by the Unrelated Fund of Funds in the Underlying Fund. Applicants also state that with respect to registered separate accounts that invest in an Unrelated Fund of Funds, no sales load will be charged at the Unrelated Fund of Funds level or at the Underlying Fund level.
6. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Underlying Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except in certain circumstances identified in condition 12 below. Applicants also represent that to ensure that Unrelated Funds of Funds comply with the terms and conditions of the requested exemption from section 12(d)(1)(A) of the Act, an Unrelated Fund of Funds must enter into a participation agreement between a Company, on behalf of the relevant Underlying Fund, and the Unrelated Funds of Funds (“Participation Agreement”) before investing in an Underlying Fund in excess of the limits in section 12(d)(1)(A). The Participation Agreement will require the Unrelated Fund of Funds to adhere to the terms and conditions of the requested order. The Participation Agreement will include an acknowledgment from the Unrelated Fund of Funds that it may rely on the requested order only to invest in the Underlying Funds and not in any other registered investment company or series thereof.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person.
2. Applicants seek relief from section 17(a) to permit an Underlying Fund that is an affiliated person of an Unrelated Fund of Funds because the Unrelated Fund of Funds holds 5% or more of the Underlying Fund's shares to sell its shares to and redeem its shares from an Unrelated Fund of Funds. Applicants state that any proposed transactions directly between an Underlying Fund and an Unrelated Fund of Funds will be consistent with the policies of each Underlying Fund and Unrelated Fund of Funds. The Participation Agreement will require any Unrelated Fund of Funds that purchases shares from an Underlying Fund to represent that the purchase of shares from the Underlying Fund by a Unrelated Fund of Funds will be accomplished in compliance with the investment restrictions of the Unrelated Fund of Funds and will be consistent with the investment policies set forth in the Unrelated Fund of Funds' registration statement.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (i) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (ii) the proposed transaction is consistent with the policies of each registered investment company involved; and (iii) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants submit that the proposed transactions satisfy the standards for relief under sections 17(b) and 6(c) of the Act.
1. Section 12(d)(1)(G) of the Act provides that section 12(d)(1) will not apply to securities of an acquired company purchased by an acquiring company if: (i) The acquiring company and acquired company are part of the same group of investment companies; (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities, and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the Exchange Act or by the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end management investment companies or registered unit investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
2. Rule 12d1-2 under the Act permits a registered open-end investment company or a registered unit investment trust that relies on section 12(d)(1)(G) of the Act to acquire, in addition to securities issued by another registered investment company in the same group of investment companies, government securities, and short-term paper: (1) Securities issued by an investment company that is not in the same group of investment companies, when the acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (2) securities (other than securities issued by an investment company); and (3) securities issued by a money market fund, when the investment is in reliance on rule 12d1-1 under the Act. For the purposes of rule 12d1-2, “securities” means any security as defined in section 2(a)(36) of the Act.
3. Applicants state that the proposed arrangement would comply with the provisions of rule 12d1-2 under the Act, but for the fact that the Related Funds of Funds may invest a portion of their assets in Other Investments. Applicants request an order under section 6(c) of the Act for an exemption from rule 12d1-2(a) to allow the Related Funds of Funds to invest in Other Investments. Applicants assert that permitting the Related Funds of Funds to invest in Other Investments as described in the application would not raise any of the concerns that the requirements of section 12(d)(1) were designed to address.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The members of an Unrelated Fund of Funds Advisory Group will not control (individually or in the aggregate) an Underlying Fund within the meaning of section 2(a)(9) of the Act. The members of an Unrelated Fund of Funds Subadvisory Group will not control (individually or in the aggregate) an Underlying Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Underlying Fund, the Unrelated Fund of Funds Advisory Group or the Unrelated Fund of Funds Subadvisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of an Underlying Fund, it (except for any member of the Unrelated Fund of Funds Advisory Group or Unrelated Fund of Funds Subadvisory Group that is a separate account funding variable insurance contract) will vote its shares of the Underlying Fund in the same proportion as the vote of all other holders of the Underlying Fund's shares. This condition does not apply to the Unrelated Fund of Funds Subadvisory Group with respect to an Underlying Fund for which the Unrelated Fund of Funds Subadvisers or a person controlling, controlled by, or under common control with the Unrelated Fund of Funds Subadvisers acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act. A registered separate account funding variable insurance contracts will seek voting instructions from its contract holders and will vote its shares in accordance with the instructions received and will vote those shares for which no instructions were received in the same proportion as the shares for which instructions were received. An unregistered separate account funding variable insurance contracts will either (i) vote its shares of the Underlying Fund in the same proportion as the vote of all other holders of the Underlying Fund's shares; or (ii) seek voting instructions from its contract holders and vote its shares in accordance with the instructions received and vote those shares for which no instructions were received in the same proportion as the shares for which instructions were received.
2. No Unrelated Fund of Funds or Unrelated Fund of Funds Affiliate will cause any existing or potential investment by the Unrelated Fund of Funds in shares of an Underlying Fund to influence the terms of any services or transactions between the Unrelated Fund of Funds or an Unrelated Fund of Funds Affiliate and the Underlying Fund or an Underlying Fund Affiliate.
3. The board of directors or trustees of an Unrelated Fund of Funds, including a majority of the Independent Board Members, will adopt procedures reasonably designed to assure that the Unrelated Fund of Funds Adviser or Unrelated Fund Funds Sponsor and any Unrelated Fund of Funds Subadviser(s) are conducting the investment program of the Unrelated Fund of Funds without taking into account any consideration received by the Unrelated Fund of Funds or an Unrelated Fund of Funds Affiliate from an Underlying Fund or an
4. Once an investment by an Unrelated Fund of Funds in the securities of an Underlying Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the board of directors or trustees of the Underlying Fund (the “Board”), including a majority of the Independent Board Members, will determine that any consideration paid by the Underlying Fund to an Unrelated Fund of Funds or an Unrelated Fund of Funds Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Underlying Fund; (b) is within the range of consideration that the Underlying Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (c) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Underlying Fund and its investment adviser(s) or any person controlling, controlled by, or under common control with such investment adviser(s).
5. No Unrelated Fund of Funds or Unrelated Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Underlying Fund) will cause an Underlying Fund to purchase a security in any Affiliated Underwriting.
6. The Board, including a majority of the Independent Board Members, will adopt procedures reasonably designed to monitor any purchases of securities by the Underlying Fund in an Affiliated Underwriting once an investment by an Unrelated Fund of Funds in the securities of the Underlying Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Unrelated Fund of Funds in the Underlying Fund. The Board shall consider, among other things, (i) whether the purchases were consistent with the investment objectives and policies of the Underlying Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Underlying Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board shall take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interests of shareholders.
7. Each Underlying Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by an Unrelated Fund of Funds in the securities of an Underlying Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the Board's determinations were made.
8. Before investing in shares of an Underlying Fund in excess of the limits in section 12(d)(1)(A), the Unrelated Fund of Funds and Underlying Fund will execute a Participation Agreement stating, without limitation, that their boards of directors or trustees and their investment advisers and/or sponsors understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of an Underlying Fund in excess of the limit in section 12(d)(1)(A)(i), an Unrelated Fund of Funds will notify the Underlying Fund of the investment. At such time, the Unrelated Fund of Funds will also transmit to the Underlying Fund a list of the names of each Unrelated Fund of Funds Affiliate and Underwriting Affiliate. The Unrelated Fund of Funds will notify the Underlying Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Underlying Fund and the Unrelated Fund of Funds will maintain and preserve a copy of the order, the Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
9. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Unrelated Fund of Funds, including a majority of the Independent Board Members, will find that the advisory fees charged under such advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Underlying Fund in which the Unrelated Fund of Funds may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Unrelated Fund of Funds.
10. An Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor will waive fees otherwise payable to it by the Unrelated Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Underlying Fund under rule 12b-1 under the Act) received from an Underlying Fund by the Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor, or an affiliated person of the Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor, other than any advisory fees paid to the Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor or affiliated persons of the Unrelated Fund of Funds Adviser or Unrelated Fund of Funds Sponsor by the Underlying Fund, in connection with the investment by the Unrelated Fund of Funds in the Underlying Fund. Any Unrelated Fund of Funds Subadvisers will waive fees otherwise payable to the Unrelated Fund of Funds Subadvisers, directly or indirectly, by the Unrelated Fund of Funds in an amount at least equal to any compensation received from any Underlying Fund by the Unrelated Fund of Funds Subadvisers, or an affiliated person of the Unrelated Fund of Funds Subadvisers, other than any advisory fees paid to the Unrelated Fund of Funds Subadvisers or its affiliated person by the Underlying Fund, in connection with the investment by the Unrelated Fund of Funds in the Underlying Fund made at the direction of the Unrelated Fund of Funds Subadvisers. In the event that the Unrelated Fund of Funds Subadvisers waives fees, the benefit of the waiver will be passed through to the Unrelated Fund of Funds.
11. With respect to registered separate accounts that invest in an Unrelated Fund of Funds, no sales load will be charged at the Unrelated Fund of Funds level or at the Underlying Fund level.
12. No Underlying Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent that the Underlying Fund: (a) acquires such securities in compliance with section 12(d)(1)(E) of the Act; (b) receives securities of another investment company as a dividend or as a result of a plan of reorganization of a company (other than a plan devised for the purpose of evading section 12(d)(1) of the Act); or (c) acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting such Underlying Fund to engage in interfund borrowing and lending transactions; or (d) acquires securities of one or more investment companies for short-term cash management purposes.
13. The Applicants will comply with all provisions of rule 12d1-2 under the Act, except for paragraph (a)(2), to the extent that it restricts any Related Fund of Funds from investing in Other Investments as described in the application.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Monday, July 16, 2012 at 11:00 a.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (4), and (8) and 17 CFR 200.402(a)(3), (4), and (8) permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Aguilar, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matters of the Closed Meeting scheduled for Monday, July 16, 2012 will be examinations of financial institutions and a regulatory matter regarding a financial institution.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes a rule change with respect to the amendment of the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”). The text of the proposed rule change is available at the Exchange's Web site, at the Exchange's principal office, and at the Commission's Public Reference Room.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ OMX is proposing amendments to provisions of its by-laws pertaining to the composition of the Management Compensation Committee of the NASDAQ OMX Board of Directors. Specifically, NASDAQ OMX is amending the compositional requirements of its Management Compensation Committee in Section 4.13 to replace a requirement that the committee be composed of a majority of Non-Industry Directors
A “Non-Industry Director” means a Director (excluding the Staff Directors) who is (1) a Public Director; (2) an officer, director, or employee of an issuer of securities listed on a national securities exchange operated by any subsidiary of NASDAQ OMX that is a self-regulatory organization; or (3) any other individual who would not be an Industry Director.
A “Public Director” means a Director who has no material business relationship with a broker or dealer, NASDAQ OMX or its affiliates, or FINRA.
NASDAQ OMX and the Exchange believe that the change will provide greater flexibility to NASDAQ OMX with regard to populating a committee that includes Directors with relevant expertise and that is not excessively large in relation to the size of the full Board of Directors, while continuing to ensure that Directors associated with Exchange members and other broker-dealers do not exert disproportionate influence of the governance of NASDAQ OMX. As required by NASDAQ Stock Market Rule 5605(d), the committee would continue at all times to be composed solely of Directors who are independent within the meaning of that rule.
BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
BX believes that the change will provide greater flexibility to NASDAQ OMX with regard to populating a committee that includes Directors with relevant expertise and that is not excessively large in relation to the size of the full Board of Directors, while continuing to ensure that Directors associated with Exchange members and other broker-dealers do not exert disproportionate influence of the governance of NASDAQ OMX.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change; or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes a rule change with respect to the amendment of the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”). The text of the proposed rule change is available at the Exchange's Web site, at the Exchange's principal office, and at the Commission's Public Reference Room.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ OMX is proposing amendments to provisions of its by-laws pertaining to the composition of the Management Compensation Committee of the NASDAQ OMX Board of Directors. Specifically, NASDAQ OMX is amending the compositional requirements of its Management Compensation Committee in Section 4.13 to replace a requirement that the committee be composed of a majority of Non-Industry Directors
A “Non-Industry Director” means a Director (excluding the Staff Directors) who is (1) A Public Director; (2) an officer, director, or employee of an issuer of securities listed on a national securities exchange operated by any subsidiary of NASDAQ OMX that is a self-regulatory organization; or (3) any other individual who would not be an Industry Director.
A “Public Director” means a Director who has no material business relationship with a broker or dealer, NASDAQ OMX or its affiliates, or FINRA.
NASDAQ OMX and the Exchange believe that the change will provide greater flexibility to NASDAQ OMX with regard to populating a committee that includes Directors with relevant expertise and that is not excessively large in relation to the size of the full Board of Directors, while continuing to ensure that Directors associated with Exchange members and other broker-dealers do not exert disproportionate influence of the governance of NASDAQ OMX. As required by NASDAQ Stock Market Rule 5605(d), the committee would continue at all times to be composed solely of Directors who are independent within the meaning of that rule.
Phlx believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Phlx believes that the change will provide greater flexibility to NASDAQ OMX with regard to populating a committee that includes Directors with relevant expertise and that is not excessively large in relation to the size of the full Board of Directors, while continuing to ensure that Directors associated with Exchange members and other broker-dealers do not exert disproportionate influence of the governance of NASDAQ OMX.
The Exchange does not believe that the proposed rule change will impose any burden on competition not
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change; or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On October 31, 2011, the New York Stock Exchange LLC (“NYSE”) and NYSE Amex LLC (“NYSE Amex”) (collectively, the “SROs”) each filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On February 15, 2012, the Commission instituted proceedings to determine whether to disapprove the proposed rule changes.
The SRO Proposals seek to amend the SROs' rules in several ways. First, the
The SROs propose to codify certain trading floor functions formerly performed by specialists that are now performed by DMMs, and were described in each SRO's respective Floor Official Manual.
The proposed rules would specify four categories of trading floor functions that DMMs could perform: (1) Maintaining order among Floor brokers manually trading at the DMM's assigned panel;
Each SRO proposes to make Exchange systems available to a DMM at the post that display the following types of information about securities in which the DMM is registered: (A) Aggregated information about buying and selling interest;
The SROs also propose to make conforming amendments to their rules to reflect the additional order information that would be available to DMMs through Exchange systems, and to specify what information about e-Quotes is available to the DMM. Specifically, the SROs propose to revise NYSE Rule 70 and NYSE Amex Rule 70 governing e-Quotes to reflect that disaggregated order information would be available to the DMM except as elected otherwise. The SROs would allow a Floor broker to enter e-Quotes with reserve interest (“Reserve e-Quote”) with or without a displayable portion.
A Reserve e-Quote with a displayable portion would participate in manual and automatic executions. Order information at each price point, including the reserve portion, would be included in the aggregate interest available to the DMM. Order information at each price point would be available to the DMM on a disaggregated basis as well. If the Floor broker chooses to exclude the Reserve e-Quote with a displayable portion from the DMM, then the DMM would have access to the entire portion on an aggregated basis but would not have access to any of that interest on a disaggregated basis.
A Reserve e-Quote with an undisplayable portion would also participate in manual and automatic executions. Like the Reserve e-Quote with a displayable portion, order information at each price point would be included in the aggregate interest available to the DMM. Again, like the Reserve e-Quote with a displayable portion, order information at each price point would be available to the DMM on a disaggregated basis as well. If the Floor broker chooses to exclude the Reserve e-Quote with an undisplayable portion from the DMM, however, then the DMM would not have access to such interest on either an aggregated basis or a disaggregated basis. Such interest would not participate in manual executions.
In addition, the SROs propose to delete rules which currently prohibit DMMs from using the Display Book system to access information about e-Quotes excluded from the aggregated agency interest and Minimum Display Reserve Order information, other than for the purpose of effecting transactions that are reasonably imminent where such Floor broker agency and Minimum Display Reserve Order interest information is necessary to effect such transaction.
The SROs also propose to modify the manner under which DMMs would be permitted to provide market information to Floor brokers and visitors on the trading floor. Specifically, the proposed
Because the proposed rule expands on and incorporates the current SRO rules regarding disclosure of order information by DMMs, the SROs are proposing to delete these rules.
The proposed rules would permit a DMM to provide market information to a Floor broker in response to a specific request by the Floor broker to the DMM at the post, rather than specifying that the information must be provided “in response to an inquiry from a member conducting a market probe in the normal course of business,” as currently provided in the SRO rules. Under the proposed rule change, Floor brokers would not have access to Exchange systems that provide disaggregated order information, and Floor brokers would only be able to access such market information through a direct manual interaction with a DMM at the post.
In the Order Instituting Proceedings, the Commission expressed concern about the consistency of the proposals with Section 6(b)(5) of the Act, including whether they would permit unfair discrimination, promote just and equitable principles of trade, and protect investors and the public interest.
The Commission received five comment letters in support of the proposed rule changes,
Commenters did not believe the proposals were unfairly discriminatory because, in their view, DMMs would be obligated to provide disaggregated order information to Floor brokers in a non-discriminatory fashion, and Floor brokers would be obligated to do the same for their customers.
Commenters also emphasized that market participants that do not wish to allow their disaggregated order information to be provided to DMMs and Floor brokers can use undisplayed orders or place orders on a competing exchange.
In their response, the SROs, among other things, emphasized that “[t]he purpose of the Proposals is to help DMMs facilitate large orders on the Trading Floor if an investor wishes to utilize the resources of a Floor broker,”
At the same time, the SROs take the position that “any informational advantage conveyed is extremely slight.”
In addition, the SROs believe that existing restrictions on trading by DMMs and Floor brokers address concerns associated with any potential informational advantage.
Under Section 19(b)(2)(C) of the Act, the Commission shall approve a proposed rule change of a self-regulatory organization if the Commission finds that such proposed rule change is consistent with the requirements of the Act, and the rules and regulations thereunder that are applicable to such organization.
After careful consideration, the Commission does not find that the proposed rule changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Commission does not find that the proposals are consistent with Section 6(b)(5) of the Act,
Specifically, the SROs propose to provide their Floor members—DMMs and Floor brokers—special access to information about individual orders on the Exchanges. The proposals would permit DMMs to access information about the price and size of individual orders on the Exchange books, as well as Floor broker e-Quotes, along with the identity of the broker-dealer that entered the order and the clearing firm. DMMs also would be provided post-trade information with respect to Exchange orders that, similarly, includes the identity of the broker-dealer that entered the order and the clearing firm.
In the Order Instituting Proceedings, the Commission expressed concern that, while the proposals may improve the ability of DMMs and Floor brokers to trade on the SROs, the proposals also would provide DMMs and Floor brokers access to potentially valuable information about Exchange orders generated both on and off the Floor that is not made available to other Exchange members or market participants, unless it is acquired through a Floor broker. The Commission also noted that the SROs were not proposing to require any additional obligations from DMMs and Floor brokers in exchange for the additional order information, and had not clearly explained how the proposals would materially improve the quality of the SROs' markets. In response, commenters and the SROs made general arguments that the proposals would facilitate the ability of DMMs and Floor brokers to perform important trading floor functions, such as bringing together market participants seeking to trade large orders or assisting Floor members in the event they experience a technical failure. Neither the SROs nor the commenters explained, however, how the particular information proposed to be provided—disaggregated information about public orders on the Exchange books as well as Floor broker
Although the SROs and commenters have taken the position that the disaggregated order information proposed to be provided would afford only a slight benefit to Floor members, given that it must be accessed manually, they have not clearly explained why this is the case, particularly with respect to less liquid securities where order information is less likely to become rapidly stale. In addition, neither the SROs nor the commenters have articulated a rationale for providing disaggregated order information—particularly that relating to public orders on the Exchange books—exclusively to DMMs and Floor brokers and, by extension, exclusively to Floor broker customers, and not to all Exchange members and customers. While the SROs and commenters believe that the proposals are not unfairly discriminatory because DMMs must provide the information to Floor brokers in a non-discriminatory fashion, and Floor brokers must do the same with respect to their customers, they do not explain why it is not unfairly discriminatory to offer this information only through Floor brokers and not through other Exchange members.
The SROs and commenters point out that customers can prevent their disaggregated order information from being accessed by DMMs and Floor brokers by submitting a non-displayable order or, with respect to Floor broker e-Quotes, instructing that the information be withheld from the DMM. They also note that Floor brokers are not permitted to trade on a proprietary basis, and that DMMs are subject to restrictions that limit their ability to benefit directly from their receipt of disaggregated order information by trading proprietarily. Although these are factors that may mitigate potential harm that may result from the proposals, they do not in themselves offer an affirmative justification as to why the specific proposals under consideration would not permit unfair discrimination, or would promote just and equitable principles of trade and protect investors and the public interest, or would otherwise be consistent with the Act. Similarly, while the SROs and commenters note that specialists historically were permitted to provide disaggregated order information to Floor brokers prior to the Exchanges' conversion to a more automated “Hybrid Market,” they do not articulate how this former practice is relevant to whether the proposed provision of disaggregated order information to Floor members in the context of the current market models of the SROs is consistent with the Act.
When the Commission is engaged in rulemaking or the review of a rule filed by a self-regulatory organization, and is required to consider or determine whether an action is necessary or appropriate in the public interest, the Commission shall also consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.
As noted above, Rule 700(b)(3) of the Commission's Rules of Practice states that “[t]he burden to demonstrate that a proposed rule change is consistent with the Exchange Act and the rules and regulations issued thereunder * * * is on the self-regulatory organization that proposed the rule change” and that a “mere assertion that the proposed rule change is consistent with those requirements * * * is not sufficient.”
For the foregoing reasons, the Commission does not find that the proposed rule changes are consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange, and, in particular, with Section 6(b)(5) of the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to establish a fee for television distribution of the NYSE Arca Trades data product. 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 establish a fee for television distribution of the NYSE Arca Trades data product.
In 2009, the Commission approved the NYSE Arca Trades data product and its fees.
In 2010, the Commission approved changes to the fees for NYSE Arca Trades that modified the professional subscriber fee to consolidate the per-display device fee for NYSE Arca Last Sale Information relating to Network A and Network B Eligible Securities and securities listed on NASDAQ and provide an alternative to the per-device fee based on the number of “Subscriber Entitlements,” rather the basis of the number of devices.
The Exchange proposes to add a new fee category for NYSE Arca Trades to provide television broadcasters
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Securities Exchange Act of 1934 (the “Act”)
The existence of alternatives to the NYSE Arca Trades data product, including real-time consolidated data, free delayed consolidated data, and proprietary last sale data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect such alternatives. The recent decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system `evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed' and that the SEC wield its regulatory power `in those situations where competition may not be sufficient,' such as in the creation of a `consolidated transactional reporting system.'
As explained below in the Exchange's Statement on Burden on Competition, the Exchange believes that there is substantial evidence of competition in the marketplace for data and that the Commission can rely upon such evidence in concluding that the fees established in this filing are the product of competition and therefore satisfy the relevant statutory standards.
As the
For these reasons, the Exchange believes that the proposed fee 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 necessary or appropriate in furtherance of the purposes of the Act. An exchange's ability to price its datafeed products is constrained by (1) competition among exchanges and other trading platforms that compete with one another in a variety of dimensions, (2) the existence of inexpensive real-time consolidated data and free delayed consolidated data, and (3) the inherent contestability of the market for proprietary last sale data.
The market for proprietary last sale data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
It is common for broker-dealers to further exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. As a recent Commission Concept Release noted, the “current market structure can be described as dispersed and complex” with “trading volume * * * dispersed among many highly automated trading centers that compete for order flow in the same stocks” and “trading centers offer[ing] a wide range of services that are designed to attract different types of market participants with varying trading needs.”
Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products and therefore constrain markets from overpricing proprietary market data. The U.S. Department of Justice recently acknowledged the aggressive competition among exchanges. In announcing the abandoned bid for NYSE Euronext by NASDAQ OMX Group Inc. and IntercontinentalExchange Inc., Assistant Attorney General Christine Varney stated that exchanges “compete head to head to offer real-time equity data products. These data products include the best bid and offer of every exchange and information on each equity trade, including the last sale.”
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality, and price and distribution of its data products. Without trade executions, exchange data products cannot exist.
Further, data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions. The Exchange notes in that respect that making the NYSE Arca Trades service available on television at a more economical and easier to administer fee would encourage more television broadcasters to choose to offer the datafeed and thereby benefit public investors and other market participants who follow market developments through that medium by providing them with a convenient way to track price trends while watching news programs during the course of the trading day, thereby complementing NYSE Arca Trades offerings through other means.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's broker-dealer customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange.
Similarly, in the case of products that are distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to certain end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Thomson Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Similarly, television broadcasters will not elect to display NYSE Arca Trades unless they believe it will help them attract or maintain viewers.
Other market participants have noted that the liquidity provided by the order book, trade execution, core market data, and non-core market data are joint products of a joint platform and have common costs.
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of an exchange's costs to the market data portion of an exchange's joint product. Rather, all of an exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
Competition among trading platforms can be expected to constrain the aggregate return that each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platforms may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge), and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including 12 equities self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities (“TRFs”) compete to attract internalized transaction reports.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including but not limited to the Exchange, NYSE, NYSE Amex, NASDAQ OMX, BATS, and Direct Edge.
The fact that proprietary data from ATSs, BDs, and vendors can bypass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the amount of data available via proprietary products is greater in size than the actual number of orders and transaction reports that exist in the marketplace. Because market data users can thus find suitable substitutes for most proprietary market data products (in this case both a CTA product and a NASDAQ proprietary product are direct alternatives), a market that overprices its market data products stands a high risk that users may substitute another source of market information for its own.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20- minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data, by highlighting the optional nature of proprietary products. The Exchange notes that its Broadcast Fee for NYSE Arca Trades is substantially less than the fee for a similar CTA product.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TrackECN, BATS Trading and Direct Edge. Today, BATS and Direct Edge provide data at no charge on their Web sites in order to attract more order flow, and use market data revenue rebates from resulting additional executions to maintain low execution charges for their users.
In establishing the Broadcast Fee for the NYSE Arca Trades Service, the Exchange considered the competitiveness of the market for data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of numerous alternatives to the Exchange's product, including real-time consolidated data, free delayed consolidated data, and proprietary data from other sources, ensures that the
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.
All submissions should refer to File Number SR-NYSEArca-2012-73. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 14, 2012, NYSE Arca, Inc. (“NYSE Arca” 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 Euronext intends to merge Archipelago Holdings with and into NYSE Group, effective following approval of the proposed rule change.
The Exchange has submitted its proposal to (i) Amend and restate the Amended and Restated Certificate of Incorporation of NYSE Arca Holdings, Inc. (the “NYSE Arca Holdings Certificate”), (ii) amend and restate the NYSE Arca Holdings, Inc. Bylaws (“NYSE Arca Holdings Bylaws”) as required by the NYSE Arca Holdings Certificate, (iii) amend the rules of NYSE Arca and NYSE Arca Equities, Inc., (iv) delete in its entirety the Amended and Restated Certificate of Archipelago Holdings (“Archipelago
Section 19(b) of the Act and Rule 19b-4 thereunder require a self-regulatory organization (“SRO”) to file proposed rule changes with the Commission. Although NYSE Arca Holdings and Archipelago Holdings are not SROs, the NYSE Arca Holdings Certificate, NYSE Arca Holdings Bylaws, Archipelago Holdings Certificate, and Archipelago Holdings Bylaws, along with other corporate documents, are rules of the Exchange
The NYSE Arca Holdings Certificate imposes certain ownership and voting restrictions on the shares of NYSE Arca Holdings. Specifically, Article 9, Section 1(b)(i) of the NYSE Arca Holdings Certificate provides that for so long as NYSE Arca Holdings directly or indirectly controls the Exchange, no Person either alone or together with its Related Persons,
The Board made these findings as set forth in the Resolution. The Board found, in pertinent part, that (1) The Merger will not impair the ability of the Exchange to carry out its functions and responsibilities as an “exchange” under the Act and the rules promulgated thereunder; (2) the Merger will not impair the ability of the Commission to enforce the Act; (3) neither NYSE Group nor any of its Related Persons is subject to any applicable “statutory disqualification” within the meaning of Section 3(a)(39) of the Act; and (4) neither NYSE Group nor any of its Related Persons is an ETP Holder of NYSE Arca Equities, Inc. or an OTP Firm of the Exchange, except as permitted by Article 9, Section 4 of the NYSE Arca Holdings Certificate.
The Exchange also proposes to amend the NYSE Arca Holdings Bylaws by adding a new Article 11 that sets forth the waiver of the Ownership and Voting Limits, as required by the NYSE Arca Holdings Certificate, solely for purposes of the Merger.
The proposed rule changes reflect the elimination of Archipelago Holdings from the Exchange's ownership structure and delete duplicative or obsolete text. For example, the Exchange proposes to replace references to Archipelago Holdings in Article 9, Section 4 of the NYSE Arca Holdings Certificate with references to NYSE Group. In addition, the Exchange proposes to delete the last sentence of that section, which relates to certain voting and ownership restrictions that were put in place when the Exchange combined with the New York Stock Exchange in 2005 but have been superseded by other requirements.
The Exchange proposes to delete in its entirety the text of the Archipelago Holdings Certificate and the Archipelago Holdings Bylaws because Archipelago Holdings will no longer exist upon consummation of the Merger. Accordingly, these documents will no longer be rules of the Exchange.
The Commission finds that the proposed rule changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities
The proposal would accommodate the merger of Archipelago Holdings, an intermediate holding company, into and with NYSE Group, thereby eliminating Archipelago Holdings from the ownership structure of the Exchange. The Commission notes that the proposed rule changes would otherwise have no substantive impact on other rules of the Exchange, including those concerning the voting and ownership restrictions that currently apply to the Exchange and its affiliates.
In light of these representations and findings, the Commission believes that the proposed rule changes are consistent with the Act and will not impair the ability of the Commission or the Exchange to discharge their respective responsibilities under the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to establish a fee for television distribution of the NYSE MKT Trades data product. 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 establish a fee for television distribution of the NYSE MKT Trades data product.
In 2010, the Commission approved the NYSE MKT Trades data product and its fees.
The Exchange proposes to add a new fee category for NYSE MKT Trades to provide television broadcasters
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the
The existence of alternatives to the NYSE MKT Trades data product, including real-time consolidated data, free delayed consolidated data, and proprietary last sale data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect such alternatives. The recent decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system `evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed' and that the SEC wield its regulatory power `in those situations where competition may not be sufficient,' such as in the creation of a `consolidated transactional reporting system.'
As explained below in the Exchange's Statement on Burden on Competition, the Exchange believes that there is substantial evidence of competition in the marketplace for data and that the Commission can rely upon such evidence in concluding that the fees established in this filing are the product of competition and therefore satisfy the relevant statutory standards.
As the
For these reasons, the Exchange believes that the proposed fee 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 necessary or appropriate in furtherance of the purposes of the Act. An exchange's ability to price its datafeed products is constrained by (1) Competition among exchanges and other trading platforms that compete with one another in a variety of dimensions, (2) the existence of inexpensive real-time consolidated data and free delayed consolidated data, and (3) the inherent contestability of the market for proprietary last sale data.
The market for proprietary last sale data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
It is common for broker-dealers to further exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. As a recent Commission Concept Release noted, the “current market structure can be described as dispersed and complex” with “trading volume * * * dispersed among many highly automated trading centers that compete for order flow in the same stocks” and “trading centers offer[ing] a wide range of services that are designed to attract different types of market participants with varying trading needs.”
Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products and therefore constrain markets from overpricing proprietary market data. The U.S. Department of Justice recently acknowledged the aggressive competition among exchanges. In announcing the abandoned bid for NYSE Euronext by NASDAQ OMX Group Inc. and
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality, and price and distribution of its data products. Without trade executions, exchange data products cannot exist.
Further, data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions. The Exchange notes in that respect that making the NYSE MKT Trades service available on television at a more economical and easier to administer fee would encourage more television broadcasters to choose to offer the datafeed and thereby benefit public investors and other market participants who follow market developments through that medium by providing them with a convenient way to track price trends while watching news programs during the course of the trading day, thereby complementing NYSE MKT Trades offerings through other means.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's broker-dealer customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange.
Similarly, in the case of products that are distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to certain end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Thomson Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Similarly, television broadcasters will not elect to display NYSE MKT Trades unless they believe it will help them attract or maintain viewers.
Other market participants have noted that the liquidity provided by the order book, trade execution, core market data, and non-core market data are joint products of a joint platform and have common costs.
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of an exchange's costs to the market data portion of an exchange's joint product. Rather, all of an exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
Competition among trading platforms can be expected to constrain the aggregate return that each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platforms may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge), and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including 12 equities self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities (“TRFs”) compete to attract internalized transaction reports.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including but not limited to the Exchange, NYSE, NYSE Arca, NASDAQ OMX, BATS, and Direct Edge.
The fact that proprietary data from ATSs, BDs, and vendors can bypass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the amount of data available via proprietary products is greater in size than the actual number of orders and transaction reports that exist in the marketplace. Because market data users can thus find suitable substitutes for most proprietary market data products (in this case both a CTA product and a NASDAQ proprietary product are direct alternatives), a market that overprices its market data products stands a high risk that users may substitute another source of market information for its own.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20- minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data, by highlighting the optional nature of proprietary products. The Exchange notes that its Broadcast Fee for NYSE MKT Trades is substantially less than the fee for a similar CTA product.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TrackECN, BATS Trading and Direct Edge. Today, BATS and Direct Edge provide data at no charge on their Web sites in order to attract more order flow, and use market data revenue rebates from resulting additional executions to maintain low execution charges for its users.
In establishing the Broadcast Fee for the NYSE MKT Trades service, the Exchange considered the competitiveness of the market for data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of numerous alternatives to the Exchange's product, including real-time consolidated data, free delayed consolidated data, and proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives. Accordingly, the Exchange believes that the acceptance of datafeed products in the marketplace demonstrates the consistency of these fees with applicable statutory standards.
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 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 Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to raise from $0.25 per contract to $0.30 per contract the fee for electronic executions by voluntary professionals and professionals in equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes. The Exchange also proposes to raise from $0.45 per contract to $0.60 per contract the fee for electronic executions by broker-dealers in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes. Transactions executed as Qualified Contingent Cross (“QCC”) trades or transactions executed through the Exchange's Automated Improvement Mechanism (“AIM”) when the professional, voluntary professional or broker-dealer is on the Agency/Primary side are excepted from these changes.
These changes are proposed to better reflect the costs associated with supporting a larger number of option classes, option series, and overall transaction volumes that have grown over time which has caused the Exchange to continually invest in software, hardware and personnel, including increased costs for network infrastructure and regulatory systems. The Exchange also believes that increasing the broker-dealer fees for electronic executions by broker-dealers in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes will allow the Exchange to compete more effectively by covering these increased costs while still subsidizing lower customer fees. The amounts of these new fees are in line with those assessed by other exchanges. NASDAQ OMX PHLX LLC (“Phlx”) assesses to broker-dealers a fee of $0.60 per contract for electronic transactions in non-Penny Pilot options on equities, indexes, ETFs, ETNs, and HOLDRs that are multiply-listed.
The proposed changes are to take effect on July 1, 2012.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
Increasing fees for electronic executions by professionals and voluntary professionals is equitable and not unfairly discriminatory and [sic] because of the growth in trading volume that requires the Exchange to continually invest in software and hardware (the increase in professional and voluntary professional trading volume is much greater than any increases in trading volume over the same period of time by any other type of Exchange market participant).
Limiting this increase in professional and voluntary professional fees to electronic trading is equitable and not unfairly discriminatory because electronic trading by professionals and voluntary professionals (greater than 99% of all trading by professionals and voluntary professionals on CBOE is done electronically) has caused the increased investment in software and hardware, and therefore professionals and voluntary professionals who are trading electronically should bear the costs related to that increased investment.
The increased fee for electronic executions by broker-dealers in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes is reasonable because the amount is equal to that assessed by other exchanges,
The Exchange's proposal to increase the fee for electronic executions by broker-dealers in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes is equitable and not unfairly discriminatory because, currently, broker-dealers are assessed higher fees as compared to customers, professionals, voluntary professionals, CBOE Market-Makers/DPMs/e-DPMs, and Clearing Trading Permit Holders (proprietary). Customers are assessed lower fees (and in the case of equity options, no fees) for electronic executions in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes because customer order flow brings liquidity to the market, which, in turn, benefits all market participants. CBOE Market-Makers/DPMs/e-DPMs are assessed lower fees for electronic executions in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes than broker-dealers because Market-Makers/DPMs/e-DPMs have burdensome quoting obligations which broker-dealers do not have. Further, Market-Makers/DPMs/e-DPMs pay a $0.65 per contract Marketing Fee for many non-Penny Pilot transactions, which broker-dealers do not pay.
Professionals and voluntary professionals are assessed lower fees for electronic executions in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes than broker-dealers because broker-dealers, as Trading Permit Holders, have direct access to the Exchange's trade engine, while professionals and voluntary professionals do not. Clearing Trading Permit Holder proprietary orders are assessed lower fees for electronic executions in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes than broker-dealer orders because Clearing Trading Permit Holders have higher capital requirements, must clear trades for other market participants, must be members of the Options Clearing Corporation, and must back up the trades of the market participants that trade through them, obligations that broker-dealers do not have.
Assessing higher fees for broker-dealer transactions in electronic, non-Penny Pilot classes is equitable and not unfairly discriminatory because in non-Penny Pilot classes the spreads are naturally larger than in Penny Pilot classes, and these wider spreads allow for greater profit potential. Limiting this fee increase to electronic transactions is equitable and not unfairly discriminatory because electronic trading requires constant system development and maintenance.
Finally, the Exchange believes that increasing the fee for electronic executions by broker-dealers in non-Penny Pilot equity options and index, ETF, ETN and HOLDRs options (excluding OEX, XEO, SPXW and Volatility Indexes) classes is equitable and not unfairly discriminatory because this will allow the Exchange to compete more effectively by covering the increased costs for software, hardware and personnel, including increased costs for network infrastructure and regulatory systems, while still subsidizing lower customer fees, thereby attracting customer order flow, which benefits all market participants.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Select Symbols
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to make various amendments to Section I of the Pricing Schedule entitled “Fees and Rebates for Adding and Removing Liquidity in Select Symbols.” The Exchange proposes to delete the following Select Symbols from the list of symbols subject to the fees and rebates in Section I: Barrick Gold Corporation (“ABX”), eBay Inc. (“EBAY”), Corning Inc. (“GLW”), Procter & Gamble Co. (“PG”), Potash Corp. of Saskatchewan, Inc. (“POT”), Starbucks Corporation (“SBUX”), SanDisk Corp. (“SNDK”) and United Continental Holdings, Inc. (“UAL”) (collectively “Proposed Deleted Symbols”). These Proposed Deleted Symbols would be subject to the rebates and fees in Section II of the Pricing Schedule entitled “Multiply Listed Options Fees.”
The Exchange proposes to amend the title of Section I, Part A from “Single contra-side” to “Simple Order.” The Exchange believes this amendment better describes the type of orders subject to the fees and rebates in Section I, Part A of the Pricing Schedule. The Exchange also proposes to increase the Specialist
The Exchange proposes to amend the Electronic Firm Fee Discount which
The Exchange also proposes to cap the Qualified Contingent Cross Rebate (“QCC Rebate”) to be paid in a given month at $275,000. The QCC Rebate is applicable to both electronic QCC Orders (“eQCC”)
The Exchange proposes to eliminate the $0.07 per contract rebate for members executing electronically-delivered Customer Orders when that member transacts an average daily volume of 50,000 Customer contracts or greater in a given month. Also, the additional rebate of $0.03 per contract, which is paid to members for electronically-delivered Customer orders that qualified for the $0.07 rebate and added liquidity in a Simple Order in a non-Penny Pilot Option or added or removed liquidity (including auctions) in a Complex Order in a Penny Pilot Option, would be eliminated.
The Exchange proposes to adopt a revised rebate program entitled “Customer Rebate Program” for Multiply Listed Options,
Each tier or “Threshold” would be calculated by totaling all applicable Multiply-Listed electronically-delivered Customer Orders, except electronic Qualified Contingent Cross Orders (eQCC Orders). PIXL orders are currently excluded from the Threshold computations for the rebates that exist today and are being eliminated; this differs for the Customer Rebate Program. The rebates would be paid for all
Category A rebates would be paid to members executing electronically-delivered Customer Simple Orders in Penny Pilot Options, Simple Orders in Non-Penny Pilot Options that removed liquidity and Complex Orders in Non-Penny Pilot Options. Category B rebates would be paid to members executing electronically-delivered Customer Complex Orders in Penny Pilot Options and Category C rebates would be paid to members executing electronically-delivered Customer Simple Orders in Non-Penny Pilot Options that added liquidity. The Threshold would be calculated by totaling Customer volume in Multiply Listed Options that are electronically-delivered, except electronic QCC Orders (eQCC Orders) as defined in Exchange Rule 1080(o) (“Threshold Volume”). Rebates will be paid on Threshold Volume in a given month, excluding electronically-delivered Customer volume associated with PIXL.
Finally, the Exchange is proposing to increase the current fee applicable to Specialists and Market Makers that are on the contra-side of an electronically-delivered and executed Customer order and have reached the Monthly Market Maker Cap. Today, the Exchange assesses Specialists and Market Makers a $0.07 per contract fee, in both Select Symbols and Multiply Listed Symbols (Sections I and II) when contra to an electronically-delivered and executed Customer order and when the Monthly Market Maker Cap is exceeded. PIXL Orders are excluded today. This would remain the same except the Exchange proposes to increase this fee from $0.07 to $0.12 per contract to assist in recouping costs associated with providing a Customer Rebate Program. The Exchange believes that this fee increase would enable the Exchange to offer the Customer Rebate Program as proposed.
The Exchange believes that its proposal to amend its Pricing Schedule is consistent with Section 6(b) of the Act