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Nuclear Regulatory Commission.
Correcting amendments.
The U.S. Nuclear Regulatory Commission (NRC) is correcting the preamble, or statement of considerations (SOC), and codified text in a direct final rule that was published in the
The correction is effective on August 3, 2012 and applicable to June 22, 2012, the date the original rule became effective.
Cindy Bladey, Chief, Rules, Announcements, and Directives Branch, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–492–3667; email:
The NRC published a direct final rule in the
1. On page 26150, in the second column before the table, the first paragraph, the last sentence is corrected to read as follows:
The NRC's licensees can also obtain the current OPM investigation billing rates schedule by contacting the NRC's Personnel Security Branch (PSB), Division of Facilities and Security (DFS), Office of Administration (ADM) by email to
2. On page 26150, in the first column after the table, the first paragraph, the fifth sentence is corrected to read as follows:
Copies of the current NRC access authorization fee can be obtained by contacting the NRC's Personnel Security Branch, Division of Facilities Security, Office of Administration by email to
Hazardous materials—transportation, Investigations, Nuclear materials, Reporting and recordkeeping requirements, Security measures, Special nuclear material.
Classified information, Criminal penalties, Investigations, Reporting and recordkeeping requirements, Security measures.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 11 and 25.
Atomic Energy Act sec. 161 (42 U.S.C. 2201); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note).
Section 11.15(e) also issued under Independent Offices Appropriations Act sec. 501, (31 U.S.C. 9701); Omnibus Reconciliation Act of 1990 sec. 6101 (42 U.S.C. 2214).
The revision reads as follows:
(e) * * *
(3) * * *
Atomic Energy Act secs. 145, 161, 223, 234 (42 U.S.C. 2165, 2201, 2273, 2282); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); E.O. 10865, as amended, 3 CFR, 1959–1963 Comp., p. 398 (50 U.S.C. 401, note); E.O. 12829, 3 CFR, 1993 Comp., p. 570; E.O. 13526, 3 CFR, 2010 Comp., pp. 298–327; E.O. 12968, 3 CFR, 1995 Comp., p. 396.
Section 25.17(f) and Appendix A also issued under 31 U.S.C. 9701; Omnibus Reconciliation Act of 1990 sec. 6101 (42 U.S.C. 2214).
The revision reads as follows:
For the Nuclear Regulatory Commission.
Board of Governors of the Federal Reserve System
Final rule.
The Board has amended the provisions in Regulation II (Debit Card Interchange Fees and Routing) that govern adjustments to debit card interchange transaction fees to make an allowance for fraud-prevention costs incurred by issuers. The amendments permit an issuer to receive or charge an amount of no more than 1 cent per transaction (the same amount currently permitted) in addition to its interchange transaction fee if the issuer develops and implements policies and procedures that are reasonably designed to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions. The amendments set forth fraud-prevention aspects that an issuer's policies and procedures must address and require an issuer to review its policies and procedures at least annually, and update them as necessary in light of their effectiveness, cost-effectiveness, and changes in the types of fraud, methods used to commit fraud, and available fraud-prevention methods. An issuer must notify its payment card networks annually that it complies with the Board's fraud-prevention standards. Finally, the amendments provide that an issuer that is substantially noncompliant with the Board's fraud-prevention standards is ineligible to receive or charge a fraud-prevention adjustment and set forth a timeframe within which an issuer must stop receiving or charging a fraud-prevention adjustment.
This rule is effective October 1, 2012.
Dena L. Milligan, Attorney (202/452–3900), Legal Division, or David Mills, Manager and Economist (202/530–6265), Division of Reserve Bank Operations and Payment Systems; for users of Telecommunications Device for the Deaf (TDD) only, contact (202/263–4869); Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) (Pub. L. 111–203, 124 Stat. 1376 (2010)), was enacted on July 21, 2010. Section 1075 of the Dodd-Frank Act amends the Electronic Fund Transfer Act (“EFTA”) (15 U.S.C. 1693
Section 920 of the EFTA provides that, effective July 21, 2011, the amount of any interchange transaction fee that an issuer receives or charges with respect to an electronic debit transaction must be reasonable and proportional to the cost incurred by the issuer with respect to the transaction.
Under EFTA Section 920(a)(5), the Board may allow for an adjustment to the amount of an interchange transaction fee received or charged by an issuer if (1) such adjustment is reasonably necessary to make allowance for costs incurred by the issuer in preventing fraud in relation to electronic debit card transactions involving that issuer, and (2) the issuer complies with fraud-prevention standards established by the Board. Those standards must be designed to ensure that any adjustment is limited to the reasonably necessary fraud-prevention allowance described in clause (1) above; takes into account any fraud-related reimbursements (including amounts from chargebacks) received from consumers, merchants, or payment card networks in relation to electronic debit transactions involving the issuer; and requires issuers to take effective steps to reduce the occurrence of, and costs from, fraud in relation to electronic debit transactions, including through the development and implementation of cost-effective fraud-prevention technology.
In issuing the standards and prescribing regulations for the adjustment, EFTA Section 920(a)(5) requires the Board to consider (1) the nature, type, and occurrence of fraud in electronic debit transactions; (2) the extent to which the occurrence of fraud depends on whether the authentication in an electronic debit transaction is based on a signature, personal identification number (PIN), or other means; (3) the available and economical means by which fraud on electronic debit transactions may be reduced; (4) the fraud-prevention and data-security costs expended by each party involved in the electronic debit transactions (including consumers, persons who accept debit cards as a form of payment, financial institutions, retailers, and payment card networks); (5) the costs of fraudulent transactions absorbed by each party involved in such transactions (including consumers, persons who accept debit cards as a form of payment, financial institutions, retailers, and payment card networks); (6) the extent to which interchange transaction fees have in the past reduced or increased incentives for parties involved in electronic debit transactions to reduce fraud on such transactions; and (7) such other factors as the Board considers appropriate.
In December 2010, the Board requested comment on two approaches to a framework for the fraud-prevention adjustment to the interchange transaction fee standards: a technology-specific approach and a non-prescriptive approach. The technology-specific approach would allow an issuer to recover some or all of its costs incurred for implementing major innovations that would likely result in substantial reductions in total, industry-wide fraud losses. Under this approach, the Board would identify paradigm-shifting technologies that would reduce debit card fraud in a cost-effective manner. The alternative approach would establish more general standards that an issuer must meet to be eligible to receive an adjustment for fraud-prevention costs.
In general, commenters did not agree about which approach to pursue, but commenters generally opposed the Board's mandating use of specific technologies. Most merchants generally favored a paradigm-shifting approach where issuers would be eligible for a fraud-prevention adjustment only for implementing technologies that reduced fraudulent transactions to a level materially below the level for PIN transactions. By contrast, issuers of all sizes and payment card networks preferred the non-prescriptive approach that would provide issuers with flexibility to tailor their fraud-prevention activities to address most effectively the risks they face and changing fraud patterns. Issuer commenters also opposed a fraud-prevention adjustment only for particular authentication methods, noting that an adjustment favoring a particular authentication method may not provide sufficient incentives to invest in other potentially more effective authentication methods.
In June 2011, the Board adopted a non-prescriptive approach to the fraud-prevention standards, set forth in 12 CFR 235.4, as an interim final rule, issued in connection with its final rule implementing other provisions of EFTA Section 920.
The Board received 42 comments on the interim final rule from debit card issuers, depository institution trade associations, payment card networks, merchants, merchant trade associations, a card-payment processor, technology companies, a member of Congress, individuals, and public interest groups.
The comments received generally focused on the following aspects of the interim final rule: (1) The amount of the adjustment; (2) the non-prescriptive standards in the interim final rule; and (3) the issuer-certification process. These comments are summarized below and are described in more detail in the Section-By-Section Analysis.
By contrast, merchants and their trade associations asserted that the fraud-prevention adjustment amount in the interim final rule is too high. In general, these commenters argued that the fraud-prevention amount in the interim final rule does not take into consideration the fraud-prevention costs of merchants and other parties to electronic debit transactions, for example, by deducting merchants' costs from issuers' costs. Several of these commenters recommended that, in setting the adjustment amount, the Board include only activities that are demonstrably effective and cost-effective, and one commenter recommended that the Board exclude costs of activities to
By contrast, most merchants and merchant trade associations, a public interest group, and a member of Congress opposed the fraud-prevention standards as set forth in the interim final rule because the standards do not include specific metrics to measure the effectiveness and cost-effectiveness of an issuer's fraud-prevention activities. Several of these commenters argued that fraud-prevention standards that lack such a metric are inconsistent with EFTA 920(a)(5). A number of these commenters supported a proposal made by a coalition of merchants. This proposal suggested metrics for measuring the effectiveness and cost-effectiveness of fraud-prevention activities that would assess whether the fraud-prevention technology results in a fraud rate materially lower than that associated with PIN transactions and whether the cost of implementing a technology is less than the amount of fraud losses eliminated by its use.
In contrast to the other commenters, several technology companies supported the specification of particular fraud-prevention technologies in the Board's standards.
EFTA Section 920(a)(4)(C) directs the Board to consult, as appropriate, with the Comptroller of the Currency, the Board of Directors of the Federal Deposit Insurance Corporation, the National Credit Union Administration Board, the Administrator of the Small Business Administration, and the Director of the Bureau of Consumer Financial Protection in the development of the interchange fee standards. Board staff consulted with staff from these agencies in development of a final rule on standards for receiving or charging a fraud-prevention adjustment.
EFTA Section 920(a)(5) requires the Board to consider several different factors in prescribing regulations related to the fraud-prevention adjustment. This section discusses each of those factors.
The most commonly-reported and highest-value fraud types were counterfeit card fraud; mail, telephone, and Internet order (or “card-not-present”) fraud; and lost and stolen card fraud.
The different fraud loss rates for signature and PIN transactions reflect, in part, differences in the ease of committing fraud associated with the two card- and cardholder-authentication methods. A signature debit card transaction requires information that is typically contained on the card itself in order for card and cardholder authentication to take place. Therefore, a thief need only steal the card or information on the card in order to commit fraud.
Card issuers responding to the Board's survey reported that card-present fraud losses for signature debit transactions were over 3 times greater than the fraud loss value, in basis points, associated with PIN debit card-present transactions. Issuers also reported that fraud losses across all parties on transactions over signature debit networks were higher for card-not-present transactions than for card-present transactions.
Based on reported information, the median issuer spent 1.8 cents per transaction on all fraud-prevention activities. The most commonly reported activity in the fraud-prevention section of the survey was transaction monitoring, which generally includes activities related to the authorization of a particular electronic debit transaction, such as the use of neural networks and automated fraud risk scoring systems that may lead to the denial of a suspicious transaction. At the median, issuers reported spending approximately 0.7 cents per transaction on transaction monitoring activity.
Using the issuer survey data for 2009, the Board estimated the cost of fraudulent transactions absorbed by different parties to debit card transactions. Based on the issuer survey responses, almost all of the reported fraud losses associated with debit card transactions fall on the issuers and merchants. In particular, across all types of transactions, 62 percent of reported fraud losses were borne by issuers and 38 percent were borne by merchants. The fraud loss borne by cardholders is low in dollar terms, but may also include costs associated with the time spent rectifying fraudulent transactions. Most issuers reported that they impose zero or very limited liability on cardholders, even where they would be permitted to impose some liability under the EFTA and Regulation E. Payment card networks and merchant acquirers also reported that they bore very limited fraud losses, indicating that merchant acquirers pass through fraud losses to merchants.
The distribution of fraud losses between issuers and merchants varies based on the authentication method used in a debit card transaction. Issuers and payment card networks reported that nearly all the fraud losses associated with PIN debit card transactions (96 percent) were borne by issuers. By contrast, reported fraud losses were distributed much more evenly between issuers and merchants for signature debit card transactions. Specifically, issuers and merchants bore 59 percent and 41 percent of signature debit fraud losses, respectively.
The distribution of fraud losses also varies based on whether or not the card was present at the point of sale. According to the survey data, merchants assume approximately 74 percent of signature debit card fraud for card-not-present transactions, compared to 23 percent for card-present signature debit card fraud.
The Board has considered all comments received and has adopted a final rule for the fraud-prevention adjustment to the amount of an interchange transaction fee that an issuer may receive or charge. The final rule permits an issuer that satisfies the Board's fraud-prevention standards to receive or charge an amount of no more than 1 cent per transaction in addition to any interchange transaction fee it receives or charges in accordance with § 235.3, the same amount as permitted in the interim final rule. The final rule emphasizes the statutory requirements by establishing fraud-prevention standards that require an issuer to develop and implement policies and procedures reasonably designed to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions, including through the development and implementation of cost-effective fraud-prevention technology. An issuer's policies and procedures must address (1) methods to identify and prevent fraudulent electronic debit transactions; (2) monitoring of the volume and value of its fraudulent electronic debit transactions; (3) appropriate responses to suspicious electronic debit transactions in a manner designed to limit the costs to all parties from and prevent the occurrence of future fraudulent electronic debit transactions; (4) methods to secure debit card and cardholder data; and (5) such other factors as the issuer considers appropriate.
The final rule requires an issuer to review its fraud-prevention policies and procedures, and their implementation, at least annually, and update them as necessary in light of (i) their effectiveness in reducing the occurrence of, and cost to all parties from, fraudulent electronic debit transactions involving the issuer; (ii) their cost-effectiveness; and (iii) changes in the types of fraud, methods used to commit
To be eligible to receive or charge a fraud-prevention adjustment, an issuer must annually notify its payment card networks that it complies with the Board's fraud-prevention standards. Finally, if an issuer is substantially noncompliant with the Board's fraud-prevention standards, as determined by the issuer or the agency with responsibility for enforcing the issuer's compliance with Regulation II, the issuer must notify its payment card networks that it is no longer eligible to receive or charge a fraud-prevention adjustment no later than 10 days after the date of the issuer's determination or notification from the agency and must stop receiving or charging the fraud-prevention adjustment no later than 30 days after notifying its networks.
The Board made various changes throughout § 235.4, and accompanying commentary, in response to comments and additional information available to it. The final rule is explained more fully below.
Section 235.4(a) of interim final rule permits an issuer to increase the amount of the interchange fee it may receive or charge under § 235.3 by no more than 1 cent if the issuer complies with the Board's fraud-prevention standards in § 235.4(b) of the interim final rule. The adjustment amount is the same irrespective of authentication method, transaction type, or issuer.
The Board surveyed issuers regarding their total cost incurred in 2009 for fraud-prevention and data-security activities, as well as for research and development activities related to an issuer's fraud-prevention program. The Board also asked issuers to report the costs associated with the following: card-activation systems, PIN customization, merchant blocking, transaction monitoring, specialized authorization services, cardholder-authentication systems, card-authentication systems, data-access controls, and data encryption. The Board also invited issuers to report other fraud-prevention and data-security activities, and the costs incurred from those activities.
The interim final rule included costs related to activities used by issuers to “detect, prevent, and mitigate” fraudulent electronic debit transactions, as reported by issuers in the Board survey.
The adjustment amount in the interim final rule corresponds to the reported fraud-prevention costs, excluding those fraud-prevention costs included in the interchange fee standards in § 253.3, of the issuer at the median of the survey respondents. The median issuer's 2009 per-transaction fraud-prevention cost reported to the Board was 1.8 cents. The costs associated with research and development, card-activation systems, PIN customization, merchant blocking, and card-authentication systems were all small when measured on a per-transaction basis, typically less than one-tenth of a cent each. For all data-security costs reported by issuers in the card issuer survey, the median was 0.1 cents.
In setting the interchange fee standard in § 235.3, the Board included costs of transaction-monitoring systems that are integral to the authorization of a transaction. Transaction monitoring systems assist in the authorization process by providing information to the issuer before the issuer decides to approve or decline the transaction. Because these costs are already included for all covered issuers as a basis for establishing the interchange fee standards, the Board excluded them in determining the fraud-prevention adjustment amount. The median issuer's transactions-monitoring cost is 0.7 cents per transaction. The fraud-prevention adjustment of 1 cent represents the difference between the median issuer's fraud-prevention cost of 1.8 cents per transaction less the median issuer's transaction-monitoring cost of 0.7 cents, rounded to the nearest cent.
In general, issuers and networks encouraged the Board to include costs of a broad set of fraud-prevention activities. In particular, these commenters recommended that the Board include in the calculation of the adjustment costs related to routine account monitoring, customer notifications, routine and non-routine card issuance and reissuance, name and address verification, chargeback costs, research and development of new fraud-prevention technologies, data security, card-activation systems, neural networks, transaction scoring, PIN customization, merchant blocking, other software systems, and lost revenue due to customers not having access to their debit card while awaiting reissuance. Some commenters encouraged the Board to include, in particular, the costs of activities undertaken in response to merchant data breaches.
Issuers also suggested that the Board include the costs of cardholder inquiries related to fraud, including providing payment transaction clarity so that customers are able to identify merchants listed on their statements. These commenters asserted that fraudulent transactions almost always involve a cardholder inquiry and that responding to cardholder inquiries is a fundamental and an economical means of preventing fraud as it permits issuers to gather information about lost and stolen cards, which is necessary to make decisions regarding appropriate responses to prevent fraud in connection with such cards. These commenters also noted that time and expense associated with cardholder inquiries is quantifiable and that the Board should try to determine the portion of cardholder inquiry costs related to fraud prevention.
A number of issuer commenters also encouraged the Board to base the fraud-prevention adjustment amount on the fraud-prevention costs of issuers that are exempt from the interchange fee standards in § 253.3 and the fraud-
Merchants, on the other hand, argued that the Board included too many fraud-prevention costs. One commenter asserted that including costs to detect and mitigate fraud goes beyond “preventing fraud.” Additionally, merchants argued that the Board included costs of activities that have not been proven to prevent fraud, such as PIN customization (which one commenter argued makes PINs easier to guess) and research and development. Another commenter suggested that the Board more precisely delineate between activities that prevent fraud and those that do not.
Most merchant and merchant group commenters also asserted that the Board failed to take into account merchant's fraud-prevention costs, as required by EFTA Section 920(a)(5)(B). Several of these merchant commenters encouraged the Board to offset the adjustment amount by merchants' fraud-prevention costs or by the amount issuers recoup from other parties to the fraudulent electronic debit transaction through chargebacks or other means. One commenter argued that the desire to avoid or minimize the administrative burden associated with surveying merchants is not a sufficient reason for not measuring merchant costs. Another commenter argued that, by not considering specific merchants' fraud-prevention costs, merchants that have mostly card-not-present transactions essentially subsidize fraud prevention for the rest of the network, because those merchants tend to invest more in fraud prevention (to deal with higher rates of fraud in the card-not-present environment) than merchants that have mostly card-present transactions. One merchant commenter suggested that the Board take merchant costs into account by prohibiting issuers from imposing any fraud loss costs or PCI–DSS (or similar costs) on merchants if the fraud relates to transactions that qualify for the fraud-prevention adjustment.
Section 920(a)(5)(A)(i) of the EFTA permits the Board to allow an adjustment to the amount of an interchange fee that an issuer may receive or charge if “such adjustment is reasonably necessary to make allowance for costs incurred by the issuer in preventing fraud in relation to electronic debit transactions involving that issuer.” Fraud prevention involves a broad range of activities in which an issuer may engage before, during, or after an electronic debit transaction. Fraud-prevention activities include activities to detect fraudulent transactions. Detecting possible fraud during the authorization process, for example, can lead to actions such as denying a transaction or contacting the cardholder to verify the legitimacy of a previously authorized transaction. In this way, detecting possible fraudulent electronic debit transactions can prevent the fraud from happening. Similarly, issuers can take steps once fraud is discovered to mitigate the loss associated with the fraudulent activity. For example, an issuer may place an alert on a debit card indicating that the card or account information may have been compromised or cancel a compromised card and issue a new card to the cardholder in order to prevent future fraudulent transactions using the card. Thus, although the initial fraudulent transaction(s) may not have been prevented, an issuer can prevent additional fraud loss by taking such steps. Therefore, the Board has determined that activities that detect and mitigate fraudulent electronic debit transactions contribute to preventing fraud and that the costs of such activities are appropriate to include for purposes of the fraud-prevention adjustment.
Costs associated with research and development of new fraud-prevention technologies, card reissuance due to fraudulent activity, data security, card activation, and merchant blocking are all examples of costs that are incurred to detect and prevent fraudulent electronic debit transactions. Therefore, the Board has included the costs of these activities in setting the fraud-prevention adjustment amount to the extent the issuers reported these costs in response to the survey on 2009 costs. As in the interim final rule, the Board has determined to exclude from the adjustment amount any costs included in the interchange fee standards in § 253.3. Thus, the costs of transaction monitoring activities such as the use of neural networks and transactions scoring systems that assist in the authorization process by providing information to the issuer before the issuer decides to approve or decline the transaction were not considered.
Section 920(a)(5) allows the Board to permit an adjustment to make allowance for costs incurred by the issuer in preventing fraud in relation to electronic debit transactions. Accordingly, the Board did not include costs incurred to prevent fraud to a cardholder's transaction account through means other than fraudulent electronic debit transactions, or costs incurred to prevent fraud in connection with other payment methods such as credit cards. For example, name and address verification used in opening a checking account is an excluded activity because it involves preventing fraud with respect to the entire account relationship and is performed whether or not a debit card is issued as a means of making payments from the account. Similarly, the costs of activities employed solely to prevent fraudulent credit card transactions are not included. To the extent an issuer engages in an activity or activities to prevent both fraudulent credit card and debit card transactions (e.g., securing data across all of its card programs), issuers were instructed to allocate such joint costs in the issuer survey based on the relative proportion of the cost of the activity that was tied to debit card transactions, and only that proportion of costs was included in determining the fraud-prevention adjustment.
Additionally, fraud losses, including ATM losses, and the lost revenue due to customers' inability to use their debit cards while awaiting reissuance are not costs incurred to prevent fraudulent electronic debit transactions and are excluded. Similarly, costs of purchasing fraud-loss insurance or recovering losses also are excluded as these are not costs incurred to prevent fraudulent electronic debit transactions.
The Board has given consideration to, and taken into account, the fraud-prevention costs of other parties by setting the adjustment based on the costs of the median issuer (as opposed to the interchange fee standards in § 253.3, which were set at the 80th percentile issuer).
The maximum permissible fraud-prevention adjustment amount in the interim final rule is 1 cent. In general, issuers, depository industry trade associations, and payment card networks supported increasing the adjustment amount and asserted that the adjustment amount in the interim final rule would discourage innovation and investment in fraud-prevention activities, particularly in technology requiring substantial upfront investment. Issuers also argued that the 1-cent adjustment amount would undermine the goal of protecting cardholder financial information. Another commenter stated that an insufficient fraud-prevention adjustment could lead to an increase in declined transactions at the point of sale as issuers become more conservative in transaction authorizations. Another issuer commenter believed that the fraud-prevention adjustment disproportionately shifts the burden on issuers to implement fraud-prevention measures without reasonable compensation.
Several issuers suggested setting the adjustment amount based on the costs of the issuer at the 80th percentile, consistent with the interchange fee standards in § 235.3. Issuer commenters stated that the Board provided no explanation for setting the adjustment at the median while the interchange fee standard was set at the 80th percentile of issuers' reported costs or for why the fraud-prevention activities of issuers with costs above the median were not viewed as cost-effective.
A few issuers suggested incorporating an
Other comments from issuers suggested other manners in which the fraud-prevention amount could vary. Specifically, one issuer suggested increasing the adjustment amount for those issuers with higher-than-average fraud losses because such issuers will both absorb more fraud losses and incur more costs to prevent and mitigate fraud. Another issuer suggested imposing a higher fraud-prevention adjustment on merchants that are not PCI–DSS compliant or to set the fraud-prevention adjustment amount as a percentage of interchange fee revenue.
One technology company suggested that issuers receive an additional amount for adopting specific fraud-prevention technologies such as biometric facial recognition software or other authentication methods not yet prevalent in the industry.
In general, merchants and their associations urged the Board to adopt a lower adjustment amount. Some merchant groups opposed the use of the data collected from issuers to determine the amount of the adjustment, arguing that the survey was flawed. These commenters argued that the Board did not reveal results from the survey until it published the interim final rule, that only a small subset of covered issuers responded, and that there was no independent verification. One merchant commenter supported the adjustment amount in recognition of the fact that issuers ultimately are subject to complying with the Board's fraud-prevention standards, but opposed the Board increasing the adjustment amount higher than 1 cent. One merchant questioned whether a fraud-prevention adjustment was necessary given the amount an issuer could receive or charge under the base interchange fee standard.
The Board has considered the comments and has determined to retain the 1-cent fraud-prevention adjustment amount that is permitted in the interim final rule. As mentioned above, the Board initially set the adjustment amount at the fraud-prevention cost of the median issuer based on 2009 fraud-prevention costs reported by issuers in response to the Board's 2010 survey, minus those fraud-prevention costs that are already part of the interchange fee standards in § 253.3. The Board chose to
The Board has considered the comments suggesting an
The Board has also determined not to permit issuers to receive or charge an adjustment above the 1-cent amount for adopting certain new authentication methods. As noted below in connection with § 235.4(b), the Board has taken a non-prescriptive approach to allow for flexibility in using a variety of methods to prevent fraudulent electronic debit transactions.
As previously noted, the Board is using the fraud-prevention cost data as reported by issuers for 2009 in determining the maximum fraud-prevention adjustment amount permitted in Regulation II. Since that time, the Board has surveyed issuers that are not exempt from the interchange fee standards for their data for calendar year 2011. At the time of this final rule, the Board is still processing and analyzing the 2011 data. The Board will take into account data from the 2011 survey and future surveys when considering any future revisions to the fraud-prevention adjustment.
The interim final rule permits an issuer to receive or charge the fraud-prevention amount for all types of electronic debit transactions. Several merchant commenters encouraged the Board to permit an adjustment only for PIN-based transactions, due to the lower fraud rates of PIN-based debit compared to signature-based debit. Other merchant commenters suggested the Board permit an adjustment only for authentication methods that have fraud rates demonstratively lower than those for PIN transactions. One individual suggested that the Board provide greater disincentives, such as a negative adjustment, for less secure technologies and asserted that doing so was consistent with the statutory directive to consider the extent to which the occurrence of fraud depended on the authentication method.
Issuers and networks supported applying the adjustment to all debit card transactions. These commenters argued that not all authentication methods are available for all transactions. One consequence of this, they argued, is that lower fraud rates and losses for PIN may be due to the fact that signature is the only method available for Internet transactions and that PIN fraud, unlike signature fraud, often manifests itself as ATM fraud, which the Board did not take into account. Some of these commenters also argued that limiting the adjustment to PIN transactions would create disincentives to invest in signature and other non-PIN based fraud prevention. Authentication technology providers also supported not limiting the adjustment to authentication methods that exist and are used widely today.
The Board has considered the comments and has determined that an eligible issuer may receive or charge a fraud-prevention adjustment for all electronic debit transactions irrespective of the authentication method used for the transaction. As recognized in the interim final rule, limiting the adjustment to only a subset of authentication methods, or only those available today, may not provide issuers with sufficient flexibility to develop other methods of authentication that may be more effective than today's alternatives and may not require a PIN. Limiting the transactions eligible for a fraud-prevention adjustment also may reduce the incentives for issuers to improve fraud-prevention techniques for authentication methods that, for a variety of reasons, experience higher fraud rates. Further, because issuers are less likely to receive a higher interchange fee for signature-based transactions than in the past, the Board believes that issuers' incentives to encourage cardholders to use their signature rather than their PIN to authenticate transactions at the point of sale will diminish.
The Board's 2010 proposed rule did not contain a specific proposal for a fraud-prevention adjustment to the interchange fee standards. Instead, as discussed above, the Board requested comment on two general approaches to an adjustment: a technology-specific approach, which would permit an issuer to recover costs for major innovations identified by the Board as likely to result in substantial reductions in fraud losses, and a non-prescriptive approach, which would involve more general standards for an issuer to satisfy without the prescription of specific technologies.
Issuers, depository institution trade associations, and payment card networks preferred the non-prescriptive approach because that approach would maintain issuer flexibility to respond to existing and emerging fraud risks and to do so in a timely manner. Merchants supported an approach that provided incentives to issuers and networks to switch from the current methods and technologies to more effective (“paradigm shifting”) fraud-prevention technologies. One merchant group's suggestion, supported by many other merchant commenters, proposed an approach under which any technologies issuers wanted to offer to merchants must undergo an application and approval process managed by the Board before the issuer would be eligible to receive the fraud-prevention adjustment. This merchant group suggested that, as part of the application and approval process, an issuer must
The Board adopted the non-prescriptive approach to fraud-prevention standards in the interim final rule. The Board determined that the dynamic nature of the debit card fraud environment necessitates standards that permit issuers to identify the best methods to detect, prevent, and mitigate fraud losses for the size and scope of their debit card programs and to respond to frequent changes in fraud patterns. In addition, specifying and limiting the set of technologies for which issuers recover their costs may weaken the long-term effectiveness of the specified technologies. The reasons for selecting the non-prescriptive approach for the interim final rule are set forth more fully in the
Section 235.4(b)(1) of the interim final rule requires an issuer, in order to be eligible to receive a fraud-prevention adjustment, to develop and implement policies and procedures reasonably designed to: (1) Identify and prevent fraudulent electronic debit transactions; (2) monitor the incidence of, reimbursements received for, and losses incurred from fraudulent electronic debit transactions; (3) respond appropriately to suspicious electronic debit transactions so as to limit the fraud losses that may occur and prevent the occurrence of future fraudulent electronic debit transactions; and (4) secure debit card and cardholder data. Procedures could include practices, activities, methods, or technologies that are used to implement and make effective an institution's fraud-prevention policies. The commentary to § 235.4(b) discusses the types of fraud that an issuer's policies and procedures should address, which includes the unauthorized use of a debit card (
Issuers and networks overwhelmingly supported the non-prescriptive framework and standards in § 235.4(b). Issuers and networks asserted that the non-prescriptive approach would provide incentives to prevent fraud and invest in new fraud-prevention technologies, while also providing flexibility for each issuer to determine its optimal fraud-prevention solutions (including non-technology based solutions) and enabling issuers, networks, and acquirers to compete based on fraud-prevention tools. Issuers and networks opposed a technology-specific approach, which they argued would lock the industry into particular technologies, give fraudsters advance notice of fraud-prevention methods, slow the implementation of new technology, and result in an inefficient allocation of resources by discouraging new investments in other technologies. Moreover, issuers and networks did not believe that the government was better positioned than industry participants to select the most effective and commercially feasible fraud-prevention technology.
Merchants opposed both specifying particular fraud-prevention technologies in the rule (although supported Board-involvement in approving eligible technologies) and the standards as set forth in the interim final rule. Many merchants opposed the standards in the interim final rule because they believed that the standards, as drafted, would permit issuers to qualify for an adjustment by adopting existing fraud-prevention technologies, which the merchant commenters believed to be ineffective at preventing fraud. In addition, one merchant believed that the standards were too vague and may inadvertently lead to issuers adopting policies and procedures that are inconsistent with providing economical means of reducing fraud. Merchants restated their support for the paradigm-shifting approach suggested in response to the proposed rule in which an issuer would be eligible for the fraud-prevention adjustment only if the issuer adopted a technology that reduced fraud to levels that are materially lower than the levels experienced with PIN debit, and only after the issuer documented the technology's effectiveness and cost-effectiveness to the Board.
Issuers widely supported the Board's standards in the interim final rule and argued that they should be eligible for the adjustment without demonstrating actual reductions in fraud because fraud may be caused by factors outside of the issuer's control. By contrast, merchants and their trade groups believed the standards to be inconsistent with EFTA Section 920(a)(5)'s requirements. Specifically, merchants argued that the standards should require an issuer to demonstrate quantifiable reductions in the incidence of fraud prior to receiving a fraud-prevention adjustment. One merchant commenter argued that requiring issuers' policies and procedures to be “reasonably designed” to achieve the Board's objectives is not equivalent to requiring issuers to take “effective” steps to prevent fraud, which is the requirement in EFTA Section 920(a)(5).
Merchant commenters, as well as a member of Congress, encouraged the Board to adopt metrics-based standards to ensure that issuers receive the fraud-prevention adjustment only if they reduce fraud losses or the occurrence of fraud to specified levels, for example, at or below the industry fraud levels for PIN debit transactions. This approach, the commenters argued, would ensure that the market has proper incentives to adopt effective fraud-prevention technology.
Merchants also argued that the Board's standards were inconsistent with EFTA Section 920(a)(5)'s requirement that issuers develop and implement cost-effective fraud-prevention technology. Merchants argued that the Board's standards failed to demonstrate the cost-effectiveness of fraud-prevention measures. One merchant group believed that the cost-
Finally, merchants argued that the Board's standards do not require an issuer receiving the adjustment to demonstrate that it has made any investments in fraud-prevention activities that reduce fraud.
The Board has considered the comments and has adopted fraud-prevention standards in the final rule that largely follow the non-prescriptive approach set forth in the interim final rule. The Board has revised § 235.4(b)(1) to provide that, in order to be eligible for a fraud-prevention adjustment to the amount of any interchange fee received or charged in accordance with § 235.3, an issuer must develop and implement policies and procedures reasonably designed to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions, including through the development and implementation of cost-effective fraud-prevention technologies. New § 235.4(b)(2) will continue to require an issuer's policies and procedures to address fraud-prevention objectives similar to those in the interim final rule (discussed further below), but the Board is expanding the scope of those policies and procedures to permit issuers to consider factors other than those explicitly listed, if appropriate.
After considering the comments received, the Board has determined that the final rule should not prescribe specific technologies that an issuer must implement in order to be eligible to receive an adjustment. The dynamic nature of the debit card fraud environment and the variation in issuer debit card portfolios, customer base, and transaction-processing arrangements requires standards that permit issuers to determine the best methods to detect and prevent fraudulent transactions, and mitigate fraud losses from those transactions, as well as to respond to the frequent changes in industry fraud types and methods, and available fraud-prevention methods. Standards that incorporate a technology-specific approach would not provide issuers with sufficient flexibility to design and modify policies and procedures that best meet a particular issuer's needs and that most effectively reduce fraud losses to all parties involved in the transactions.
Similarly, standards that restrict eligible fraud-prevention technologies to those that an issuer has demonstrated to be effective and that have been subject to a Board approval process would not provide sufficient flexibility to issuers. Moreover, because existing fraud-prevention technologies are implemented as part of broader fraud-prevention programs, requiring issuers to isolate and measure the effectiveness of a particular fraud-prevention technology would be impractical.
Prescribing one eligible technology or a limited set of eligible technologies also could inhibit investment in new, “non-eligible” technologies (i.e., those for which effectiveness has not yet been demonstrated because they are not implemented in the marketplace), which ultimately could become more effective than “eligible” technologies. Specifically prescribing eligible fraud-prevention technologies also would provide fraudsters with information on the fraud-prevention technologies prevalent in the industry, which could make those technologies less effective over time.
Moreover, even the most effective fraud-prevention technologies issuers could implement would not prevent all fraudulent electronic debit transactions. This fact underscores the need for a fraud-prevention program that also involves non-technology-based policies and procedures (such as notifying customers of potentially fraudulent transactions) that complement technology-based fraud-prevention solutions.
In its proposed rule, the Board did not include a definition of “fraud” or “fraudulent electronic debit transaction,” but suggested that fraud in the debit card context should be defined as “the use of a debit card (or information associated with a debit card) by a person, other than the cardholder, to obtain goods, services, or cash without authority for such use.”
Commenters were divided as to whether the Board should define “fraud” or “fraudulent electronic debit transaction” in the regulatory text. Some issuers opposed defining either term because fraud is constantly changing and defining the term in the regulatory text would provide issuers with less flexibility to adapt their fraud-prevention programs to changing fraud. Other issuers opposed including a definition arguing that what is fraud is a judicial concept that should not be defined in the regulatory text. In general, commenters that supported including a definition of “fraud” or “fraudulent electronic debit transaction” appeared to do so as a means to either limit or expand the types of fraud-prevention activities an issuer's policies and procedures should address.
Commenters that supported including a definition of “fraud” or “fraudulent electronic debit transaction” in the regulatory text were divided as to how the Board should define any such term. One merchant commenter suggested that the definition be limited to the unauthorized use of the debit card in order to exclude transactions by fraudulent merchants and fraudulent
The final rule does not include a regulatory definition of either “fraud” or “fraudulent electronic debit transaction.” The Board continues to believe that which transactions are considered fraudulent will be determined based on the facts and circumstances and may evolve over time. The Board also continues to believe that fraudulent electronic debit transactions should not be limited to the “unauthorized” use of a debit card, as that term is used elsewhere in the EFTA, because all types of fraud impose costs on system participants. Accordingly, an issuer's policies and procedures should be designed to reduce the occurrence of, and costs to all parties from, all types of fraud and not merely the unauthorized use of a debit card.
The Board, however, has made clarifying changes to interim final rule comment 4(b)–2, which is redesignated as comment 4(b)(1)–1 (hereinafter referred to as comment 4(b)(1)–1). In the interim final rule, the comment provided that the listed examples of fraud are types of fraud that could be “effectively addressed by the issuer, as the entity with the direct relationship with the cardholder and that authorizes the transaction.” The Board recognizes that in some instances the issuer may be able to use its direct relationship with the cardholder to prevent these types of fraud (
Section 920(a)(5) of the EFTA mandates that the Board's fraud-prevention standards require an issuer to take effective steps to reduce the occurrence of, and costs from, fraud in relation to electronic debit transactions, including through the development and implementation of cost-effective fraud-prevention technologies. In assessing whether an issuer is taking effective steps to reduce fraudulent electronic debit transactions, the Board does not believe that Section 920(a)(5) requires that the steps an issuer takes prevent all fraud. Moreover, the Board does not believe, as some merchant commenters argued, that an issuer be required to demonstrate that a particular fraud-prevention measure directly led to a reduction in fraudulent electronic debit transactions before the cost of that measure is included in the fraud-prevention adjustment. Isolating the effectiveness of a particular fraud-prevention measure is virtually impossible due to the numerous fraud-prevention methods and technologies implemented by an issuer and the fact that the effectiveness of a particular measure may not be evident until a year or more after implementation. In addition, an issuer's incidence of fraudulent electronic debit transactions may fluctuate for various reasons, including factors outside the issuer's control (e.g., a data breach at a large merchant processor).
EFTA Section 920(a)(5) requires that an issuer take effective steps to reduce fraudulent electronic debit transactions, without any reference to the size of the reduction. The language of EFTA Section 920(a)(5) does not compel the Board to impose a maximum permissible level of fraudulent electronic debit transactions for an issuer to be eligible to receive a fraud-prevention adjustment. In addition, selecting a benchmark fraud level would not necessarily ensure that issuers continue to take effective steps to reduce fraudulent transactions due to the variety of sales channels and evolving fraud-prevention technologies. An issuer may not have incentives to develop or invest in new and potentially more effective fraud-prevention technologies for sales channels that experience fraud levels below the selected benchmark level or if the issuer experiences fraud at a level below the selected benchmark. Moreover, deeming an issuer to be eligible for an adjustment if the issuer's fraud rate is below some industry rate would not necessarily satisfy the requirement that the Board's standards require an issuer to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions involving that issuer. For example, an issuer with a fraud rate significantly below the benchmark may be able to qualify for a fraud-prevention adjustment even if the steps that issuer is taking are no longer effective in
In addition, requiring issuers to maintain fraud below a benchmark level, particularly one based on technology that may not be available widely for all point-of-sale channels, could have adverse consequences for consumers. Cardholders may not always be able to use lower-fraud fraud-prevention methods (such as PIN) in all point-of-sales channels.
The final rule permits an issuer to receive the fraud-prevention adjustment if it develops and implements policies and procedures reasonably designed to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions and if those policies and procedures address the fraud-prevention aspects in revised § 235.4(b)(2). This approach recognizes that, at the outset, an issuer cannot predict with certainty that any particular policies and procedures will effectively prevent fraud in relation to electronic debit transactions. The Board believes that providing specific factors that issuers
The Board has added new comment 4(b)(1)–2 to clarify that an issuer's policies and procedures must be designed to reduce fraud, where cost-effective, across all types of electronic debit transactions in which its cardholders engage.
The Board has not adopted the language in interim final rule comment 4(b)(1)(i)–2 requiring an issuer to consider practices to encourage its cardholders to use the materially more effective authentication method and to consider methods for reducing fraud for the less effective authentication method. Since October 1, 2011, when the Board's interchange fee standards became effective, the differential in interchange fee revenue across networks supporting different authentication methods largely has been eliminated for issuers that are subject to the interchange fee standards. Accordingly, issuers no longer have the incentive to steer cardholders to one type of authentication method over another. Issuers, however, will continue to be required to review the effectiveness of each of their authentication methods as part of the required review of their fraud-prevention policies and procedures.
Relatedly, the Board requested comment on whether the Board's standards should require an issuer to assess whether its customer rewards or similar programs provide inappropriate incentives to use an authentication method that is demonstrably less effective in preventing fraud. A few issuers opposed requiring issuers to assess customer rewards policies because doing so was outside the Board's authority and unnecessary. Specifically, these issuers believed that the interchange fee standards in § 235.3 likely would reduce the prevalence of reward programs. In addition, issuers argued that they consider a variety of factors when determining whether to offer rewards programs and expressed confusion as to what would constitute an “inappropriate incentive.” One merchant trade group supported prohibiting issuers from receiving a fraud-prevention adjustment if they provide incentives to use a high-fraud authentication method, and one consumer group supported a requirement on issuers to assess whether their rewards programs are encouraging the use of less secure fraud-prevention technologies.
For reasons similar to the determination not to adopt the language in interim final rule comment 4(b)(1)(i)–2, the Board has neither imposed a specific requirement that issuers assess whether their rewards programs provide incentives to cardholders to use higher-fraud authentication methods nor prohibited issuers from receiving a fraud-prevention adjustment due to their use of rewards and other incentives. Issuers offer rewards programs to cardholders for a variety of reasons, and, to the extent rewards programs were based on differentials in interchange fees across networks, § 235.3 effectively has largely eliminated a covered issuer's incentive to offer rewards for transactions over one network. Accordingly, the potential fraud-prevention benefit from explicitly requiring issuers to assess whether cardholder rewards or similar incentive programs provide an inappropriate incentive to use higher-fraud authentication methods is significantly outweighed by the added burden that would be imposed on issuers.
EFTA Section 920(a)(5) also provides that an issuer must take effective steps to reduce “costs from” fraudulent electronic debit transactions.
New comment 4(b)–3 provides guidance on the reduction in the occurrence of, and costs to all parties from, fraudulent electronic debit transactions. A reduction in the occurrence of fraudulent electronic debit transactions can be measured by determining whether there is a reduction in the number of an issuer's electronic debit transactions that are fraudulent relative to the issuer's total electronic debit transactions. The Board believes that measuring a reduction in the occurrence of fraudulent electronic debit transactions in relation to an issuer's total transactions is more appropriate than measuring the reduction in terms of the absolute number of fraudulent transactions. Measuring only the change in the number of an issuer's fraudulent electronic debit transactions would not, for example, account for an increase in the number of electronic debit transactions initiated by an issuer's cardholders. In addition, an issuer must implement policies and procedures that
New comment 4(b)–4 recognizes that the number and value of an issuer's fraudulent electronic debit transactions relative to non-fraudulent transactions may vary materially from year to year and that, in certain circumstances, an issuer's policies and procedures may be effective notwithstanding a relative increase in transactions that are fraudulent in a particular year. For example, a data breach at a merchant processor that exposes the data of a substantial portion of an issuer's cards and cardholders could result in the issuer having a relatively higher number of fraudulent transactions in one year than in the preceding year, even if the issuer had implemented the same or improved fraud-prevention policies and procedures. This could be a circumstance in which an issuer's policies and procedures may be effective notwithstanding a relative increase in transactions that are fraudulent.
Continuing increases in an issuer's fraudulent transactions relative to non-fraudulent transactions, however, would warrant further scrutiny as to the effectiveness of an issuer's policies and procedures. For example, instead of at a merchant processor, the data breach might occur at the issuer or the issuer's processor. As a result, an issuer may experience higher fraud rates in one year and, in the following years, the share of that issuer's transactions that are fraudulent may continue to increase. Further scrutiny would be warranted to determine, for example, whether the issuer's policies and procedures are designed to take effective steps to prevent fraudulent transactions as a direct result of the initial data breach and to prevent subsequent data breaches from occurring.
EFTA Section 920(a)(5) states that the Board's fraud-prevention standards must require an issuer to take effective steps to reduce the occurrence of, and costs from, fraudulent electronic debit transactions, including through the development and implementation of cost-effective fraud-prevention technologies. Some merchant commenters argued that the Board's standards in the interim final rule failed to require issuers to demonstrate the cost-effectiveness, particularly vis-à-vis merchants, of their fraud-prevention measures prior to receiving the fraud-prevention adjustment. One commenter believed that the Board's standards could not satisfy the cost-effective requirement in the statute unless the adjustment amount is based on issuer-specific fraud reduction and cost. By contrast, one issuer asserted that measuring the cost-effectiveness of a particular activity at the outset may not be possible because new fraud-prevention activities must be monitored over time to assess cost-effectiveness.
EFTA Section 920 does not define the term “cost-effective.” Dictionaries, in general, define “cost-effective” as the quality of being economical in terms of the benefits, including goods or services received for the money spent.
An alternate interpretation of the cost-effectiveness requirement is that, instead of requiring an issuer to affirmatively demonstrate the cost-effectiveness of a particular fraud-prevention technology, the requirement acts as a limitation on the fraud-prevention methods the Board's standards may require issuers to develop and implement. Thus, the Board could not adopt standards that would require an issuer to develop and implement new fraud-prevention technologies the costs of which far exceed any expected benefit from adopting the technologies.
EFTA Section 920(a)(5)(A)(ii) is silent as to which party's perspective is relevant for the cost-effectiveness of a particular technology. EFTA Section 920(a)(5)(B) requires the Board to consider, among other factors, the fraud-prevention and data-security costs expended by each party involved in electronic debit transactions. There are numerous fraud-prevention methods an issuer may use or adopt. Some of these fraud-prevention methods, such as the use of neural networks, do not impose costs on other parties to the transaction. Other fraud-prevention methods, such as card-authentication technology built into the card, impose costs on merchants that must ensure their point-of-sale terminals are compatible with the card-authentication technology embedded in the card. Therefore, the Board believes that it is appropriate, when assessing the cost-effectiveness of a particular fraud-prevention technology, for an issuer to consider whether and to what extent the fraud-prevention method it implements will impose costs on other parties. The Board recognizes, however, that an issuer may not have complete information about the costs that other parties may incur. Nonetheless, an issuer should consider the approximate magnitude of the costs imposed on other parties, even though an issuer may not have complete information about the extent of the costs imposed on other parties.
New comment 4(b)–5 clarifies that a consideration of the cost-effectiveness of a fraud-prevention technology involves considering the expected cost of a technology relative to the expected effectiveness of that technology in reducing fraud. This approach recognizes that an issuer likely will be unable to measure the issuer's actual cost and the actual effectiveness of a fraud-prevention technology, particularly if the technology is new, but will be able to form a reasonable expectation as to both the cost of and effectiveness of a given fraud-prevention technology. In calculating the expected cost of a particular fraud-prevention method, an issuer should consider both the expected initial implementation
New comment 4(b)–6 provides that an issuer need not develop fraud-prevention technologies itself to satisfy the standards in § 235.4(b), but may implement appropriate fraud-prevention technologies developed by a third party. Fraud-prevention technologies vary in their technological complexity, including the technological expertise and investment required for their development. Issuers—typically entities engaged in banking activities—often do not have the technological expertise to develop, or have opted not to specialize in the development of, complex fraud-prevention technologies. Instead, issuers often purchase fraud-prevention solutions (e.g., neural networks) developed by third parties. Although not developed by the issuer, these technologies nonetheless may be cost effective. Moreover, many issuers would not find it to be economical to devote resources to in-house research and development of all the fraud-prevention technologies they implement.
Section 235.4(b)(1) of the interim final rule requires an issuer, in order to be eligible to charge or receive a fraud-prevention adjustment, to develop and implement policies and procedures reasonably designed to (i) identify and prevent fraudulent electronic debit transactions, (ii) monitor the incidence of, reimbursements received for, and losses incurred from fraudulent electronic debit transactions, (iii) respond appropriately to suspicious electronic debit transactions so as to limit the fraud losses that may occur and prevent the occurrence of future fraudulent electronic debit transactions, and (iv) secure debit card and cardholder data. The interim final rule's commentary to § 235.4(b)(1) provides additional detail on the types of policies and procedures considered reasonably designed to achieve the fraud-prevention objectives in § 235.4(b)(1)(i) through (iv).
In addition to the comments received on the overall framework of the fraud-prevention standards (discussed above), the Board received more targeted comments on the policies and procedures designed to achieve the specified fraud-prevention objectives. These comments are discussed below in connection with each fraud-prevention objective.
In the final rule, revised § 235.4(b)(1) more generally requires an issuer to develop and implement policies and procedures that are “reasonably designed to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions.” Section 235.4(b)(2), in turn, sets forth elements of a fraud-prevention program that an issuer's policies and procedures must address. The Board believes, for the reasons set forth below, that developing and implementing policies and procedures that address these specific elements are steps that are effective in reducing the occurrence of, and costs from, fraudulent electronic debit transactions. These required aspects of a fraud-prevention program are similar to the fraud-prevention objectives in interim final rule § 235.4(b)(1).
Several commenters emphasized that one of the benefits of a non-prescriptive approach to fraud-prevention is that such an approach provides an issuer with greater flexibility to tailor its fraud-prevention program to the size and scope of its debit card program and to ever-changing fraud-types and patterns. The Board agrees that a flexible approach to fraud prevention is preferable to a one-size-fits-all approach. Accordingly, the Board has determined to add new comment 4(b)(2)–1 that provides that an issuer may tailor its fraud-prevention policies and procedures to address its particular debit card program. Relevant considerations when tailoring its policies and procedures include the size of its debit card program, the types of transactions in which its cardholders commonly engage (
In interim final rule § 235.4(b)(1), the first fraud-prevention objective of an issuer's policies and procedures is identifying and preventing fraudulent electronic debit transactions. The commentary to interim final rule § 235.4(b)(1) provides that an issuer's policies and procedures should include activities to prevent, detect, and mitigate fraud even if the costs of the activities are not recoverable as part of the fraud-prevention adjustment. The commentary also provides examples of policies and procedures designed to identify and prevent fraudulent electronic debit transactions. For example, an issuer could use an automated mechanism to assess the risk that a particular electronic debit transaction is fraudulent during the authorization process. An issuer also could implement practices that support cardholder-reporting of lost or stolen cards or suspected incidences of fraud. The commentary also provides that an issuer could specify the use of particular technologies or methods to better authenticate the cardholder at the point of sale. Finally, the commentary provides that an issuer's policies and procedures should include an assessment of the effectiveness of the different authentication methods that the issuer enables its cardholders to use and that, if the issuer determines one method is more effective than the other, the issuer should consider practices to encourage its cardholders to use the more effective authentication method, as well as consider adopting new methods of authentication that are materially more effective than those currently available to its cardholders.
One commenter suggested that Board state in the commentary that an issuer should review the effectiveness of its authorization rules that govern automated fraud-detection mechanisms. Another commenter suggested that the Board add language encouraging issuers to specify the use of particular technologies or methods in order to authenticate the payment device and cardholder at the time of the transaction because there may be two authentication processes—one that identifies the card and one that identifies the cardholder.
Section 235.4(b)(2)(i) of the final rule requires that an issuer's policies and procedures address “methods to identify and prevent fraudulent electronic debit transactions.” The Board has revised comment 4(b)(2)(i)–1.i (interim final rule comment 4(b)(1)(i)–2.iii) to include the concept of card authentication at the time of the transaction, as suggested by the commenter, in recognition of the fact
In addition, the Board has adopted comments 4(b)(2)(i)–1.ii and 4(b)(2)(i)–1.iii as set forth in interim final rule comments 4(b)(1)(i)–1.i and 4(b)(1)(i)–1.ii, respectively, and has made minor clarifying changes to comment 4(b)(2)(i)–1.iii. The Board has not revised the commentary to provide that an issuer review the effectiveness of any rules for its automated fraud-detection mechanisms, as suggested by a commenter. This review is encompassed in new § 235.4(b)(3), which requires an issuer to review its policies and procedures, and their implementation, in light of their effectiveness.
Section 235.4(b)(1)(ii) of the interim final rule requires issuers to monitor the incidence of, reimbursements received for, and losses incurred from fraudulent electronic debit transactions. Under that section, an issuer's policies and procedures must be designed to monitor the types, number, and value of electronic debit transactions, as well as its and its cardholders' losses from fraudulent electronic debit transactions, fraud-related chargebacks to acquirers, and reimbursements from other parties (such as from fines assessed to merchants for noncompliance with Payment Card Industry Data Security Standards). (
The Board has made minor, clarifying revisions to comment 4(b)(2)(ii)–1 (interim final rule comment 4(b)(1)(ii)–1). Specifically, the Board has revised this comment to clarify that the monitoring requirement is imposed on an issuer with respect to the number and value of the issuer's fraudulent electronic debit transactions, as opposed to the number and value of fraudulent transactions experienced across the industry. The Board also has revised comment 4(b)(2)(ii)–1 in recognition of the fact that an issuer may not be able to monitor the value of losses imposed on its cardholders by merchants. Rather, issuers must monitor the losses from fraudulent transactions that it passes on to its cardholders. Finally, the Board has revised comment 4(b)(2)(ii)–1 to emphasize that an issuer should establish procedures to retain fraud-related information necessary to perform its reviews under § 235.4(b)(3) and to retain and report information as required under § 235.8.
Section 235.4(b)(1)(iii) of the interim final rule requires an issuer to develop and implement policies and procedures reasonably designed to “respond appropriately to suspicious electronic debit transactions so as to limit the fraud losses that may occur and prevent the occurrence of future fraudulent electronic debit transactions.” Interim final rule comment 4(b)(1)(iii)–1 explains that whether an issuer's response to fraudulent or suspicious electronic debit transactions is appropriate depends on the circumstances and the risk of future fraudulent electronic debit transactions. The comment also provides examples of appropriate responses. Interim final rule comment 4(b)(1)(iii)–2 clarifies that an issuer's policies and procedures do not provide an appropriate response if they merely shift the loss to another party, other than the party that committed the fraud.
The Board received comments on this provision from two issuers. One issuer supported the Board's position that an “appropriate” response depends on the circumstances and suggested that the Board clarify that these “circumstances” include an issuer's debit card program, specific fraud experiences, and data analysis. Another issuer expressed concern that comment 4(b)(1)(iii)–2 could be construed in a manner that adversely affects the incentives and risks imposed by network rules (
The final rule retains the requirement that an issuer's policies and procedures address appropriate responses to suspicious electronic debit transactions. The Board, however, has revised § 235.4(b)(2)(iii) (interim final rule § 235.4(b)(1)(iii)) to clarify that an issuer's response should be designed to limit potential costs to all parties from fraudulent electronic debit transactions. The Board has made changes to comment 4(b)(2)(iii)–1 (interim final rule comment § 235.4(b)(1)(iii)–1) to clarify that the issuer's assessment of the risk of future fraudulent electronic debit transactions is one example of the facts and circumstances that determines the appropriateness of the response.
Interim final rule comment 4(b)(1)(iii)–2 provides that merely shifting the loss to another party is not an appropriate response to a suspicious electronic debit transaction. One commenter expressed concern that this statement could adversely affect network rules that allocate fraud losses. Interim final rule comment 4(b)(1)(iii)–2 was intended to emphasize that an issuer's response should mitigate the issuer's fraud losses in addition to the fraud losses of other parties. The Board, however, does not believe that interim final rule comment 4(b)(1)(iii)–2 is necessary to provide guidance on the appropriateness of an issuer's response to suspicious transactions in light of the clarifications to revised § 235.4(b)(2)(iii). Accordingly, the Board has removed the comment.
Section 235.4(b)(1)(iv) of the interim final rule requires an issuer to develop and implement policies and procedures reasonably designed to secure debit card and cardholder data. Interim final rule comment 4(b)(1)(iv) further explains that debit card and cardholder data should be secured during transaction processing, during storage by the issuer (or its service provider), and when carried on media by employees or agents of the issuer. That comment recognizes that this standard may be incorporated into an issuer's information security program required
One commenter suggested that the Board revise its commentary to require an issuer to secure debit card and cardholder data only when such data are transmitted by the issuer and not apply the requirement to situations where the issuer is receiving data, because the issuer cannot control the transmission of data from third parties. As set forth in the interim final rule, comment 4(b)(1)(iv) states that an issuer should secure debit card and cardholder data when the issuer or its service provider is the party transmitting or storing the data. Although the issuer may not have direct control over every piece of information transmitted by its service provider, the issuer should select a service provider that sufficiently secures data the service provider transmits that relates to the issuer's debit cards and cardholders' data. An issuer is not required to develop and implement policies and procedures that address the security of debit card and cardholder information when received and processed by third parties that are not acting as the issuer's agent. Accordingly, the Board has determined not to make any changes to § 235.4(b)(2)(iv) (interim final rule § 235.4(b)(1)(iv)) and the accompanying commentary as set forth in the interim final rule.
Section 235.4(b)(2) of the interim final rule requires an issuer to review its fraud-prevention policies and procedures at least annually and to update those policies and procedures as necessary to address changes in the prevalence and nature of fraudulent electronic debit transactions and available methods of detecting, preventing, and mitigating fraud. Interim final rule comment 4(b)(2) explains that an issuer may need to review and update its policies and procedures more frequently than once a year; an additional review could be necessary, for example, if there is a significant change in fraud types, fraud patterns, or fraud-prevention methods or technologies before an issuer's next-scheduled annual review. In addition, comment 4(b)(1)(i)–2 to the interim final rule provides that an issuer should assess of the effectiveness of the different authentication methods that the issuer enables its cardholders to use and that, if the issuer determines one method is more effective than the other, the issuer should consider practices to encourage its cardholders to use the more effective authentication method, as well as consider adopting new methods of authentication that are materially more effective than those currently available to its cardholders.
The Board received comments on both of these provisions related to an issuer's review of its policies and procedures. One issuer explicitly supported requiring issuers to review their fraud-prevention policies and procedures on an annual basis. This issuer also suggested that, rather than requiring additional reviews based on the undefined “significant change” in fraud or fraud patterns, an issuer should determine whether changes in fraud types, fraud patterns, or fraud-prevention technologies or methodologies have an impact on the issuer's policies and procedures that would require additional review of and update to its policies and procedures.
One issuer suggested that the Board revise the language in comment 4(b)(1)(i)–2 to the interim final rule to recognize that the effectiveness of an authentication method in preventing fraud is only one of many factors issuers consider in promoting a particular authentication method, and that other factors an issuer may consider include acceptance and cost. In addition, one issuer argued that whether a particular authentication method is “materially more effective” should be determined by each issuer and that issuers should not be required to adopt any specific authentication method.
Section 235.4(b)(3) of the final rule retains the requirement that an issuer review, at least annually, its fraud-prevention policies and procedures, and their implementation, and update them as necessary. The Board, however, has revised the review requirement to provide more guidance on the required elements of the reviews and when reviews and updates to an issuer's policies and procedures, and their implementation, are necessary.
Section 235.4(b)(3)'s review requirement is intended to ensure that an issuer continues to take effective steps to reduce fraudulent electronic debit transactions, including through the development and implementation of cost-effective technologies. Accordingly, the Board has revised the provision relating to an issuer's review to require an issuer to review its policies and procedures, and their implementation, in light of their effectiveness (§ 235.4(b)(3)(i)) and cost-effectiveness (§ 235.4(b)(3)(ii)). New comment 4(b)(3)–1.i provides that an issuer's assessment should consider whether its policies and procedures are reasonably designed to reduce the number and value of its fraudulent electronic debit transactions relative to its non-fraudulent electronic debit transactions and are cost effective.
The Board has made additional revisions to the interim final rule's requirement that an issuer update its policies and procedures, as necessary, “to address changes in the prevalence and nature of fraudulent electronic debit transactions and available methods of detecting, preventing, and mitigating fraud.” One reason for adopting the non-prescriptive approach to fraud-prevention standards is to ensure that an issuer has sufficient flexibility to adjust its fraud-prevention methods in light of the rapidly changing nature of fraud and the availability of fraud-prevention methods. For this flexibility to be most beneficial and effective in preventing fraudulent electronic debit transactions, an issuer must update its policies and procedures in light of the changing nature of fraud and availability of fraud-prevention methods. The Board, however, believes that the most important source of information to an issuer about types and methods of fraud is the issuer's own experience and information. The Board also believes the additional burden on issuers of continuous open-ended monitoring of the types of fraud and methods used to commit fraud throughout the industry may exceed the benefit of this information to the issuers. To the extent an issuer experiences changes in fraud types and methods, it should identify them through its monitoring and update its policies and procedures, as necessary, in light of the subsequent identification from its own experience.
In addition to its own experience, an issuer may learn of changes in the types of fraud, methods used to commit fraud, and available methods for detecting and preventing fraud from other sources. Specifically, payment card networks may provide their issuers with information regarding common types
New comment 4(b)(3)–2 provides that an issuer may need to review its policies and procedures more frequently than on an annual basis based on information obtained from monitoring its fraudulent electronic debit transactions, changes in the types or methods of fraud, and available fraud-prevention methods. The revised comment eliminates the “significant change” trigger in the interim final rule and requires an issuer to determine whether more frequent review is necessary. The Board considered the comments received on this provision and determined that objectively defining “significant change” could inhibit an issuer from more frequently reviewing its policies and procedures. Each issuer will have unique fraud-prevention programs, and a change in debit card fraud, industry fraud types and methods, and available fraud-prevention methods may be “significant” for one issuer, but not another issuer. Therefore, the Board believes that an issuer will be in the best position to determine whether changes in its debit card fraud, industry trends in fraud types and methods, and available fraud-prevention methods necessitate a more-frequent-than-annual review of its fraud-prevention programs. An issuer's determination as to the necessity of more frequent reviews and updates is subject to supervisory review under § 235.9.
The Board has added new comment 4(b)(3)–3 to provide guidance on the interaction between an issuer's required fraud-prevention program reviews and updates and an issuer's eligibility to receive the fraud-prevention adjustment under § 235.4. The required review of an issuer's fraud-prevention policies and procedures, and their implementation, is intended to ensure that an issuer's policies and procedures continue to be reasonably designed to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions. The review requirements also ensure that an issuer is assessing its fraud-prevention policies and procedures against changing fraud trends and available fraud-prevention methods. The Board anticipates that updates to an issuer's fraud-prevention policies and procedures may be necessary, although the Board does not expect substantial updates to be necessary often.
An issuer could be deterred from making necessary updates to its policies and procedures if an issuer becomes ineligible to receive the fraud-prevention adjustment after merely determining that any updates to its fraud-prevention program are necessary. In fact, one of the effective steps that an issuer can take to prevent fraudulent electronic debit transactions, and reduce the losses from such transactions, is to revise its fraud-prevention policies and procedures to make them more effective. Therefore, the Board has added new comment 4(b)(3)–3 to provide that an issuer does not become ineligible to receive the fraud-prevention adjustment merely because it determines updates are necessary or appropriate. In order to remain eligible to receive or charge a fraud–prevention adjustment under § 235.4, however, an issuer should develop and implement such updates as soon as reasonably practicable in light of the circumstances. For example, an issuer may determine that it should enable new card-authentication methods, and such new card-authentication methods require the reissuance of cards. Such an issuer should issue the new cards as soon as reasonably practicable in light of the process for ordering new cards and distributing them to cardholders. This process could take longer than, for example, improving algorithms on a neural network program it uses.
Section 235.4(c) of the interim final rule provides that, in order to be eligible to receive or charge a fraud-prevention adjustment, an issuer that satisfies the standards set forth in § 235.4(b) must certify its compliance to its payment card networks on an annual basis. The interim final rule does not establish a process for this certification and, instead, leaves it up to the payment card networks to develop their own processes for identifying issuers eligible for the adjustment. Interim final rule comment 4(c)–1.
The Board received several comments on the certification provision. Merchants and their trade groups generally opposed the certification provision because they believed that the issuers and networks would be the ultimate judges of whether an issuer's policies and procedures satisfy the Board's standards. One commenter expressed concern that placing the compliance determination with the network would lead each network to favor its own fraud-prevention technology. Commenters that opposed placing the compliance determination with issuers and networks suggested that, alternatively, issuers should be required to certify their compliance with the fraud-prevention standards to their regulator in order to ensure that issuers are receiving adjustments only when the issuer complies with the Board's standards. One commenter supported a network-certification requirement but only if such a requirement was limited to identifying which issuers have self-certified as complying with the Board's standards.
The Board also received comments on whether the Board should establish a uniform certification process, assuming the Board required some certification. Some issuers opposed establishing a uniform certification process in support of allowing industry participants to develop the process. These issuers argued that industry-established processes would enable more consistency with the network-established processes for identifying issuers that are exempt and not exempt from the interchange fee standard. One commenter thought a network-established process was appropriate because networks currently are able to ensure compliance with the network's fraud-prevention standards. By contrast, other commenters representing issuers supported the Board establishing a consistent certification process across networks to ensure that all issuers are treated fairly, provided that the process is sufficiently flexible to support operational and system differences across networks. Other commenters recommended that the Board establish a uniform certification process that would allow consumers and merchants to have access to compliance filings.
The final rule requires an issuer to inform its payment card networks, on an annual basis, of its compliance with the rule's fraud-prevention standards in
The Board also did not establish a uniform notification process in its final rule. In issuing the final rule implementing the other provisions of EFTA Section 920, the Board determined not to establish a uniform certification process for issuers that were exempt from the interchange fee standards or that issued debit cards that were exempt from the interchange fee standards.
The interim final rule does not explicitly address steps an issuer must take if it is found to be non-compliant with the Board's fraud-prevention standards by the Federal agency with responsibility for enforcing compliance with Regulation II. One network encouraged the Board to provide for a cure period in the event the Federal agency with responsibility to enforce an issuer's compliance under § 235.9 determined that a particular issuer was no longer eligible to receive a fraud-prevention adjustment. This network suggested that the Board allow such an issuer 90 to 180 days to come into compliance after a finding of a deficiency. This network also supported providing networks 30 days advance notice prior to the date on which an issuer may no longer receive a fraud-prevention adjustment in order to allow the network to reprogram its systems.
The Board has added new § 235.4(d) to the final rule to address a change in the issuer's compliance status. EFTA Section 920(a)(5) provides that the Board may allow for a fraud-prevention adjustment to the permissible interchange fee only if an issuer complies with the Board's fraud-prevention standards. As recognized in new comment 4(b)(3)–3, in the course of reviewing its fraud-prevention policies and procedures, an issuer may determine that updates are necessary. Likewise, the agency with responsibility for enforcing an issuer's compliance with Regulation II under § 235.9 also may identify updates that are necessary for an issuer to continue to be eligible to receive or charge a fraud-prevention adjustment. Merely determining that updates to its policies and procedures are necessary does not render an issuer ineligible to receive or charge a fraud-prevention adjustment; the Board anticipates that issuers may need to update their policies and procedures regularly to ensure their continued effectiveness and cost-effectiveness.
The Board believes that if an issuer is in substantial non-compliance with the Board's fraud-prevention policies and procedures, the issuer should not be eligible to receive a fraud-prevention adjustment. Under the non-prescriptive approach adopted by the Board, there are likely to be varying degrees of deficiencies in an issuer's fraud-prevention policies and procedures. Whether the deficiencies constitute substantial non-compliance will depend on the facts and circumstances, including the severity of the deficiencies. For example, an issuer's policies and procedures may fail to address appropriate responses to suspicious transactions as required by § 235.4(b)(2)(iii). Another issuer's policies and procedures may address appropriate responses to suspicious transactions, but the manner in which the response is made may be less effective in light of recent changes to fraud types experienced by the issuer. Failure to address an entire category of fraud-prevention activity could be one circumstance in which an issuer is substantially non-compliant with the Board's fraud-prevention standards.
New § 235.4(d) provides that an issuer is not eligible to receive or charge a fraud-prevention adjustment if the issuer is substantially noncompliant with the Board's fraud-prevention standards in § 235.4(b). A finding of substantial noncompliance would be made by the issuer or the Federal agency with responsibility for enforcing an issuer's compliance with Regulation II under § 235.9. New § 235.4(d) also provides that an issuer found to be substantially noncompliant with the Board's standards must notify its payment card networks that it is no longer eligible to receive or charge a fraud-prevention adjustment no later than 10 days after determining or receiving notification from the appropriate agency under § 235.9 that the issuer is substantially noncompliant. In addition, the issuer must stop receiving and charging the fraud-prevention adjustment no later than 30 days after notifying its payment card networks. This is the amount of time that a network-commenter suggested as the minimum amount of time necessary for a network to reprogram its interchange fee schedules. The Board does not believe it is necessary to incorporate a cure period in the final rule because the need to regularly update an issuer's policies and procedures does not make the issuer ineligible to receive the fraud-prevention adjustment, assuming the updates are made on a timely basis. Moreover, the Board does not believe that issuers in substantial noncompliance with the Board's standards should be entitled to receive the fraud-prevention adjustment during a cure period.
In addition, the final rule does not specify the steps an issuer must take to become eligible to receive the fraud-prevention adjustment after it has come into compliance. A determination of substantial non-compliance will be made by the appropriate agency under § 235.9. The Board believes that it is appropriate for that agency to determine the steps an issuer must take to satisfy the agency that the issuer has remedied deficiencies in its fraud-prevention program.
Section 904(a)(2) of the EFTA requires the Board to prepare an economic analysis of the impact of the regulation that considers the costs and benefits to financial institutions, consumers, and other users of electronic fund transfers. The analysis must address the extent to which additional paperwork would be required, the effect upon competition in the provision of electronic fund transfer services among large and small financial institutions, and the availability of such services to different classes of consumers, particularly low income consumers.
The Section-by-Section Analysis above, as well as the Final Regulatory Flexibility Analysis and Paperwork Reduction Act analysis below, contain a more detailed discussion of the costs and benefits of various aspects of the proposal. This discussion is incorporated by reference in this section.
As permitted by Section 920(a)(5) of the EFTA, this final rule allows an issuer that is subject to the interchange fee standards to receive or charge an amount of no more than 1 cent per transaction in addition to its interchange transaction fee if the issuer develops and implements policies and procedures that are reasonably designed to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions.
The collection of information required by this final rule is found in § 235.4 of Regulation II (12 CFR part 235). The new paperwork requirements of this final rule are discussed below in the Paperwork Reduction Act section, which contains a more detailed estimate for burden hours for being eligible to receive or charge the fraud-prevention adjustment. This final rule does not impose additional paperwork requirements related to the reporting to the Board required under § 235.8; issuers that do not qualify for the small issuer exemption (“covered issuers”) would be required to provide cost data to the Board independent of whether they qualify for the fraud-prevention adjustment. Covered issuers also would be required under § 235.8 to retain records that demonstrate compliance with the requirements of Regulation II for not less than five years after the end of the calendar year in which the electronic debit transaction occurred. If an issuer receives actual notice that it is subject to an investigation by an enforcement agency, the issuer must retain the records until final disposition of the matter. For smaller institutions that are not required to submit cost information to the Board under Regulation II, the regulation does not impose any reporting requirements.
As required by EFTA Section 920(a)(6), Regulation II exempts small issuers (i.e., those issuers that, together with affiliates, have consolidated assets of less than $10 billion) from the interchange fee standards, as well as the provisions relating to the fraud-prevention standards and adjustment. Regulation II, however, does not mandate that payment card networks adopt a two-tier interchange fee structure in which exempt issuers receive higher interchange fees. Since the interchange fee provisions of Regulation II (including the 1-cent fraud-prevention adjustment) became effective on October 1, 2011, most payment card networks have offered a two-tier interchange fee structure in which exempt issuers receive higher average interchange fees than those received by non-exempt issuers.
Some covered issuers may find that the additional cost of complying with the fraud-prevention standards are greater than the additional revenue generated from receiving the adjustment and so choose to not qualify for the adjustment. To the extent payment card networks provide the adjustment, covered issuers that qualify for the adjustment will likely experience an increase in their interchange revenue compared to covered issuers that do not qualify for the adjustment. In such a situation, covered issuers that do not qualify for the adjustment may need to adjust fees and account terms in response to the lower interchange revenue, whereas covered issuers that qualify may not. Under this scenario, consumers may shift their purchases of some financial services from covered issuers that do not qualify for the adjustment to exempt issuers or covered issuers that qualify for the adjustment in response to changes in fees and account terms at covered issuers that do not qualify for the adjustment. However, covered issuers that do not qualify for the adjustment and that have diversified product lines may look to retain customers by promoting alternative products not covered by the interchange fee standards, such as credit cards.
The competitive effects of any changes in fees or account terms across covered and exempt issuers due to the adjustment will depend on the degree of substitution among exempt issuers, covered issuers that qualify for the adjustment, and covered issuers that do not qualify for the adjustment. If the degree of substitutability of debit card and account services between covered issuers that qualify for the adjustment and covered issuers that do not qualify is large, then substantial shifts in the customer market share of each group of issuer may occur in response to less favorable changes in fees and account terms by issuers which do not qualify for the adjustment. Conversely, if
As the previous analysis suggests, the effect on competition among covered and exempt financial institutions will depend on a number of factors, including the extent to which payment card networks retain two-tier fee structures, the differentials in interchange fees across tiers in such structures, the product and service lines offered by covered and exempt financial institutions, and the substitutability of products and services across covered and exempt financial institutions. As noted above, most debit card networks have implemented two-tier fee structures. There is, however, no requirement that the networks continue to do so, and the level of interchange fees that will prevail in the long term is not known and will depend on market dynamics. Prior economic research suggests that competition between large and small depository institutions is weaker than competition within either group of institutions, likely because these institutions serve different customer bases.
The ultimate effect of the final rule on consumers will depend on the behavior of various participants in the debit card market. Specifically, the effect of the rule on any individual consumer will depend on a variety of factors, including the consumer's current payment behavior (e.g., cash user or debit card user), changes in the consumer's payment behavior, the competitiveness of the merchants from which the consumer makes purchases, changes in merchant payment method acceptance, and changes in the behavior of banks.
For low-income consumers, to the extent that fees and other account terms become more attractive as a result of the issuer receiving the adjustment, some low-income consumers may be more willing or more able to obtain debit cards and related deposit accounts. Similarly, more attractive fees and account terms may cause certain low-income consumers who previously did not hold debit cards and deposit accounts to use those products. At the same time, however, low-income consumers who currently use cash for purchases may face higher prices at the point of sale if retailers that they frequent set higher prices to reflect higher costs of debit card transactions because of the adjustment. Therefore, the net effect on low-income consumers will depend on various factors, including each consumer's payment and purchase behavior, as well as market responses to the rule.
EFTA Section 904(a)(3) provides that “to the extent practicable, the Board shall demonstrate that the consumer protections of the proposed regulations outweigh the compliance costs imposed upon consumers and financial institutions.” Based on the analysis above and in the Section-by-Section Analysis, the Board cannot, at this time, determine whether the benefits to consumers exceed the possible costs to financial institutions. The overall effects of the final rule on financial institutions and on consumers are dependent on a variety of factors, and the Board cannot predict the market response to the final rule.
A final regulatory flexibility analysis (RFA) was included in the interim final rule in accordance with Section 3(a) of the Regulatory Flexibility Act, 5 U.S.C. 601
The RFA requires an agency to prepare a final regulatory flexibility analysis (FRFA) unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. The Board believes it is possible, but unlikely, that the fraud-prevention provisions in Regulation II will have a direct, significant economic impact on a substantial number of small entities.
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As mentioned above and in the preamble to the Board's final rule implementing the other provisions of EFTA Section 920, the Board is monitoring the effectiveness of the exemption for small issuers. The Board also publishes annual lists of institutions above and below the small issuer exemption asset threshold in order to reduce the administrative burden associated with identifying small issuers that qualify for the exemption. Based on information reported to the Board by payment card networks, the average interchange fee received by exempt issuers in the fourth quarter of 2011, following the implementation of the interchange fee standard, was about the same as the amount they received in 2009.
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In accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501—3521; 5 CFR Part 1320 Appendix A.1), the Board has reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget (OMB). The Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid OMB control number. The OMB control number will be assigned.
On July 20, 2011, notice of the interim final rule was published in the
The final rule contains requirements subject to the PRA. The collection of information required by this final rule is found in § 235.4 of Regulation II (12 CFR part 235). Under the final rule, if an issuer meets standards set forth by the Board, it may receive or charge an adjustment of no more than 1 cent per transaction to any interchange transaction fee it receives or charges in accordance with § 235.3.
To be eligible to receive the fraud-prevention adjustment under § 235.4(a)(1), an issuer must develop and implement policies and procedures reasonably designed to take effective steps to reduce the occurrence of, and costs to all parties from, fraudulent electronic debit transactions, including through the development and implementation of cost-effective fraud-prevention technology. An issuer's policies and procedures must address (1) methods to identify and prevent fraudulent electronic debit transactions; (2) monitoring of the volume and value of its fraudulent electronic debit transactions; (3) appropriate responses to suspicious electronic debit transactions in a manner designed to limit the costs to all parties from and prevent the occurrence of future fraudulent electronic debit transactions; (4) methods to secure debit card and cardholder data; and (5) such other factors as the issuer considers appropriate.
An issuer must review its fraud-prevention policies and procedures, and their implementation, at least annually, and update them as necessary in light of (i) their effectiveness in reducing the occurrence of, and cost to all parties from, fraudulent electronic debit transactions involving the issuer; (ii) their cost-effectiveness; and (iii) changes in the types of fraud, methods used to commit fraud, and available methods of detecting and preventing fraudulent electronic debit transactions that the issuer identifies from (A) its own experience or information; (B) information provided to the issuer by its payment card networks, law enforcement agencies, and fraud-monitoring groups in which the issuer participates; and (C) applicable supervisory guidance. Finally, an issuer must notify the payment card networks in which the issuer participates, on an annual basis, of its compliance with the Board's standards, as well as of its substantial noncompliance, as determined by the issuer or Federal agency with responsibility for enforcing the issuer's compliance with Regulation II. The final rule will be effective on October 1, 2012.
The final rule will apply to issuers that, together with their affiliates, have consolidated assets of $10 billion or more. The Board estimates that there are as many as 564 chartered issuers required to comply with the recordkeeping and reporting provisions under § 235.4.
The Board estimates that the 564 issuers will take, on average, 160 hours (one month) to develop and implement policies and train appropriate staff to comply with the recordkeeping provisions under § 235.4. This one-time annual PRA burden is estimated to be 90,240 hours. On a continuing basis, the Board estimates issuers will take, on average, 40 hours (one business week) annually to review its fraud prevention policies and procedures, updating them as necessary, and estimates the annual PRA burden to be 22,560 hours. The Board estimates 564 issuers will take, on average, 30 minutes to comply with the disclosure provision under § 235.4(c) (annual notification), and estimates the annual reporting burden to be 282 hours. Lastly, the Board estimates 564 issuers will take, on average, 30 minutes to comply with the disclosure requirement under § 235.4(d) (change in status), and estimates the annual reporting burden to be 283 hours. The total annual PRA burden for this information collection is estimated to be 113,364 hours.
The Federal Reserve has a continuing interest in the public's opinions of our collections of information. At any time, comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for reducing the burden, may be sent to: Secretary, Board of Governors of the Federal Reserve System, Washington, DC 20551 Paperwork Reduction Project (Docket # R–1404), Washington, DC 20503.
Section 722 of the Gramm-Leach-Bliley Act of 1999 (12 U.S.C. 4809) requires the Board to use “plain language” in all final rules published after January 1, 2000. The Board has sought to present this final rule in a simple and straight forward manner. The Board received no comments on whether the interim final rule was clearly stated and effectively organized, or on how the Board might make the text of the rule easier to understand.
Banks, banking, Debit card routing, Electronic debit transactions, and Interchange transaction fees.
For the reasons set forth in the preamble, the Board amends Title 12, Chapter II of the Code of Federal Regulations as follows:
15 U.S.C. 1693o–2.
(a)
(b)
(2) An issuer's policies and procedures must address—
(i) Methods to identify and prevent fraudulent electronic debit transactions;
(ii) Monitoring of the volume and value of its fraudulent electronic debit transactions;
(iii) Appropriate responses to suspicious electronic debit transactions in a manner designed to limit the costs to all parties from and prevent the occurrence of future fraudulent electronic debit transactions;
(iv) Methods to secure debit card and cardholder data; and
(v) Such other factors as the issuer considers appropriate.
(3) An issuer must review, at least annually, its fraud-prevention policies and procedures, and their implementation and update them as necessary in light of—
(i) Their effectiveness in reducing the occurrence of, and cost to all parties from, fraudulent electronic debit transactions involving the issuer;
(ii) Their cost-effectiveness; and
(iii) Changes in the types of fraud, methods used to commit fraud, and available methods for detecting and preventing fraudulent electronic debit transactions that the issuer identifies from—
(A) Its own experience or information;
(B) Information provided to the issuer by its payment card networks, law enforcement agencies, and fraud-monitoring groups in which the issuer participates; and
(C) Applicable supervisory guidance.
(c)
(d)
1. An issuer's policies and procedures should address fraud related to debit card use by unauthorized persons. Examples of use by unauthorized persons include, but are not limited to, the following:
i. A thief steals a cardholder's wallet and uses the debit card to purchase goods, without the authority of the cardholder.
ii. A cardholder makes a purchase at a merchant. Subsequently, the merchant's employee uses information from the debit card to initiate a subsequent transaction, without the authority of the cardholder.
iii. A hacker steals cardholder account information from the issuer or a merchant processor and uses the stolen information to make unauthorized card-not-present purchases or to create a counterfeit card to make unauthorized card-present purchases.
2. An issuer's policies and procedures must be designed to reduce fraud, where cost effective, across all types of electronic debit transactions in which its cardholders engage.
3. An issuer's policies and procedures must be designed to take effective steps to reduce both the occurrence of and costs to all parties from fraudulent electronic debit transactions. An issuer should take steps reasonably designed to reduce the number and value of its fraudulent electronic debit transactions relative to its non-fraudulent electronic debit transactions. These steps should reduce the costs from fraudulent transactions to all parties, not merely the issuer. For example, an issuer should take steps to reduce the number and value of its fraudulent electronic debit transactions relative to its non-fraudulent transactions whether or not it bears the fraud losses as a result of regulations or network rules.
4. For any given issuer, the number and value of fraudulent electronic debit transactions relative to non-fraudulent transactions may vary materially from year to year. Therefore, in certain circumstances, an issuer's policies and procedures may be effective notwithstanding a relative increase in the transactions that are fraudulent in a particular year. However, continuing increases in the share of fraudulent transactions would warrant further scrutiny.
5. In determining which fraud-prevention technologies to implement or retain, an issuer must consider the cost-effectiveness of the technology, that is, the expected cost of the technology relative to its expected effectiveness in controlling fraud. In evaluating the cost of a particular technology, an issuer should consider whether and to what extent other parties will incur costs to implement the technology, even though an issuer may not have complete information about the costs that may be incurred by other parties, such as the cost of new merchant terminals. In evaluating the costs, an issuer should consider both initial implementation costs and ongoing costs of using the fraud-prevention method.
6. An issuer need not develop fraud-prevention technologies itself to satisfy the standards in § 235.4(b). An issuer may implement fraud-prevention technologies that have been developed by a third party that the issuer has determined are appropriate under its own policies and procedures.
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i. Practices to help determine whether a card is authentic and whether the user is authorized to use the card at the time of a transaction. For example, an issuer may specify the use of particular authentication technologies or methods, such as dynamic data, to better authenticate a card and cardholder at the time of the transaction, to the extent doing so does not inhibit the ability of a merchant to direct the routing of electronic debit transactions for processing over any payment card network that may process such transactions. (
ii. An automated mechanism to assess the risk that a particular electronic debit transaction is fraudulent during the authorization process (
iii. Practices to support reporting of lost and stolen cards or suspected incidences of fraud by cardholders or other parties to a transaction. As an example, an issuer may promote customer awareness by providing text alerts of transactions in order to detect fraudulent transactions in a timely manner. An issuer may also report debit cards suspected of being fraudulent to their networks for inclusion in a database of potentially compromised cards.
1. Tracking its fraudulent electronic debit transactions over time enables an issuer to assess whether its policies and procedures are effective. Accordingly, an issuer must include policies and procedures designed to monitor trends in the number and value of its fraudulent electronic debit transactions. An effective monitoring program would include tracking issuer losses from fraudulent electronic debit transactions, fraud-related chargebacks to acquirers, losses passed on to cardholders, and any other reimbursements from other parties. Other reimbursements could include payments made to issuers as a result of fines assessed to merchants for noncompliance with Payment Card Industry (PCI) Data Security Standards or other industry standards. An issuer should also establish procedures to track fraud-related information necessary to perform its reviews under § 235.4(b)(3) and to retain and report information as required under § 235.8.
1. An issuer may identify transactions that it suspects to be fraudulent after it has authorized or settled the transaction. For example, a cardholder may inform the issuer that the cardholder did not initiate a transaction or transactions, or the issuer may learn of a fraudulent transaction or possibly compromised debit cards from the network, the acquirer, or other parties. An issuer must implement policies and procedures designed to provide an appropriate response once an issuer has identified suspicious transactions to reduce the occurrence of future fraudulent electronic debit transactions and the costs associated with such transactions. The appropriate response may differ depending on the facts and circumstances, including the issuer's assessment of the risk of future fraudulent electronic debit transactions. For example, in some circumstances, it may be sufficient for an issuer to monitor more closely the account with the suspicious transactions. In other circumstances, it may be necessary to contact the cardholder to verify a transaction, reissue a card, or close an account. An appropriate response may also require coordination with industry organizations, law enforcement agencies, and other parties, such as payment card networks, merchants, and issuer or merchant processors.
1. An issuer must implement policies and procedures designed to secure debit card and cardholder data. These policies and procedures should apply to data that are transmitted by the issuer (or its service provider) during transaction processing, that are stored by the issuer (or its service provider), and that are carried on media (
1. i. An issuer's assessment of the effectiveness of its policies and procedures should consider whether they are reasonably designed to reduce the number and value of fraudulent electronic debit transactions relative to non-fraudulent electronic debit transactions and are cost effective. (
ii. An issuer must also assess its policies and procedures in light of changes in fraud types (
2. An issuer should review its policies and procedures and their implementation more frequently than annually if the issuer determines that more frequent review is appropriate based on information obtained from monitoring its fraudulent electronic debit transactions, changes in the types or methods of fraud, or available methods of detecting and preventing fraudulent electronic debit transactions. (
3. In light of an issuer's review of its policies and procedures, and their implementation, the issuer may determine that updates to its policies and procedures, and their implementation, are necessary. Merely determining that updates are necessary does not render an issuer ineligible to receive or charge the fraud-prevention adjustment. To remain eligible to receive or charge a fraud-prevention adjustment, however, an issuer should develop and implement such updates as soon as reasonably practicable, in light of the facts and circumstances.
1. Payment card networks that plan to allow issuers to receive or charge a fraud-prevention adjustment can develop processes for identifying issuers eligible for this adjustment. Each issuer that wants to be eligible to receive or charge a fraud-prevention adjustment must notify annually the payment card networks in which it participates of its compliance through the networks' processes.
By order of the Board of Governors of the Federal Reserve System.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Sweetwater, TX. Additional controlled airspace is necessary to accommodate new Area Navigation (RNAV) Standard Instrument Approach Procedures at Avenger Field Airport. The airport's geographic coordinates are adjusted and the airport name changed. The FAA is taking this action to enhance the safety and management of Instrument Flight Rule (IFR) operations at the airport.
Effective date: 0901 UTC, November 15, 2012. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
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 May 21, 2012, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Avenger Field Airport (formerly Avenger Field), Sweetwater, TX. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates of the airport are updated 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. 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 Avenger Field Airport, Sweetwater, TX.
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 6.6-mile radius of Avenger Field Airport, and within 2.5 miles each side of the 348° bearing from the Sweetwater RBN extending from the 6.6-mile radius to 7.4 miles north of the airport, and within 2 miles each side of the 174° bearing from the airport extending from the 6.6-mile radius to 12 miles south of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Battle Creek, MI. Additional controlled airspace is necessary to accommodate new Area Navigation (RNAV) Standard Instrument Approach Procedures at W.K. Kellogg Airport. The airport's geographic coordinates also are adjusted. The FAA is taking this action to enhance the safety and management of Instrument Flight Rule (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 May 21, 2012, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at W.K. Kellogg Airport, Battle Creek, MI. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates are updated 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. 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 W.K. Kellogg Airport, Battle Creek, MI.
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-mile radius of W.K. Kellogg Airport, and within 4 miles each side of the 222° bearing from the airport extending from the 7-mile radius to 11.7 miles southwest of the airport, and within 4 miles each side of the 049° bearing from the airport extending from the 7-mile radius to 10.9 miles northeast of the airport, and within 2 miles each side of the 126° bearing from the airport extending from the 7-mile radius to 11.1 miles southeast of the airport, and within 7 miles northwest and 4.4 miles southeast of the Battle Creek ILS localizer northeast course extending from the 7-mile radius to 10.4 miles northeast of the BATOL LOM/NDB.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Lemmon, SD. Additional controlled airspace is necessary to accommodate new Area Navigation (RNAV) Standard Instrument Approach Procedures at Lemmon Municipal Airport. The airport's geographic coordinates also are adjusted. The FAA is taking this action to enhance the safety and management of Instrument Flight Rule (IFR) operations at the airport.
Effective date: 0901 UTC, November 15, 2012. The Director of the Federal Register approves this incorporation by reference action under 1 CFR Part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
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 May 21, 2012, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Lemmon Municipal Airport, Lemmon, SD. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates are updated 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. 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 Lemmon Municipal Airport, Lemmon, SD.
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 6.4-mile radius of Lemmon Municipal Airport; and that airspace extending upward from 1,200 feet above the surface bounded on the north by lat. 46°10′00″ N., on the east by V–169, on the south by lat. 45°33′00″ N., and on the west by V–491, northbound to lat. 45°45′00″, thence eastbound to lat. 45°45′00″ N., long. 102°09′00″ W., thence northwest bound to lat. 46°10′00″ N., long. 102°34′00″ W.;, and within a 30-mile radius of lat. 45°47′29″ N., long. 101°51′13″ W.
Coast Guard, DHS.
Notice of availability.
The Coast Guard announces the availability of the 2012 program calendar for the on-water activities associated with the “2012 America's Cup World Series” regatta scheduled for August 21–26, 2012, on the waters of San Francisco Bay adjacent to the City of San Francisco waterfront in the vicinity of the Golden Gate Bridge and Alcatraz Island.
This notice of availability is effective on August 3, 2012.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2011–0551 and are available online by going to
If you have questions on this notice, call or email Lieutenant DeCarol Davis, Coast Guard Sector San Francisco, U.S. Coast Guard; telephone (415) 399–7443, email
The Coast Guard established a special local regulation and a safety zone for the sailing regattas being conducted on the waters of San Francisco Bay associated with the 34th America's Cup sailing events taking place adjacent to the City of San Francisco waterfront in the vicinity of the Golden Gate Bridge and Alcatraz Island. The special local regulation and safety zone regulate the on-water activities associated with the “2012 America's Cup World Series” regatta scheduled for August 21–26, 2012, and will temporarily restrict vessel traffic in a portion of the San Francisco Bay, prohibit vessels not participating in the America's Cup sailing events from entering the designated race area, and create a temporary safety zone around racing vessels (77 FR 41902, July 17, 2012).
This notice announces the availability of the 2012 program calendar referenced in the rulemaking published in association with the “2012 America's Cup World Series” regattas. This program calendar is available in the docket, as indicated in the
The Coast Guard may enforce the special local regulation and safety zone as early as noon on any program day. In general, however, the Coast Guard anticipates beginning enforcement approximately one hour before the first scheduled event on each program day, and ending enforcement as soon as possible after the last event on each program day. The Coast Guard will use a Broadcast Notice to Mariners to indicate when the zone is being enforced and when enforcement has ended and normal vessel operations may occur.
This notice is issued under the authority of 5 U.S.C. 552(a) and 33 CFR 1.05–1.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the US 90 (Danzinger) Bridge across the Inner Harbor Navigational Canal, mile 3.1, at New Orleans, LA. The deviation is necessary to replace the wire rope lifting cables, and for the rehabilitation of most electrical motors and components, most mechanical components and the operator house. This deviation allows the bridge to remain closed to navigation for 48 consecutive hours in late August and for 30 consecutive days in September and October.
This deviation is effective from 6 p.m. on Monday, August 27, 2012 until 11:59 p.m. on Saturday, October 6, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0719 and are available online by going to
If you have questions on this rule, call or email David Frank, Bridge Administration Branch, Coast Guard; telephone 504–671–2128, email
The Louisiana Department of Transportation and Development has requested a temporary deviation from the operating schedule of the US 90 (Danzinger) Bridge across the Inner Harbor Navigational Canal, mile 3.1, at New Orleans, LA. The vertical clearance of the bridge in the closed-to-navigation position is 50 feet above Mean High Water, elevation 5.0 feet Mean Sea Level.
In accordance with 33 CFR 117.458(b), the draw of the US90 (Danzinger) Bridge, mile 3.1, shall open on signal, except that, from 8 p.m. to 7 a.m. the draw shall open on signal if at least four hours notice is given, and the draw need not be opened from 7 a.m. to 8:30 a.m. and 5 p.m. to 6:30 p.m. Monday through Friday. This deviation allows the bridge to remain closed to navigation for 48 consecutive hours from 6 p.m. on Monday, August 27,
The closure is necessary to replace the wire rope lifting cables, and for the rehabilitation of most electrical motors and components, most mechanical components and the operator house. This maintenance is essential for the continued operation of the bridge. Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.
Navigation on the waterway consists of commercial and recreational vessels and sailboats and small tugs with and without tows. An alternate route is available via the Rigolets or Chef Menteur Pass. Vessels with vertical clearance requirements of less than 50 feet above Mean High Water may pass under the bridge while in the closed-to-navigation position.
Due to prior experience and coordination with waterway users, it has been determined that this closure will not have a significant effect on vessels that use the waterway.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
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 Route 1 Bridge across the Mystic River, mile 2.8, at Mystic, Connecticut. The deviation is necessary to facilitate bridge rehabilitation repairs at the bridge. Under this deviation the bridge may remain in the closed position November through April.
This deviation is effective from November 1, 2012 through April 15, 2013.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0678 and are available online at
If you have questions on this rule, call or email Ms. Judy K. Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 668–7165,
The Route 1 Bridge across the Mystic River at mile 2.8, has a vertical clearance of 4 feet at mean high water and 7 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.211.
The normal waterway users are predominantly recreational craft of various sizes.
The Coast Guard issued two previous temporary deviations, (75 FR 78163) effective from December 2, 2010 through April 15, 2011 and (76 FR 70348) effective from December 1, 2011 through April 15, 2012, to facilitate this major bridge rehabilitation project that allowed the Route 1 Bridge to remain closed during the winter months when the bridge rarely opens. Both previous temporary deviations achieved successful results without any problems or complaints from the mariners that normally transit the Mystic River.
The owner of the bridge, Connecticut Department of Transportation, has requested a third temporary deviation from the regulations to allow the bridge to remain in the closed position to complete rehabilitation repairs at the bridge.
Under this temporary deviation the Route 1 Bridge may remain in the closed position from November 1, 2012 through April 15, 2013, to facilitate completion of bridge rehabilitation repairs. Vessels that can pass under the bridge in the closed position may do so at any time.
The bridge has received few requests to open during this time period during the past three years. The waterway users were advised of the requested bridge closure and no objections were received.
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.
Coast Guard, DHS.
Delay of effective date for temporary deviation from regulations.
The Coast Guard is modifying the effective date of a published temporary deviation from the operating schedule that governs the Burlington Northern Santa Fe (BNSF) Railway Company swing span bridge across Bayou Boeuf, mile 10.2, at Amelia, St. Mary Parish, Louisiana. The modification of the date is necessary due to a delay in the scheduled arrival of repair equipment. The deviation is necessary to complete scheduled repairs necessitated by a bridge allision. This deviation allows the bridge to remain in the closed-to-navigation position for sixteen consecutive hours.
This deviation is effective from 7 a.m. through 11 p.m. on Thursday, September 13, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0652 and are available online by going to
If you have questions on this rule, call or email Jim Wetherington, Bridge Branch Office, Coast Guard; telephone 504–671–2128, email
On July 20, 2012, the Coast published a notice of temporary deviation from regulations in the
Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.
In accordance with 33 CFR 117.5, the bridge currently opens on signal for the passage of vessels. This deviation allows the vertical lift span of the bridge to remain in the closed-to-navigation position from 7 a.m. through 11 p.m. on Thursday, September 13, 2012.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is re-establishing a temporary safety zone in the Gulf Intracoastal Waterway, Mile Marker 35.2 to Mile Marker 35.5, west of Harvey Locks, bank to bank, Larose, Lafourche Parish, LA. This Safety Zone is needed to protect the general public, vessels and tows from destruction, loss or injury due to the installation of a new sheetpile floodwall on the waterward side of the existing Larose floodwall and construction of a new rip-rap barge impact barrier on the Gulf Intracoastal Waterway side of the new floodwall.
This rule is effective August 3, 2012 through January 1, 2013. This rule is enforceable with actual notice on July 1, 2012.
Documents mentioned in this preamble are part of docket [USCG–2012–0634]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call or email Ensign (ENS) Nicholas Jones, Coast Guard; telephone 985–857–8507 ext. 232, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. This rule re-establishes a safety zone necessary to protect life and property from hazards associated with the ongoing floodwall repair and construction project. The Coast Guard established the initial safety zone for this project in a Temporary Final Rule on January 25, 2012 at docket USCG–2011–1128 (77 FR 3609) to be enforced through June 30, 2012. The floodwall repair and construction project are still ongoing and this safety zone is needed immediately to ensure there is no gap in providing the necessary safety measures to protect personnel, general public, vessel and tows, and mariners from hazards associated with the ongoing floodwall repair and construction process. Publishing a NPRM would unnecessarily delay the effective date for this rule which would be contrary to the public interest. Delaying this project for the NPRM process would also interfere with the contractually imposed timeline for repair of the floodwall.
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is reestablishing the safety zone in the Gulf Intracoastal Waterway, Mile Marker 35.2 to Mile Marker 35.5, bank to bank, West of Harvey Locks. The U.S. Army Corps of Engineers contracted installation of a new sheetpile floodwall on the waterward side of the existing Larose Floodwall and construction of a new rip-rap barge impact barrier on the waterward side of the new floodwall. This construction and repair project is
The Coast Guard determined that reestablishing the temporary safety zone is needed during these operations. The legal basis and authorities for this rulemaking establishing a safety zone are found in 33 U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Public Law 107–295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.
The purpose of this safety zone is to protect life and property during the continued construction of the floodwall in Larose in the vicinity of GIWW Mile Marker 35.2 to Mile Marker 35.5. This construction project poses significant safety hazards to both vessels and mariners operating in the vicinity of GIWW Mile Maker 35.2 to Mile Marker 35.5.
The Coast Guard is reestablishing a temporary Safety Zone in the Gulf Intracoastal Waterway, Mile Marker 35.2–35.5, bank to bank, West of Harvey locks. The temporary Safety Zone will continue through January 1, 2013. Vessels and tows shall transit at slowest safe speed to minimize wake and, after leaving the slowest safe speed zone, proceed with caution to minimize interference with construction activities.
All work on the project is scheduled to be complete by January 1, 2013.
Continuing through January 1, 2013, two barges will be staged on the south side of the waterway at all times but will remain clear of the main channel limit. The COTP Morgan City or a designated representative will inform the public through Broadcast Notice to Mariners of changes in the effective and enforcement periods for the safety zone. This rule is enforceable with actual notice on July 1, 2012. Mariners can contact the contractor via VHF–FM channel 69.
Mariners shall transit at their slowest safe speed to minimize wake and proceed with caution while passing through the construction area.
Charts: 11355.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.
This rule creates a safety zone implementing slowest safe speed to minimize wake. Vessels will be allowed to enter and transit through the area. Advance notifications to the marine community regarding this safety zone and any restrictions or closures related to the floodwall repair and construction project will be made through Broadcast Notice to Mariners and Local Notice to Mariners. The impacts on routine navigation are expected to be minimal.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit through the Safety Zone through January 1, 2013. This Safety Zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The zone is limited in size, is of short duration and vessel traffic are allowed to transit through the safety zone at slowest safe speed.
If you are a small business entity and are significantly affected by this regulation, please contact ENS Nicholas Jones, Marine Safety Unit Houma, at (985) 857–8507 ext. 232.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34) (g.), of the Instruction. This rule will be in effect until January 1, 2013, but is not expected to result in any significant adverse environmental impact as described in NEPA.
An environmental analysis checklist and a categorical exclusion determination will be provided and made available at the docket as indicated in the
Harbors, Marine safety, Navigation (water, Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(1) In accordance with the general regulations in § 165.23 of this part, entry into this zone should be at slowest safe speed to minimize wake through the duration of this rule. During waterway closures entry into this zone is prohibited unless authorized by the Captain of the Port Morgan City.
(2) Mariners shall transit from Mile Marker 35.2 to Mile Marker 35.5 and pass at slowest safe speed to minimize wake.
(3) Mariners should contact the attendant tug on VHF–FM Channel 69 prior to arrival at the construction site for information regarding available horizontal clearance and passing instructions.
(4) All persons and vessels shall comply with the instructions of the Captain of the Port Morgan City and designated on-scene patrol personnel. On-scene patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.
(5) Advance notification of any anticipated waterway closures will be made through Broadcast Notice to Mariners and Local Notice to Mariners. During a closure, vessels requiring entry into or passage through the Safety Zone must request permission from the Captain of the Port Morgan City, or a designated representative and passage will be considered on a case-by-case basis. They may be contacted on VHF Channel 11, 13, or 16, or by telephone at (985) 380–5370.
Environmental Protection Agency (EPA).
Final rule.
This document contains minor amendments to regulations under the Federal Insecticide, Fungicide (FIFRA), and Rodenticide Act, the Federal Food, Drug, and Cosmetic Act (FFDCA), and the Toxic Substances Control Act (TSCA). These amendments will make EPA's regulations more accurate and user friendly with regard to the name of the EPA office that administers these statutes and various Agency addresses.
This rule is effective August 3, 2012.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPPT–2010–0629, is available at
Jonah H. Richmond, Regulatory Coordination Staff (7101M), Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (202) 564–0210; email address:
This action is directed to the public in general. Since this action may apply to anyone, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 533(b)(3)(B)) provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment. These changes update the organizational name of the EPA office responsible for administration of FIFRA, FFDCA section 408, and TSCA, and correct various Agency addresses. Notice and public comment on such changes is unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 533(b)(3)(B).
This final rule implements technical corrections and does not otherwise impose or change any requirements. As such, this action does not require review by OMB under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), the Paperwork Reduction Act (44 U.S.C. 3501
This action will not have substantial direct effects on State or Tribal governments, on the relationship between the Federal Government and States or Indian tribes, or on the distribution of power and responsibilities between the Federal Government and States or Indian tribes. As such, it will not have any “federalism implications” as described by Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10,1999) or “tribal implications” as described by Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Nor does it 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 (NTTAA) (15 U.S.C. 272 note), environmental justice-related issues that would require consideration under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994), or otherwise involve anything that would have any adverse effect on the supply, distribution, or use of energy that would require consideration under Executive Order 13211, entitled “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).
In addition, since this action is not subject to notice-and-comment requirements under the APA or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure.
Therefore, 40 CFR chapter I is amended as follows:
5 U.S.C. 552.
The Assistant Administrator, Office of Chemical Safety and Pollution Prevention (OCSPP), serves as the principal adviser to the Administrator in matters pertaining to assessment and regulation of pesticides and toxic substances and is responsible for managing the Agency's pesticides and toxic substances programs under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food, Drug, and Cosmetic Act (FFDCA); the Toxic Substances Control Act (TSCA); the Pollution Prevention Act (PPA); and portions of several other statutes. The Assistant Administrator has responsibility for establishing Agency strategies for implementation and integration of the pesticides and the toxic substances programs under applicable Federal statutes; developing and operating Agency programs and policies for assessment and control of pesticides and toxic substances; developing recommendations for Agency priorities for research, monitoring, regulatory, and information-gathering activities relating to pesticides and toxic substances; developing scientific, technical, economic, and social databases for the conduct of hazard assessments and evaluations in support of toxic substances and pesticides activities; providing toxic substances and pesticides program guidance to EPA Regional Offices and monitoring, evaluating, and assessing pesticides and toxic substances program operations in EPA Headquarters and Regional Offices.
(a)
(b)
(c)
7 U.S.C. 135
These revisions read as follows:
Reorganization Plan No. 3 of 1970 (5 U.S.C. App.).
The official addresses, unless otherwise noted, are as follows:
(a)
(2)
(b)
(2)
(3)
(4)
7 U.S.C. 136d.
(l) * * *
(2) * * * Such judicial officer shall not be employed by the Office of Chemical Safety and Pollution Prevention or have any connection with the preparation or presentation of evidence for a hearing.
(s) The term
21 U.S.C. 346a, 371(a); Reorg. Plan No. 3 of 1970.
21 U.S.C. 346a, 371(a); Reorg. Plan No. 3 of 1970.
15 U.S.C. 2625 and 2665, 44 U.S.C. 3504.
The official addresses, unless otherwise noted, are as follows:
(a)
(2)
(b)
(2)
(3)
(4)
15 U.S.C. 2607(a).
15 U.S.C. 2607(d).
15 U.S.C. 2604, 2607, and 2613.
* * * Publically available docket materials are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
15 U.S.C. 2604.
15 U.S.C. 2604, 2607, 2613, and 2625.
* * * Publically available docket materials are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
15 U.S.C. 2605, 2607, 2611, 2614, and 2616.
15 U.S.C. 2605, 2607(c), 2643, and 2646.
(i) * * *
(5) * * * The method is available at the addresses in § 700.17(b)(1) and (2) of this chapter. * * *
15 U.S.C. 2603 and 2607.
* * * Publicly available docket materials are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
15 U.S.C. 2603.
(c) * * *
(2) * * *
(i) * * * Copies are available at the addresses in § 700.17(b)(1) and (2) of this chapter. * * *
15 U.S.C. 2603.
15 U.S.C. 2603, 2611, 2625.
(f) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(e) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(f) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(e) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(f) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(f) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(g) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(g) * * * These references are available at the addresses in § 700.17(b)(1) and (2).
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(g) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(h) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(i) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(g) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(f) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
(j) * * * These references are available at the addresses in § 700.17(b)(1) and (2) of this chapter.
Environmental Protection Agency (EPA).
Extension of deadline for promulgating designations.
The EPA is announcing that it is using its authority under the Clean Air Act (CAA) to extend by up to 1 year the deadline for promulgating initial area designations for the primary sulfur dioxide (SO
The new deadline for the EPA to promulgate designations for the 2010 primary SO
For questions regarding this action, contact Rhonda Wright, Air Quality Policy Division, Office of Air Quality Planning and Standards, Mail Code C539–04, Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: 919–541–1087; fax number: 919–541–0824; email address:
This preamble is organized as follows:
A. Area Designation Requirements
B. Summary of Designations Guidance Provided in the Proposed and Final SO
Entities potentially affected by this action include state, local, and tribal governments that would participate in the initial area designation process for the 2010 SO
The EPA has established a docket for designations for the 2010 SO
An electronic copy of this document is also available at
On June 2, 2010, the EPA Administrator signed a notice of final rulemaking that revised the primary SO
After the EPA establishes or revises a NAAQS pursuant to CAA section 109, the CAA directs the EPA and the states to begin taking steps to ensure that those NAAQS are met. The first step is to identify areas of the country that do or do not meet the new or revised NAAQS. This step is known as the initial area designations. Section 107(d)(1) of the CAA provides that, “By such date as the Administrator may reasonably require, but not later than 1 year after promulgation of a new or revised NAAQS for any pollutant under section 109, the Governor of each state shall * * * submit to the Administrator a list of all areas (or portions thereof) in the state” that designated those areas as nonattainment, attainment, or unclassifiable. The CAA defines an area as nonattainment if it is violating the NAAQS or if it is contributing to a violation in a nearby area.
The CAA further provides, “Upon promulgation or revision of a NAAQS, the Administrator shall promulgate the designations of all areas (or portions thereof) * * * as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised NAAQS. Such period may be extended for up to 1 year in the event the Administrator has insufficient information to promulgate the designations.”
After the states submit their recommendations, but no later than 120 days prior to promulgating designations, the EPA is required to notify a state of any intended modifications to the state's recommended designation. The state then has an opportunity to demonstrate why any proposed modification is inappropriate. Whether or not a state provides a recommendation, the EPA must promulgate the designation that the agency deems appropriate within two years of promulgation of the NAAQS (or within 3 years if the EPA extends the deadline).
For the June 2010 SO
We first explained our intentions for designations under the new SO
In the published June 22, 2010, final NAAQS rulemaking preamble, partly in response to comments on the proposal, the EPA described a different intended approach to issuing initial area designations in order to make it more consistent with what we then described as our historical approach to implementing the prior SO
The final NAAQS preamble also explained that the EPA received comments expressing concerns with the perceived burdens of implementing the proposed monitoring network as well as the sufficiency of its scope for purposes of identifying NAAQS violations (75 FR 35570). Some of these commenters suggested using modeling to determine the scope of monitoring requirements, or favored modeling over monitoring to determine attainment of the NAAQS (75 FR 35570). In response to these commenters, we explained our modified expectations at that time for issuing designations, as well as our intention to issue further modeling guidance (75 FR 35570). However, as we expected that it would take some time to issue guidance, and that modeling several hundred sources would represent a substantial burden, we clarified that we did not expect states to complete such modeling and incorporate their results in designations recommendations due in June 2011 (75 FR 35570). Rather, we expected states would generally submit designations recommendations of unclassifiable, and that most areas' informational records would be insufficient to support initial designations of either attainment or nonattainment (75 FR 35571).
In March 2011, the EPA then issued a memorandum, included in the docket for today's extension, providing non-binding guidance on designations for the 2010 primary SO
In this March 2011 Guidance, the EPA also discussed a suggested analytic approach that would use both air quality monitoring and modeling information (a “hybrid” modeling and monitoring approach) to determine if an area meets or does not meet the 2010 primary SO
In September 2011, the EPA issued a draft guidance document on SIP submissions for the 2010 primary SO
The EPA received several comments questioning the appropriateness of using the hybrid modeling and monitoring approach to demonstrate attainment of the SO
Commenters claimed that the EPA's guidance to date did not sufficiently enable sources and states to fully identify nearby contributing areas or determine the boundaries of possible nonattainment areas. Consequently, these commenters urged the EPA to take the additional time allowed under the CAA in situations where available data is insufficient before issuing initial designations and use that additional time to further refine and improve the EPA's expected overall approach to implementing the 1-hour SO
Subsequently, in April 2012, the EPA's Assistant Administrator for Air and Radiation sent letters to representatives of state and local government and tribal agencies that described the EPA's modified expectations regarding some SO
The EPA is still reviewing comments and has not yet determined whether to revise its overall approach for issuing initial designations. At the same time, the EPA has also received a notice of intent to sue from environmental advocacy stakeholders under CAA section 304(a)(2) for having missed the June 3, 2012, statutory deadline for issuing designations that applies in the absence of a determination by the EPA to take the extra year allowed under CAA section 107 based on insufficient data.
In light of the comments received on the September 2011 Guidance, including those regarding the timing and approach for issuing initial area designations, and the subsequent comments received as part of the stakeholder outreach process in May and June 2012, the EPA acknowledges that it remains significantly uncertain what analytic approach sources, states, and the EPA will consistently and cooperatively use to make the determinations required under the CAA with respect to both current and future air quality. Because the issues involved, and the comments received on the draft guidance, relate to determinations of both the boundaries of areas currently meeting or not meeting the NAAQS and whether such areas will or will not meet the NAAQS in the future, the EPA agrees that it should make effective use of the additional time allowed under the CAA to promulgate designations. The EPA has insufficient data at this time to promulgate designations, including where it is necessary to identify nearby contributing areas and to determine boundaries of possible nonattainment areas, which the EPA cannot expect to definitively determine with full cooperation of stakeholders in advance of resolving outstanding issues and uncertainty regarding the most appropriate implementation approach, including determining whether an area meets or does not meet the new NAAQS. Therefore, the EPA concludes that it currently has insufficient information to promulgate designations by June 2012, and intends under these circumstances to take additional time, up to 1 additional year, allowed under the CAA for promulgating initial designations for the 2010 primary SO
By taking the additional time, the EPA is now required under CAA section 107 to promulgate designations by June 3, 2013. The EPA expects to take additional time, as necessary, to appropriately assess designations. For some areas, EPA anticipates it will not be necessary to take the full additional year, and in those cases EPA will proceed sooner than June 2013. For example, the EPA intends to make its best effort to promulgate final designations for areas with monitored violations of the SO
Environmental protection, Air pollution control, National parks, Wilderness areas.
Environmental Protection Agency (EPA).
Final rule.
EPA is promulgating a rule that identifies provisions of Florida's Water Quality Standards for Phosphorus in the Everglades Protection Area (Phosphorus Rule) and Florida's Amended Everglades Forever Act (EFA) that EPA has disapproved and that therefore are not applicable water quality standards for purposes of the Clean Water Act. EPA is promulgating this final rule following EPA's disapproval of these provisions and EPA's specific directions to the State of Florida to correct these deficiencies in the Phosphorus Rule and EFA. EPA's disapproval, specific directions to the State, and this rule implement two orders by the U.S. District Court for the Southern District of Florida.
This final rule is effective September 4, 2012. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of September 4, 2012.
An electronic version of the public docket is available through the EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Mario Sengco, Standards and Health Protection Division, Office of Science and Technology, Mail Code: 4305T, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566–2676; email:
Citizens concerned with water quality in Florida may be interested in this rulemaking. Entities discharging phosphorus to waters upstream of the Everglades Protection Area could be indirectly affected by the Phosphorus Rule and EFA, although not specifically by this rule because the rule merely publishes the text changes that reflect the prior disapproval by the EPA of certain provisions of the Phosphorus Rule and EFA. Any indirect affect to entities would be because the water quality standards contained in the State's regulation and statute are used in determining National Pollutant Discharge Elimination System (NPDES) permit limits. With this in mind, categories and entities that ultimately may be indirectly affected include:
This table is not intended to be exhaustive, but rather provides a guide for entities that may be affected indirectly by this action. This table lists the types of entities of which EPA is now aware that potentially could be indirectly affected by this action. Other types of entities not listed in the table could also be affected directly or indirectly. Any parties or entities conducting activities within watersheds of the Florida waters covered by this rule, or who rely on, depend upon, influence, or contribute to the water quality of the Everglades Protection Area, might be indirectly affected by this rule. To determine whether your facility or activities may be affected by this action, you should examine the rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section, entitled
EPA is promulgating this rule to identify provisions of Florida's Water Quality Standards for Phosphorus in the Everglades Protection Area (Phosphorus Rule) and Florida's Amended Everglades Forever Act (EFA) that EPA has disapproved and that therefore are not applicable water quality standards for purposes of the Clean Water Act. EPA is promulgating this final rule following its disapproval of these provisions and EPA's specific directions to the State of Florida to correct these deficiencies in the Phosphorus Rule and EFA. EPA's disapproval and specific directions to the State implement two orders by the U.S. District Court for the Southern District of Florida. Pursuant to the Court's orders and consistent with Clean Water Act section 303(c), EPA provided the State a period of time to correct the deficiencies. The State has not corrected the deficiencies within that time period. Therefore, EPA is promulgating this rule. The rule incorporates by reference two documents that identify the specific provisions of Florida's Phosphorus Rule and EFA that are not applicable water quality standards for purposes of the Clean Water Act. The specific provisions that are not applicable water quality standards are indicated with “strikeout” text in the documents that are incorporated by reference into the Code of Federal Regulations.
Section 303(c) (33 U.S.C. 1313) of the Clean Water Act (CWA) directs States, with oversight by EPA, to adopt water quality standards to protect the public health and welfare, enhance the quality of water and serve the purposes of the CWA. Under section 303, States are required to develop water quality standards for waters of the United States within the State. Section 303(c) and EPA's implementing regulations (40 CFR part 131) provide that water quality standards shall include designated uses of the water and water quality criteria necessary to protect those uses.
States must submit any new or revised water quality standards for EPA review and approval/disapproval. EPA must approve/disapprove any new or revised standards within 60–90 days. (Section 303(c)(3)). If EPA disapproves any standard, EPA is to specify the changes to meet the requirements of the CWA. If the changes are not adopted by the State, EPA is to promulgate standards to address the necessary changes in the State standards that EPA has disapproved. In this rulemaking, EPA is identifying the portions of Florida's standards that EPA disapproved and that, after EPA notification of necessary changes, the State has not adopted through changes in State publications.
In 2005, the Florida Department of Environmental Protection (FDEP) submitted to EPA for review pursuant to CWA section 303(c), provisions of Florida Administrative Code (“FAC”) 62–302.540 entitled “Water Quality Standards for Phosphorus Within the Everglades Protection Area” (Phosphorus Rule or Rule). The Rule established a numeric water quality criterion for phosphorus as well as implementing provisions for the numeric criterion within the Everglades Protection Area. In 2005 and 2006, EPA issued a series of decisions approving certain provisions of the Phosphorus Rule and concluding that other provisions were not new or revised water quality standards and did not require EPA approval or disapproval under CWA section 303(c).
The Florida Legislature enacted the Everglades Forever Act in 1994 to maintain and restore the ecosystem of the Everglades. See
In consolidated litigation, environmental and Native American plaintiffs challenged (1) EPA's 2003 decision that the EFA amendments were not water quality standards and (2) EPA's 2005 and 2006 decisions regarding the Phosphorus Rule. In a July 29, 2008 decision, the U.S. District Court for the Southern District of Florida upheld in part and remanded in part EPA's decisions.
On December 3, 2009, EPA issued a new Determination in response to the Court's remand. Consistent with the Court's 2008 decision, EPA disapproved certain amendments to the EFA. It is those disapproved provisions of the EFA that are, in part, the subject of this rulemaking. In addition, EPA reviewed the provisions of the Phosphorus Rule that the Court either found were new or revised standards or that the Court had held EPA's prior approval invalid. Consistent with the Court's decision, EPA disapproved certain provisions of the Phosphorus Rule in December of 2009 and those disapproved provisions also are reflected in this final rulemaking.
Plaintiffs challenged EPA's December 2009 Determination, alleging, in part, that EPA failed to (1) specify the changes that Florida must make to the Phosphorus Rule and EFA to bring them into compliance with the CWA and (2) commit to promulgate if the State fails to act. The Court, in an order dated April 14, 2010, remanded EPA's 2009 Determination and ordered EPA to issue an Amended Determination (AD) by September 3, 2010.
Consistent with the Court's April 14, 2010 Order, EPA prepared an Amended Determination (AD) dated September 3, 2010. The AD directed the State of Florida to correct deficiencies in the Phosphorus Rule and Amended EFA. The AD included as attachments copies of the Phosphorus Rule and EFA with strikeout markings indicating the language changes necessary to meet Clean Water Act requirements. EPA's AD stated that if FDEP has not finalized revisions by January 1, 2011 and the Legislature has not enacted amendments to the EFA by July 1, 2011, then EPA would initiate rulemaking to promulgate the necessary changes consistent with the Court's Order.
Although FDEP initiated a rulemaking, with a notice of rule development published on March 26, 2010, to adopt the necessary revisions to the Phosphorus Rule and the EFA amendments consistent with EPA's AD, the State rulemaking agencies did not complete that process on the Phosphorus Rule changes by January 1, 2011. Nor has the State completed its rulemaking process on the Phosphorus Rule since that date. The Florida Legislature also did not introduce or enact any amendments to the EFA consistent with EPA's AD. The Florida Legislature adjourned and did not reconvene prior to July 1, 2011. Therefore, EPA proceeded, consistent with the Court's Order and EPA's AD, to initiate this rulemaking process to promulgate the proposed federal rulemaking identifying the necessary changes to the Phosphorus Rule and EFA to meet Clean Water Act requirements.
For the purposes of codifying the changes, EPA proposed to incorporate by reference into the Code of Federal Regulations copies of the Phosphorus Rule and EFA with the strikeout markings, identifying the provisions and language that are not applicable water quality standards for purposes of the CWA. EPA explained that the approach of incorporation by reference was the most appropriate among the approaches that the Agency considered to correct the deficiencies in the State's regulation and statute. Therefore, copies of the two documents to be incorporated were placed in the rulemaking docket. In addition, EPA identified the specific provisions of the Phosphorus Rule and EFA that are not applicable water quality standards for purposes of the CWA in Tables 1 and 2 of the proposal.
EPA further explained in the proposal that the remaining provisions of the Phosphorus Rule and EFA either (1) had already been approved by EPA as new or revised water quality standards (i.e., are applicable water quality standards for the purposes of the CWA), or (2) are not water quality standards subject to EPA review and approval (or disapproval) under the Clean Water Act. Therefore, EPA did not propose to promulgate any of the remaining provisions that EPA had previously approved or that are not water quality standards.
For the convenience of the reader and to improve the readability of the two documents to be incorporated by reference, EPA included in its proposal a few minor text changes to the Phosphorus Rule and EFA in the docket. These changes were identified by underline. EPA included these few text changes in a submission filed with the Court and the Court subsequently indicated that it would modify its April 2010 to reflect these changes. EPA added text when deletion of the disapproved language rendered the remaining text difficult to understand. For example, in EFA section 10, EPA added text to restore language that existed prior to enactment of EFA amendments. In these sections, EPA did not propose to establish new or revised water quality standards with these text changes. Similarly, for ease of readability, the docket versions of the Phosphorus Rule and Amended Everglades Forever Act struck the definitions of “optimization” (which corresponded to regulatory language already disapproved) from sections 2(l) and 3(f), as discussed in the proposed rule preamble.
The public was given an opportunity to review the proposed rule and provide comments over a thirty-day period.
To the extent EPA would be promulgating as federal regulations provisions of state water quality standards that EPA has approved (or provisions associated with approved water quality standards that are not themselves water quality standards), the CWA does not provide for such action. The CWA provides that when EPA approves a new or revised state water quality standard, “such standard shall thereafter be the water quality standard
Second, except for the disapproved provisions of the EFA amendments, EPA has not approved or disapproved the remaining provisions of the EFA (with one exception) as new or revised water quality standards under the Clean Water Act. Therefore, it would not be appropriate for EPA to promulgate such provisions as federal water quality standards.
Copies of the public comments and the EPA's responses can be found in the docket associated with this rulemaking (see instructions above under General Information).
For the convenience of persons reviewing this final rule, EPA has included copies of the Phosphorus Rule and Amended Everglades Forever Act in the docket that included the strikeout markings indicating the language that EPA identifies as not being applicable water quality standards for purposes of the CWA. The provisions of the Phosphorus Rule and EFA that are not applicable water quality standards for purposes of the CWA are summarized again here in Tables 1 and 2 below.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the provisions of the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this action on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
As a result of the disapproval action by EPA in December 2009, the Florida Department of Environmental Protection already needs to ensure that permits it issues do not implement the provisions identified in this rule because those provisions are not applicable water quality standards for purposes of the CWA. In doing so, the State will have a number of choices associated with permit writing. While Florida's implementation of the rule (and EPA's earlier disapprovals) might ultimately result in some new or revised permit conditions for some dischargers, including small entities, EPA's action today would not impose any of these as yet unknown requirements on small entities. Thus, I certify that this rule will not have a significant economic impact on a substantial number of small entities.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for State, local, or tribal governments or the private sector. This action merely clarifies the water quality standards concerning the Phosphorus Rule and the Amended EFA and does not impose any burden on anyone. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This action does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely clarifies the water quality standards concerning the Phosphorus Rule and the Amended EFA and does not apply to any government other than the State of Florida.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000) because this is an action in which the EPA has no discretion, i.e., EPA is mandated by the Court to take this action. Thus, Executive Order 13175 does not apply to this action. Nonetheless, consistent with the findings of the Executive Order and in response to a request from the Miccosukee Tribe submitted during the public comment period, EPA did choose to confer with the Tribe.
This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866 and because the Agency does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children.
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. This action is not subject to E.O. 12898 because this action merely clarifies the water quality standards concerning the Phosphorus Rule and the Amended EFA.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Incorporation by reference, Indians—lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control.
For the reasons set out in the preamble, EPA amends 40 CFR part 131 as follows:
33 U.S.C. 1251
(a)
(2) In the Phosphorus Rule, strike the following text:
(i) The entire paragraph (1)(a);
(ii) The entire paragraph (1)(b)(2);
(iii) The entire paragraph and subparagraphs (2)(b), (2)(c), (2)(d), (2)(e), (2)(e)(1), (2)(e)(2) and 2(f);
(iv) The entire paragraph (2)(h);
(v) The entire paragraph (2)(l);
(vi) The entire paragraphs (3)(a) and (3)(b);
(vii) The entire paragraph 3(f);
(viii) The entire paragraph (3)(h);
(ix) In (4)(d)(2)(c), the sentence, “If these limits are not met, no action shall be required, provided that the net improvement or hydropattern restoration provisions of subsection (6) below are met.”;
(x) The entire paragraph (5)(a);
(xi) The entire paragraph (5)(b)(2) and (5)(b)(3);
(xii) The entire paragraph (5)(d);
(xiii) The entire paragraph (6), including subparagraphs (6)(a), (6)(a)(1), (6)(a)(1)(a), (6)(a)(1)(b), (6)(a)(2), (6)(a)(3), (6)(a)(4), (6)(a)(5), (6)(b), (6)(b)(1), (6)(b)(2), (6)(b)(3), and (6)(c).
(b)
(2) In the Everglades Forever Act, strike the following text:
(i) The entire paragraph (2)(a);
(ii) In paragraph (2)(g), the phrase, “and further described in the Long-Term Plan.”;
(iii) The entire paragraph (2)(j);
(iv) The entire paragraph (2)(l);
(v) The entire paragraph (2)(p);
(vi) The entire paragraphs (3)(b), (3)(c), (3)(d) and (3)(e);
(vii) In sentence 9 of paragraph (4)(a), the phrase, “design, construction, and implementation of the initial phase of the Long-Term Plan, including operation and maintenance, and research for the projects and strategies in the initial phase of the Long-Term Plan, and including”;
(viii) In sentence 1 of subparagraph (4)(a)(4), the phrase, “however, the district may modify this schedule to incorporate and accelerate enhancements to STA 3/4 as directed in the Long-Term Plan;”;
(ix) The entire subparagraph (4)(a)(6);
(x) In subparagraph (4)(e)(2), the entire sentences 7, 8 and 9;
(xi) In subparagraph (4)(e)(3), the entire sentence 3;
(xii) In sentence 1 of paragraph (10), the phrase, “to implement the pre-2006 projects and strategies of the Long-Term Plan”, the phrase, “in all parts of the Everglades Protection Area”, and the phrase “and moderating provisions”;
(xiii) The entire paragraph (10)(a).
(3) EPA is not incorporating the text annotations added by hand to the Everglades Forever Act. These text inserts are included only for the convenience of the reader and to improve the readability of the document.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of rimsulfuron in or on chicory roots and tops. Interregional Research Project No. 4 (IR–4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 3, 2012. Objections and requests for hearings must be received on or before October 2, 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–2011–0563, is available at
Andrew Ertman, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–9367; 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–2011–0563 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 October 2, 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–2011–0563, by one of the following methods:
•
•
•
In the
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.”
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 support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for rimsulfuron including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with rimsulfuron follows.
In the
In that document the EPA concluded that there are no acute or cancer points of departure as well as no residential uses registered. EPA concluded that chronic exposure to rimsulfuron from food and water will utilize < 1% of the chronic population adjusted dose (cPAD) for children 1–2 years old, the population group receiving the greatest exposure. Therefore, EPA concluded that there is a reasonable certainty that no harm will result to the general population and to infants and children from aggregate exposure to rimsulfuron residues. Refer to the January 25, 2012
Adequate enforcement methodology (liquid chromatography with tandem mass spectroscopy (LC/MS/MS)) is available to enforce the tolerance expression. The method 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.
The Codex has not established a MRL for rimsulfuron on chicory.
Therefore, tolerances are established for residues of rimsulfuron,
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 “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4).
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule; technical amendment.
EPA issued a final rule in the
This final rule is effective August 3, 2012.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2010–0421; FRL–9355–6, is available either electronically through
Olga Odiott, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–9369; email address: o
The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
In the
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical amendment final without prior proposal and opportunity for comment, because this technical amendment only revises the terminology of two (2) commodities, with no other related changes to tolerance levels or any requirements of the final rule. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).
This technical amendment only revises the terminology of two commodities and does not otherwise change the original requirements of the final rule. As a technical amendment, this action is not subject to the statutory and Executive Order review requirements. For information about the statutory and Executive Order review requirements as they relate to the final rule, see Unit VI. in the
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Agricultural commodities, Pesticides and pest.
Therefore, 40 CFR part 180 is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Federal Communications Commission.
Final rule.
The Commission revises its Schedule of Regulatory Fees to recover an amount of $339,844,000 that Congress has required the Commission to collect for fiscal year 2012. Section 9 of the Communications Act of 1934, as amended, provides for the annual assessment and collection of regulatory fees under sections 9(b)(2) and 9(b)(3), respectively, for annual “Mandatory Adjustments” and “Permitted Amendments” to the Schedule of Regulatory Fees.
Effective September 4, 2012.
Roland Helvajian, Office of Managing Director at (202) 418–0444.
This is a summary of the Commission's Report and Order (R&O), FCC 12–76, MD Docket No. 12–116, adopted on July 13, 2012 and released on July 19, 2012.
1. This
2. The Commission will send a copy of this
3. As required by the Regulatory Flexibility Act of 1980 (“RFA”),
4. In this
5. In this
6. In this
7. Since FY 1999, the Commission has allocated the amount appropriated by Congress across the various fee categories, and then divided these allocated amounts by the number of estimated payment units in each fee category to determine the unit fee.
8. We then calculated the number of payment units subject to the fee. In some instances, Commission licensee databases were used in calculating payment units; in other instances, actual prior year payment records and/or industry and trade association projections were used (see Table C).
In order to calculate individual service fees for FY 2012, we adjusted FY 2011 payment units for each service to more accurately reflect expected FY 2012 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee databases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (“ULS”), International Bureau Filing System (“IBFS”), Consolidated Database System (“CDBS”) and Cable Operations and Licensing System (“COALS”), as well as reports generated within the Commission such as the Wireline Competition Bureau's
We sought verification for these estimates from multiple sources and, in all cases, we compared FY 2012 estimates with actual FY 2011 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated with sufficient accuracy. These include an unknown number of waivers and/or exemptions that may occur in FY 2012 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical, or other reasons. When we note, for example, that our estimated FY 2012 payment units are based on FY 2011 actual payment units, it does not necessarily mean that our FY 2012 projection is exactly the same number as in FY 2011. We have either rounded the FY 2012 number or adjusted it slightly to account for these variables.
9. On May 4, 2012, we released the
10. The fee methodology for AM and FM radio stations is based on a number of factors, including facility attributes (
11. The digital
12. In our
13. We received one comment from the United States Telecom Association (“USTA”). USTA supports the Commission's effort to rebalance its regulatory fee structure, including updating the calculation of full-time equivalents (“FTEs”) and adjusting the way costs are currently allocated.
14. We have initiated a separate proceeding in which we are requesting comment on these and other issues.
15. In our
16. We received no comments on this issue. We will therefore adopt our proposal and require that all requests for refunds, waivers, fee reductions, or deferments of payment be filed using an online system. We direct the Office of Managing Director to take the necessary steps to assist regulatees in transitioning to electronic filing.
17. In response to our
18. In FY 2009, the Commission implemented several procedural changes that simplified the payment and reconciliation processes of regulatory fees. In FY 2012, the Commission will continue to promote greater use of technology (and less use of paper) in improving our regulatory fee notification and collection processes. We sought comment on how we might do this, but we received no specific comment in response. Accordingly, the Commission will continue its own efforts to promote greater efficiency in its regulatory fee notification and collection processes, subject to appropriate notice and comment.
19. In FY 2009, we instituted a mandatory filing requirement using the Commission's electronic filing and payment system (also known as “Fee Filer”).
20. Included below are procedural items as well as our current payment and collection methods which we have revised over the past several years to expedite the processing of regulatory fee payments. We do not propose changes to these procedures. Rather, we include them here as a useful way of reminding regulatory fee payers and the public about these aspects of the annual regulatory fee collection process.
21. Each year we post public notices and fact sheets pertaining to regulatory fees on our Web site. These documents contain information about the payment due date and relevant regulatory fee payment procedures. We will continue to post this information on
22. In prior years, the Commission mailed pre-bills via surface mail to regulatees in select regulatory fee categories: ITSPs, Geostationary (“GSO”) and Non-Geostationary (“NGSO”) satellite space station licensees,
23. Beginning in FY 2003, we sent fee assessment notifications via surface mail to media services entities on a per-
24. We will continue to follow our current procedures for conveying CMRS subscriber counts to providers. We will mail an initial assessment letter to Commercial Mobile Radio Service (CMRS) providers using data from the Numbering Resource Utilization Forecast (“NRUF”) report that is based on “assigned” number counts that have been adjusted for porting to net Type 0 ports (“in” and “out”).
25. A carrier wishing to revise its subscriber count can do so by accessing Fee Filer after receiving its initial CMRS assessment letter. Providers should follow the prompts in Fee Filer to record their subscriber revisions, along with any supporting documentation.
26. Because some carriers do not file the NRUF report, they may not receive an initial assessment letter. In these instances, the carriers should compute their fee payment using the standard methodology
27. The Commission will continue to permit cable television operators to base their regulatory fee payment on their company's aggregate year-end subscriber count, rather than requiring them to report cable subscriber counts on a per community unit identifier (“CUID”) basis. This significantly lessens the cable operators' burden in calculating and paying their regulatory fees.
28. In FY 2006, we streamlined the CMRS payment process by eliminating the requirement for CMRS providers to identify their individual call signs when making their regulatory fee payment, instead allowing CMRS providers to pay their regulatory fees only at the aggregate subscriber level without having to identify their various call signs.
29. In FY 2007
30. All lock box payments to the Commission for FY 2012 will be processed by U.S. Bank, St. Louis, Missouri, and payable to the FCC. During the fee season for collecting FY 2012 regulatory fees, regulatees can pay their fees by credit card through Pay.gov,
31. The receiving bank for all wire payments is the Federal Reserve Bank, New York, New York (TREAS NYC). When making a wire transfer, regulatees must fax a copy of their Fee Filer generated Form 159–E to U.S. Bank, St. Louis, Missouri at (314) 418–4232 at least one hour before initiating the wire transfer (but on the same business day) so as not to delay crediting their account. Regulatees should discuss arrangements (including bank closing schedules) with their bankers several days before they plan to make the wire transfer to allow sufficient time for the transfer to be initiated and completed before the deadline. Complete instructions for making wire payments are posted at
32. Regulatees whose total FY 2012 regulatory fee liability, including all categories of fees for which payment is due, is less than $10 are exempted from payment of FY 2012 regulatory fees.
33. The Commission will accept fee payments made in advance of the window for the payment of regulatory fees. The responsibility for payment of fees by service category is as follows:
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•
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• The first eleven regulatory fee categories in our Schedule of Regulatory Fees (see Table B) pay “small multi-year wireless regulatory fees.” Entities pay these regulatory fees in advance for the entire amount of their five-year or ten-year term of initial license, and only pay regulatory fees again when the license is renewed or a new license is obtained. We include these fee categories in our Schedule of Regulatory Fees to publicize our estimates of the number of “small multi-year wireless” licenses that will be renewed or newly obtained in FY 2012.
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34. To be considered timely, regulatory fee payments must be received and stamped at the lockbox bank by the due date of regulatory fees. Section 9(c) of the Act requires us to impose a late payment penalty of 25 percent of the unpaid amount to be assessed on the first day following the deadline date for filing of these fees.
35. We will withhold action on any applications or other requests for benefits filed by anyone who is delinquent in any non-tax debts owed to the Commission (including regulatory fees) and will ultimately dismiss those applications or other requests if payment of the delinquent debt or other satisfactory arrangement for payment is not made.
36. As required by the Regulatory Flexibility Act (“RFA”),
37. This rulemaking proceeding was initiated by the Commission to revise its Schedule of Regulatory Fees to collect $339,844,000, the amount that Congress has required the Commission to recover in regulatory fees. This Report and Order revises the fee rates in its Schedule of Regulatory Fees to reflect changes in estimated unit counts, if any, and the amount required by the Commission to collect in regulatory fees. Pursuant to rules adopted in this Order, the FCC will collect these fees in September 2012 in a manner that is efficient (
38. Section 9(a)(1) of the Communications Act of 1934, as amended (the “Act”) directs the Commission to collect regulatory fees “to recover the costs of * * * enforcement activities, policy and rulemaking activities, user information services, and international activities.”
39. In this
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•
•
•
40. No parties have raised issues in response to the IRFA.
41. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.
42.
43.
Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”
55. The second category,
56.
57.
58.
59. In addition, in the Paging Second Report and Order, the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits.
60.
61.
62.
63.
64. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status.
65.
66.
67.
68. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
69.
70.
71.
72. The auction of the 1,053 800 MHz SMR licenses for the General Category channels was conducted in 2000. Eleven bidders who won 108 licenses for the General Category channels in the 800 MHz SMR band qualified as small or very small businesses.
73. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues not exceeding $15 million. One firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1,500 or fewer employees.
74.
75.
76.
77. As of March 2010, there were 424,162 PLMR licensees operating 921,909 transmitters in the PLMR bands below 512 MHz. We note that any entity engaged in a commercial activity is eligible to hold a PLMR license, and that any revised rules in this context could therefore potentially impact small entities covering a great variety of industries.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88. With respect to entities that use, or seek to use, MAS spectrum to accommodate internal communications needs, we note that MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the small business size standard developed by the SBA would be more appropriate. The applicable size standard in this instance appears to be that of Wireless Telecommunications Carriers (except Satellite). This definition provides that a small entity is any such entity employing no more than 1,500 persons.
89.
90.
91.
92.
93. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities.
94.
95. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
96. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.
97. In addition, there are also 2,528 low power television stations, including Class A stations (LPTV).
98.
99. We note, however, that in assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included.
100.
101. The Commission estimates that there are approximately 6,099 FM translators and boosters.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113. The most current Economic Census data for all such firms are 2007 data, which are detailed specifically for ISPs within the categories above. For the first category, the data show that 396 firms operated for the entire year, of which 159 had nine or fewer employees.
114.
115. With certain exceptions, the Commission's Schedule of Regulatory Fees applies to all Commission licensees and regulatees. Most licensees will be required to count the number of licenses or call signs authorized, and pay a regulatory fee based on the number of licenses or call signs.
116. As discussed previously in this
117. Licensees and regulatees are advised that failure to submit the required regulatory fee in a timely manner will subject the licensee or regulatee to a late payment penalty of 25 percent in addition to the required fee.
118. The Commission's rules currently provide for relief in exceptional circumstances. Persons or entities may request a waiver, reduction or deferment of payment of the regulatory fee.
119. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
120. In the
121. Several categories of licensees and regulatees are exempt from payment of regulatory fees, such as government entities, tribal nations, tax exempt (non-profit) entities, amateur radio operator licensees, and entities whose total sum owed in regulatory fees is less than $10. In addition, the Commission's waiver procedures also provide regulatees, including small entity regulatees, relief in exceptional circumstances such as financial hardship. We note that small entities in particular should be assisted by the Commission's electronic filing and payment system (“Fee Filer”), which pre-loads payment data to minimize the time spent by entities searching for payment information. The Commission's Fee Filer system also permits entities to make fee payment in a variety of ways, even on the due date of regulatory fees.
122. The Commission will send a copy of this Report and Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.
123. Accordingly,
124.
Practice and procedures.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:
15 U.S.C. 79
(a) The following schedule applies for the listed services:
(b)(1)
(2) The fee amount, per active 64 KB circuit or equivalent will be determined for each fiscal year. Payment, if mailed, shall be sent to: FCC, International, P.O. Box 979084, St. Louis, MO 63197–9000.
(c)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska (GOA). This action is necessary because the third seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA has been reached.
Effective 1200 hrs, Alaska local time (A.l.t.), August 1, 2012, through 1200 hrs, A.l.t., September 1, 2012.
Obren Davis, 907–586–7228.
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 third seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA is 400 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 2012), for the period 1200 hrs, A.l.t., July 1, 2012, through 1200 hrs, A.l.t., September 1, 2012. This apportionment is reduced to 208 mt after allocating 192 mt to vessels participating in cooperatives in the Central GOA Rockfish Program. Rockfish Program allocations are established annually once NMFS receives information about the vessel composition of each cooperative. The 2012 Central GOA Rockfish Program allocations are available at
In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS, has determined that the third seasonal apportionment of the Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the deep-water species fishery by vessels using trawl gear in the GOA. The species and species groups that comprise the deep-water species fishery include sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder. This closure does not apply to fishing by vessels participating in the cooperative fishery in the Rockfish Program for the Central GOA.
After the effective date of this closure the maximum retainable amounts at § 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 the deep-water species fishery by vessels using trawl gear in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 27, 2012.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Animal and Plant Health Inspection Service, USDA.
Advance notice of proposed rulemaking and request for comments.
We are soliciting public comment on whether and how we should amend our process for responding to domestic chrysanthemum white rust (CWR) outbreaks and the importation of plant material that is a host of CWR. Domestically, CWR host plants must be surveyed and, if found to be infected with CWR, must undergo quarantine, destruction, treatment, or other sanitation measures called for in our National Management Plan. The importation of CWR host plants for planting from a number of countries and localities is currently prohibited to prevent the introduction of CWR into the United States. In addition, importation of cut flowers of CWR host plants from countries where CWR is known to occur is currently restricted. We are reevaluating our current regulatory strategy in order to improve the effectiveness and economic efficiency of our programs. After evaluating public comment on the issues presented in this document, we will determine whether to propose changes to our existing regulations.
We will consider all comments that we receive on or before October 2, 2012.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive on this docket may be viewed at
Ms. Lynn Evans-Goldner, National Program Manager, Emergency and Domestic Programs, PPQ, APHIS, 4700 River Road Unit 160, Riverdale, MD 20737; (301) 851–2286.
The regulations in 7 CFR 319.74 restrict the entry into the United States of cut flowers of CWR host plants from countries where CWR is known to occur. Consignments of cut flowers of CWR host plants imported from these countries must be accompanied by a phytosanitary certificate with an additional declaration stating that the place of production and the consignment have been inspected and found free of the causal agent of CWR.
Despite these regulations, detections of CWR within the United States continue to occur, leading to costly eradication measures that must be undertaken by both Federal and State agencies. In addition, many stakeholders no longer consider the causal agent of CWR to be a pest of quarantine significance due to its limited host range, its frequent detection within the United States, and the availability of treatment/control measures within countries where it is present, and have expressed interest in revisiting the regulatory status of CWR. For these reasons, the Animal and Plant Health Inspection Service (APHIS) is considering potential changes to our domestic CWR eradication program and the CWR import regulations in an effort to improve the effectiveness and economic efficiency of our programs.
We are publishing this advance notice of proposed rulemaking in order to request public comment as we reconsider our regulatory strategy for CWR. We are currently considering four options for the future of the CWR program. The options under consideration are:
1. Continuing to manage CWR as a quarantine pest with the objective of continuing to eradicate new infestations. This option would maintain the current status of CWR with no changes to the program.
2. Revising the current regulations to designate CWR as a regulated non-quarantine pest. A regulated non-quarantine pest is a pest whose presence in plants for planting affects the intended use of those plants with an
3. No longer managing CWR as a quarantine pest whose presence requires an eradication-oriented response, but maintaining port of entry restrictions for chrysanthemums destined to those States where CWR is not present and where these States have established an official control program under the Federally Regulated State-Managed Phytosanitary Program. Any State wishing to establish an official control program would have to conduct a survey demonstrating that CWR does not already exist in the state, conduct periodic nursery inspections illustrating the continued absence of CWR in growing operations, and issue State level regulations which controls the importation of CWR host material into the State and allows for the eradication of CWR if detected within the State. Once a State's official control program is approved by APHIS, any potential host of CWR with that State as its intended final destination would be inspected at the U.S. port and refused entry into the State if CWR is found. However, potential CWR hosts arriving at ports, and destined for States which do not have an official control program for CWR, would not be inspected or regulated for CWR. Additional information regarding The Federally Recognized State Managed Phytosanitary Program is available on the APHIS Web site at
4. Completely removing CWR as a quarantine pest whose presence requires an eradication-oriented response, thus allowing propagators and growers to manage CWR as a quality pest of chrysanthemum without Federal restrictions requiring eradication of this pest.
We welcome comments on these options, particularly on the advantages and disadvantages of each option and the commenter's preferred option. If none of the options under consideration seem appropriate, we encourage the submission of new options or suggestions that we may have overlooked, as well as comments on the advantages of these new options or suggestions.
This action has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
7 U.S.C. 150dd, 150ee, 150ff, 151–167; 7 CFR 2.22, 2.80, and 371.2(c).
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to all The Boeing Company Model 777–200, -200LR, -300, and -300ER series airplanes. The existing AD currently requires repetitive inspections for cracking of the elevator actuator fittings. Since we issued that AD, the manufacturer has developed a modification that was approved as an optional terminating action to the currently required repetitive inspections. We have been advised that the modification procedures include certain incorrect torque values. This proposed AD would require, for previously modified airplanes, repetitive inspections for movement of the fittings or fastener heads, and eventual replacement of certain bolts (including related investigative and corrective actions if necessary). For all airplanes, this replacement, with corrected torque values, would terminate the requirements of the AD. This proposed AD would also remove certain airplanes from the applicability. We are proposing this AD to detect and correct a cracked actuator fitting or incorrectly installed bolts to the actuator fitting, which could lead to the elevator becoming detached and unrestrained, and a consequent unacceptable flutter condition and loss of control of the airplane.
We must receive comments on this proposed AD by September 17, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202–493–2251.
• Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Melanie Violette, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 985057–3356; phone: 425–917–6422;
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On December 10, 2007, we issued AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007), for all Boeing Model 777–200, –200LR, –300, and –300ER series airplanes. That AD requires initial and repetitive inspections for cracking of the elevator actuator fittings, and replacement of any cracked fitting with a new fitting. That AD resulted from a report of a cracked left elevator actuator fitting. We issued that AD to detect and correct a cracked actuator fitting, which could detach from the elevator and lead to an unrestrained elevator and an unacceptable flutter condition, and consequent loss of airplane control.
The preamble to AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007), specifies that we consider the requirements “interim action” and that the manufacturer is developing a modification to address the unsafe condition. AD 2007–26–05 also explains that we might consider further rulemaking if a modification is developed, approved, and available. The manufacturer developed such a modification, which is specified in Boeing Alert Service Bulletin 777–55A0016, dated October 27, 2009. We issued an alternative method of compliance (AMOC) specifying that the optional accomplishment of the actions specified in Boeing Alert Service Bulletin 777–55A0016, dated October 27, 2009, terminate the requirements of AD 2007–26–05. Boeing Alert Service Bulletin 777–55A0016, dated October 27, 2009, however, specified incorrect torque values for the BACB30NR4K6 and BACB30NR4K7 bolts, which could recreate the original unsafe condition. We have thus determined that further rulemaking is necessary to address this potentially reintroduced unsafe condition.
We reviewed Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, which describes procedures for replacing the elevator actuator fitting assemblies with new assemblies, and torquing the bolts with correct torque values, which eliminates the need for the repetitive inspections required by AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007).
Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, also describes additional work for airplanes that were modified using Boeing Alert Service Bulletin 777–55A0016, dated October 27, 2009, which specified certain incorrect fastener torque values. For those airplanes that were modified using the incorrect torque values, Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, also describes procedures for repetitive detailed inspections for movement of the fastener heads and the fittings along the spar web of the elevator actuator fitting assemblies, and eventual replacement of the 12 bolts common to the elevator actuator fitting and the spar web (including related investigative and corrective actions), which eliminates the need for the repetitive inspections. Related investigative actions include a detailed inspection for fitting damage, a detailed inspection of the composite spar web for damage, and an ultrasonic inspection for cracks, delaminations, and damage. Corrective actions include contacting Boeing and doing the repairs.
We also reviewed Boeing Service Bulletin 777–55A0015, Revision 3, dated November 24, 2009, which describes the same actions as Boeing Alert Service Bulletin 777–55A0015, dated April 19, 2007 (which was cited in AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007), as the appropriate source of service information for the required actions), and adds an optional terminating action for certain inspection requirements using Boeing Alert Service Bulletin 777–55A0016, dated October 27, 2009.
Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
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 these same type designs.
This proposed AD would retain all requirements of AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007). This proposed AD would remove new production airplanes from the applicability. This proposed AD would also require accomplishing the actions specified in the service information described previously.
This proposed AD would retain all requirements of AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007). Since AD 2007–26–05 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifier has changed in this proposed AD, as listed in the following table:
We estimate that this proposed AD affects 139 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspections. We have no way of determining the number of aircraft that might need these replacements:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007), and adding the following new AD:
The FAA must receive comments on this AD action by September 17, 2012.
This AD supersedes AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007).
This AD applies to The Boeing Company Model 777–200, –200LR, –300, and –300ER series airplanes; certificated in any category, as identified in Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 55, Stabilizers.
This AD was prompted by a report of a cracked left elevator actuator fitting, and the recent determination that certain incorrect torque values had been specified for an alternative method of compliance intended to terminate the requirements of the existing AD. We are issuing this AD to detect and correct a cracked actuator fitting or incorrectly installed bolts to the actuator fitting, which could lead to the elevator becoming detached and unrestrained, and a consequent unacceptable flutter condition and loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the inspections and corrective actions required by paragraph (f) of AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007), with no changes.
(1) Do all inspections and actions described in paragraphs (g)(1) and (g)(2) of this AD, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–55A0015, dated April 19, 2007; or Boeing Alert Service Bulletin 777–55A0015, Revision 3, dated November 24, 2009. As of the effective date of this AD, Boeing Alert Service Bulletin 777–55A0015, Revision 3, dated November 24, 2009, must be used to accomplish the actions required by this paragraph. At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 777–55A0015,
(2) Before further flight, replace any fitting found to be cracked during any inspection required by paragraph (g)(1) of this AD with a new fitting having the same part number, or an optional part number as identified in Boeing Alert Service Bulletin 777–55A0015, dated April 19, 2007; or Boeing Service Bulletin 777–55A0015, Revision 3, dated November 24, 2009. Thereafter, do initial and repetitive inspections of the replacement fitting at the time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 777–55A0015, dated April 19, 2007.
(3) Where Boeing Alert Service Bulletin 777–55A0015, dated April 19, 2007, specifies a compliance time after the date on that service bulletin, this AD requires compliance within the specified compliance time after January 22, 2008 (the effective date of AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007)).
For airplanes on which the elevator actuator fitting assemblies have been replaced in accordance with and using the fastener torque values specified in Boeing Alert Service Bulletin 777–55A0016, dated October 27, 2009: Within 180 days after the effective date of this AD, do a detailed inspection of the elevator actuator fitting assemblies to detect discrepancies (including indications of fastener head movement, and fitting movement along the spar web), in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011.
(1) If no discrepancy is detected, do the actions specified in paragraphs (h)(1)(i) and (h)(1)(ii) of this AD:
(i) Repeat the inspection thereafter at intervals not to exceed 90 days or 360 flight cycles, whichever occurs first, until the actions specified in paragraph (h)(1)(ii) are done.
(ii) Within 4,200 flight cycles or 750 days after the effective date of this AD, whichever occurs first, replace the 12 bolts common to the elevator actuator fitting and the spar web, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, except as provided by paragraph (j) of this AD. Do all applicable related investigative and corrective actions before further flight. The replacement of all 12 bolts in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, terminates the requirements of this AD for that fitting only.
(2) If any discrepancy is detected, before further flight, replace the 12 bolts common to the elevator actuator fitting and the spar web using new parts, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, except as provided by paragraph (j) of this AD. Do all applicable related investigative and corrective actions before further flight. The replacement of all 12 bolts in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, terminates the requirements of this AD for that fitting only.
For airplanes on which the elevator actuator fitting assemblies have not been replaced in accordance with Boeing Alert Service Bulletin 777–55A0016, dated October 27, 2009: Replacement of these fitting assemblies with new parts, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, except as provided by paragraph (j) of this AD, terminates the requirements of this AD.
If any discrepancy or cracking is found during any inspection required by this AD, and Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011, specifies to contact Boeing for appropriate action: Before further flight, repair, using a method approved in accordance with the procedures specified in paragraph (l) of this AD.
(1) This paragraph provides credit for inspecting and replacing the elevator actuator fitting assemblies, as required by paragraphs (h) and (i) of this AD, if the replacement was performed before the effective date of this AD using Boeing Alert Service Bulletin 777–55A0016, dated October 27, 2009, and using the correct torque values as specified in Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011.
(2) This paragraph provides credit for inspecting and replacing actuator fittings, as required by paragraph (g) of this AD, if the inspection and replacement was performed before the effective date of this AD using the service bulletins specified in paragraphs (k)(2)(i) and (k)(2)(ii) of this AD and using the correct torque values as specified in Boeing Alert Service Bulletin 777–55A0016, Revision 1, dated August 25, 2011.
(i) Boeing Service Bulletin 777–55A0015, Revision 1, dated January 31, 2008.
(ii) Boeing Service Bulletin 777–55A0015, Revision 2, dated December 4, 2008.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by The Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved for AD 2007–26–05, Amendment 39–15307 (72 FR 71212, December 17, 2007), are not approved as AMOCs for this AD.
(1) For more information about this AD, contact Melanie Violette, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 985057–3356; phone: 425–917–6422; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD)
We must receive comments on this proposed AD by September 17, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202–493–2251.
• Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Francis Smith, Aerospace Engineer, Cabin Safety & Environmental Systems Branch, ANM–150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6457; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On October 19, 2009, we issued AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009), for certain The Boeing Company Model 747–100, 747–100B, 747–100B SUD, 747–200B, 747–200C, 747–200F, 747–300, 747–400, 747–400D, 747–400F, 747SR, and 747SP series airplanes; and certain Model 757–200, –200PF, and –300 series airplanes. That AD requires replacing the control switches of the forward, aft, and nose cargo doors for certain airplanes, and replacing the control switches of cargo doors 1 and 2 for certain airplanes. That AD resulted from reports of problems associated with the uncommanded operation of cargo doors. We issued that AD to prevent injuries to persons and damage to the airplane and equipment.
Since we issued AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009), we have determined that additional airplanes are affected by the identified unsafe condition.
We reviewed Boeing Special Attention Service Bulletin 747–52–2286, Revision 1, dated October 28, 2010. This service bulletin describes procedures for replacing the control switches of the forward, aft, and nose cargo doors with new switches. This service bulletin also adds Group 3 airplanes, and also changes the compliance time for Groups 1 and 2 airplanes.
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 these same type designs.
This proposed AD would retain all requirements of AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009). This proposed AD would add Group 3 airplanes, as specified in Boeing Special Attention Service Bulletin 747–52–2286, Revision 1, dated October 28, 2010, and would change the compliance time for Groups 1 and 2 airplanes. This proposed AD would also require accomplishing the actions specified in the service information described previously.
This proposed AD would retain all requirements of AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009). Since AD 2009–22–08 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
We estimate that this proposed AD affects 225 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009), and adding the following new AD:
The FAA must receive comments on this AD action by September 17, 2012.
This AD supersedes AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009).
This AD applies to The Boeing Company Model 747–100, 747–100B, 747–100B SUD, 747–200B, 747–200C, 747–200F, 747–300, 747–400, 747–400D, 747–400F, 747SR, and 747SP series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 747–52–2286, Revision 1, dated October 28, 2010; and Model 757–200, -200PF, and -300 series airplanes, certificated in any category, as indentified in Boeing Special Attention Service Bulletin 757–52–0090, dated September 21, 2007.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 52, Doors.
This AD was prompted by reports of problems associated with the uncommanded operation of cargo doors. We are issuing this AD to prevent injuries to persons and damage to the airplane and equipment.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (f) of AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009), with revised compliance times and service information. Replace the control switches, as specified in paragraph (g)(1) or (g)(2) of this AD, as applicable. Repeat the replacements thereafter at intervals not to exceed 72 months.
(1) For Groups 1 and 2 Model 747 airplanes as identified in Boeing Special Attention Service Bulletin 747–52–2286, Revision 1, dated October 28, 2010: Within 24 months after December 3, 2009 (the effective date of AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009)), or within 72 months from the date of issuance of the original certificate of airworthiness or the original export certificate of airworthiness, whichever occurs later, replace the control switches of the forward, aft, and nose cargo doors, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747–52–2286, dated September 28, 2007; or Boeing Special Attention Service Bulletin 747–52–2286, Revision 1, dated October 28, 2010. As of the effective date of this AD, use only Boeing Special Attention Service Bulletin 747–52–2286, Revision 1, dated October 28, 2010, to do the actions specified in this paragraph.
(2) For Model 757 series airplanes: Within 24 months after December 3, 2009 (the effective date of AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009)), replace the control switches of cargo doors 1 and 2, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757–52–0090, dated September 21, 2007.
For Group 3 airplanes, as identified in Boeing Special Attention Service Bulletin 747–52–2286, Revision 1, dated October 28, 2010: Within 72 months from the date of issuance of the original certificate of airworthiness or the original export certificate of airworthiness, or within 12
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) AMOCs approved previously in accordance with AD 2009–22–08, Amendment 39–16059 (74 FR 55763, October 29, 2009), are approved as AMOCs for the corresponding provisions of this AD.
(1) For more information about this AD, contact Francis Smith, Aerospace Engineer, Cabin Safety & Environmental Systems Branch, ANM–150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6457; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
Minority Business Development Agency, Commerce.
Notice of proposed rulemaking and request for comments; amendment.
The Minority Business Development Administration publishes this notice to extend the date on which it plans to make its decision on a petition from the American-Arab Anti-Discrimination Committee requesting formal designation from July 30, 2012 to August 30, 2012.
For further information about this Notice, contact Josephine Arnold, Minority Business Development Agency, 1401 Constitution Avenue NW., Room 5053, Washington, DC 20230, (202) 482–2332.
On May 30, 2012, the Minority Business Development Agency (MBDA) published a notice of proposed rulemaking and request for comments regarding a petition received on January 11, 2012 from the American-Arab Anti-Discrimination Committee (ADC) requesting formal designation of Arab-Americans as a minority group that is socially or economically disadvantaged pursuant to 15 CFR Part 1400. The Notice included a thirty-day comment period that ended on June 29, 2012, but also stated that MBDA will make a decision on the petition no later than June 27, 2012. On June 12, 2012, MBDA published a notice in the
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Proposed rule; public comment period and opportunity for public hearing.
We are announcing receipt of a proposed amendment to the Ohio regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Ohio's proposed amendment updates the Ohio Administrative Code (OAC) to address issues raised by OSM regarding consistency of Ohio's surface mining program with the final Federal rule relative to Ownership and Control, Permit and Application Information and Transfer, and Assignment or Sale of Permit Rights, which became effective December 3, 2007. The proposed amendment specifically alters the following regulations within the OAC: Definitions; Incorporation by reference; Permit applications, requirements for legal, financial, compliance, and related information; Permit applications, revisions, and renewals, and transfers, assignments, and sales of permit rights; Improvidently issued permits; and Enforcement and Individual civil penalties. By submittal of this proposed amendment, Ohio intends to revise its approved program pursuant to the additional flexibility afforded by the revised Federal regulations and SMCRA, as amended, to ensure Ohio's proposed regulatory provisions are no less effective than the corresponding regulations. This document provides the times and locations that the Ohio program and proposed amendment are available for public inspection, the comment period during which you may submit written comments on this amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on these amendments until
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In addition, you may review a copy of the amendment during regular business hours at the following locations:
Ben Owens, Acting Chief, Pittsburgh Field Division; Telephone: (614) 416–2238. Email:
Section 503(a) of SMCRA permits a state to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.”
Following the approval of Federal rule, “Ownership and Control; Permit and Application Information; Transfer, Assignment, or Sale of Permit Rights; Final Rule” on December 7, 2007 (72 FR 68000). OSM performed a side-by-side comparison of Ohio's regulations to ensure the OAC provisions were no less effective than the Federal regulations. OSM and Ohio discussed the implementation of Ohio regulations and potential revisions. Ohio, in a letter dated September 25, 2009, (Administrative Record Number OH 2190–01) responded to the findings from the OSM side-by-side analysis, described Ohio's plan to address provisions that were determined to be less effective than the Federal regulations, and stated a proposed amendment would be submitted to OSM. By letter dated March 30, 2012, (Administrative Record Number OH 2190–01), Ohio sent OSM a request to approve six revised regulations. Key provisions of the proposed amendment add the definitions of “knowingly,” “transfer, assignment, or sale of permit rights,” and “violation” to the OAC; require enhanced identification of interests; a provision for a central repository documenting identification of interests; and alteration for the determination of an improvidently issued permit. The following is a summary of the revisions and additions to OAC:
Changes have been made to reflect the absence of “knowing” or “knowingly” from the OAC definition section. This term has been added to conform to the Federal definition defined in 30 CFR 701.5. Additionally, the proposed amendment alters the definition in other sections of the OAC. The thrust of the change is the substitution of the word “individual” formerly used by Ohio, to the usage of “person” as utilized in the Federal regulations.
Ohio has added the definition of “[t]ransfer, assignment, or sale of permit rights” to the definition section. Ohio's definition of this term contemplates any change of a permittee, including any fundamental legal change in the structure or nature of the permittee or a name change.
The definition of “violation” has been added for the purposes of the following OAC sections:
• Permit applications; requirements for legal, financial, compliance and related information;
• Review, public participation, and approval or disapproval of permit applications and permit terms and conditions; and
• Improvidently issued permits.
Violation is defined as any of the following:
• Written notification from a governmental agency identifying a failure to comply with applicable Federal or state law or regulations relative to environmental air or water protection;
• Noncompliance identified by the Chief of the Division of Mineral Resources Management, OSM, or a comparable authority, pursuant to the federal or state regulatory program. Notice of this noncompliance may be given via a notice of violation, cessation order, final order, bill or demand letter relative to a delinquent civil penalty; a bill or demand letter relative to delinquent reclamation fees or a performance security or bond forfeiture order.
The definition of “violation notice” has been altered to apply to the following OAC sections:
• Permit applications; requirements for legal, financial, compliance and related information;
• Review, public participation, and approval or disapproval of permit applications and permit terms and conditions; and
• Improvidently issued permits.
A violation notice is now defined as a written notification from a regulatory authority or other governmental entity of a violation, as defined in this section. This change reflects the language used to define this term in 30 CFR 701.5.
Section (A)(8) has been revised to require any permittee, within thirty days of the issuance of a cessation order, to provide accurate and current identification of interest information as defined in the Permit applications; requirements for legal, financial compliance and related information sections of the OAC. Formatting changes were made to reflect changes in numbering.
Revisions were made to remove the definition of “knowingly” from this section. Consequently, formatting changes were required to account for the elimination of this definition.
Grammar and formatting changes are present that do not alter the meaning or intent of the OAC as previously structured. Multiple changes have been made to incorporate all inclusive gender reference.
In addition, sections (B)(2) and (3) have been altered to require submission of addresses for all owners of record, holders of record of any leasehold interests, and any purchasers of record of the property to be mined. Previously this requirement did not require address submission. The alteration expands the requirements for providing addresses in order to encompass all aspects of interest.
This section is further revised to require submission of data when a departure or change of an individual named in a permit application occurs.
Section (C)(1) requires violation history relative to an operator be provided in the permit application. Previously, the applicant was the only individual required to submit this information.
Section (C)(2) requires date of suspension, revocation, or forfeiture.
Section (C)(3) also adds a provision requiring all applications to include a listing of any cessation order or notice of violation in instances when the abatement period has not expired.
Section (C)(4) requires a certification by the Federal or state regulatory authority issuing the notice of violation or cessation order confirming the violation has been abated or corrected is required. This provision does not interfere with the requirement in (C)(4)(f) that all violations and cessation orders having an expired abatement period must still provide information as to the action taken to abate or correct the violation or cessation order.
Under (C)(4) the addition of “Central file for identity information,” allows applicants or permittees to provide requisite information in a streamlined method whereby all information required in the Permit applications, revisions and renewals and transfers, assignments and sales of permit rights provisions, as outlined in OAC sections 1501:13–4–06 and 1501:13–5–01, are submitted to the Chief of the Division of Mineral Resources Management and are applicable to all permits held by that applicant or permittee. These items will be maintained in a central file for reference in the event of any subsequent submission. To participate, applicants or permittees must submit a sworn or affirmed oath, in writing, verifying all the information is accurate and complete. The central file will be maintained for reference, eliminating the need to provide identity information in each application. The file will be available for public review upon request. This information shall be maintained and updated.
In the event a permittee or applicant has an established central file, certification shall be made that the file is accurate and complete when submitting permit applications, revisions, renewals, transfers, assignments, and sales of permits rights in accordance with 1501:13–4–06. Upon submission, the permittee shall submit a certification, provided by the Chief of the Division of Mineral Resources Management swearing or affirming the information is accurate, complete, and updated. This must be in the form of a written oath. Any information that is missing, as required by the provisions set forth herein, must be submitted and accompanied by a written oath as described relative to providing an affirmation of a complete information repository.
Throughout the regulations reference to the proposed central repository for identification information is referenced and incorporated.
The amendment proposes to alter Section (I) by adding a provision requiring notification within 30 days of any addition, departure or change in the structure. This must be done in writing and must include any person's name, address, telephone number, title, and relationship to the applicant, including percentage of ownership, interest and position within the organizational structure. Information detailing commencement and departure are also required.
Pursuant to the proposed amendments, should the Chief of the Division of Mineral Resources Management have reason to believe a coal mining and reclamation permit was improvidently issued, then he or she shall make a preliminary finding indicating improvident issuance if:
• A determination based on the permit eligibility, in effect at the time of issuance, indicates either:
(a) The permit should not have been issued due to an unabated or uncorrected violation or
(b) The permit was issued based on the presumption that a violation was in the process of being corrected;
• The violation remains unabated or uncorrected and the time frame for appeal is expired or a payment schedule, as approved, is not being complied with as ordered;
• Ownership or control existing at the time of issuance demonstrates a link to the violation and remains in effect, or if the link was severed, the permittee continues to be responsible for the violation.
Upon a preliminary finding of an improvidently issued permit, the Chief may serve the permittee with written notice establishing a prima facie case indicating the permit was improvidently issued. Within thirty days, the permittee may request an informal review and may provide evidence to the contrary.
Section (C) augments references to abatement of a violation by adding the term “correction.”
Section (D) allows the Chief of the Division of Mineral Resources Management to suspend a permit as opposed to the previous regulation granting only the right to rescind the permit. Moreover, the proposed amendment provides that, upon a determination indicating the permit was improvidently issued, the Chief shall serve the permittee notice of the
• The previous determination was incorrect;
• The violation is under appeal and an initial judicial decision affirming the violation is absent;
• The violation is subject to an approved abatement, correction plan or payment schedule;
• Ownership or control is severed and no continuing responsibility is apportioned to permittee; or
• An appeal as to ownership or control exists and an initial judicial decision affirming such ownership or control is absent.
The proposed amendment eliminates previous provisions allowing automatic suspension within ninety days upon proper showing.
In the event the permit is deemed suspended or rescinded the Chief shall immediately order the cessation of coal mining and reclamation operations and post written notice of the cessation order at the Division of Mineral Resources Management District Office closest to the permit area.
The Web site provided in the proposed amendment updates the public to ensure access to federal regulation references. The revised Web site is
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether Ohio's proposed amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of Ohio's program.
If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.
We cannot ensure that comments received after the close of the comment period (see
Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that your entire comments, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comments to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the
Intergovernmental relations, Surface mining, Underground mining.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone on the navigable waters of Patchogue Bay, in Patchogue, NY for the DeStefano family wedding fireworks display. This action is necessary to provide for the safety of life on navigable waters during the event. Entering into, transiting through, remaining, anchoring or mooring within this regulated area would be prohibited unless authorized by the Captain of the Port (COTP) Sector Long Island Sound.
Comments and related material must be received by the Coast Guard on or before September 4, 2012.
Requests for public meetings must be received by the Coast Guard on or before August 10, 2012.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
If you have questions on this rule, call or email Petty Officer Joseph Graun, Prevention Department, Coast Guard Sector Long Island Sound, (203) 468–4544,
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under
This is a first time event with no regulatory history.
The legal basis for this temporary rule is 33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1 which collectively authorize the Coast Guard to define regulatory safety zones.
This temporary regulation is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks display.
This temporary rule proposes to establish a safety zone for the DeStefano family wedding fireworks display. This proposed regulated area includes all waters of Patchogue Bay within a 1000 foot radius of the fireworks barge located 1000 feet south of “Lombardi's on The Bay” restaurant in Patchogue, NY.
This rule will be effective from 8:30 p.m. on November 3, 2012 through 10:30 p.m. on November 4, 2012.
The fireworks display is scheduled to occur from 8:30 p.m. until 10:30 p.m. on November 3, 2012. If the event is cancelled due to inclement weather, then this regulation will be enforced from 8:30 p.m. until 10:30 p.m. on November 4, 2012.
Because spectator vessels are expected to congregate around the location of the fireworks display, this regulated area is necessary to protect both spectators and participants from the hazards created by unexpected pyrotechnics detonation, and burning debris. This proposed rule would temporarily establish a regulated area to restrict vessel movement around the location of the fireworks display to reduce the safety risks associated with it.
To aid the public in identifying the launch platform; fireworks barges used for this display will have a sign on their port and starboard side labeled “FIREWORKS—STAY AWAY.” This sign will consist of 10 inch high by 1.5 inch wide red lettering on a white background.
Public notifications will be made to the local maritime community prior to the event through the Local Notice to Mariners, and Broadcast Notice to Mariners.
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 Coast Guard determined that this rulemaking would not be a significant regulatory action for the following reasons: The regulated area will be of limited duration and cover only a small portion of the navigable waterways. Also, mariners may request permission from the COTP Sector Long Island Sound or the designated representative to transit the zone.
Advanced public notifications will also be made to the local maritime community through the Local Notice to Mariners as well as 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. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit, anchor or moor within the regulated area during the effective period. The temporary safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The regulated area will be of limited size and of short duration and mariners may request permission from the COTP Sector Long Island Sound or the designated representative to transit the zone. Notifications will be made to the maritime community through the Local Notice to Mariners and Broadcast Notice to Mariners well in advance of the event.
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 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 establishing a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 165 as follows:
1. The authority citation for Part 165 continues to read as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T01–0571 to read as follows:
(a)
(b)
(c)
(d)
1. Definitions. The following definitions apply to this section:
i.
ii.
iii.
2. Vessel operators desiring to enter or operate within the regulated area should contact the COTP Sector Long Island Sound at 203–468–4401 (Sector LIS command center) or the designated representative via VHF channel 16 to obtain permission to do so.
3. Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated area during the effective dates and times, or dates and times as modified through the Local Notice to Mariners, unless authorized by COTP Sector Long Island Sound or designated representative.
4. Upon being hailed by a U.S. Coast Guard vessel or the designated representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
5. The COTP Sector Long Island Sound or designated representative may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property.
6. Fireworks barges used in this location will have a sign on their port and starboard side labeled “FIREWORKS—STAY AWAY”. This sign will consist of 10 inch high by 1.5 inch wide red lettering on a white background.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve in part, and conditionally approve in part, the State Implementation Plan (SIP) revisions, submitted by the Commonwealth of Kentucky through the Kentucky Energy and Environment Cabinet, Division for Air Quality (DAQ), as demonstrating that the Commonwealth meets the requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or Act) for the 1997 annual and 2006 24-hour fine particulate matter (PM
Written comments must be received on or before September 4, 2012.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2010–1014, by one of the following methods:
1.
2.
3.
4.
5.
Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. The telephone number is (404) 562–9043. Mr. Lakeman can be reached via electronic mail at
On July 18, 1997 (62 FR 38652), EPA established an annual PM
On March 4, 2004, Earthjustice submitted a notice of intent to sue related to EPA's failure to issue findings of failure to submit related to the “infrastructure” requirements for the 1997 annual PM
On October 22, 2008, EPA published a final rulemaking entitled “Completeness Findings for Section 110(a) State Implementation Plans Pertaining to the Fine Particulate Matter (PM
Kentucky's infrastructure submissions were received by EPA on August 26, 2008, for the 1997 annual PM
On July 6, 2011, WildEarth Guardians and Sierra Club filed an amended complaint related to EPA's failure to take action on the SIP revision related to the “infrastructure” requirements for the 2006 24-hour PM
Today's proposal addresses three related actions. First, EPA is proposing to determine that, as described in its infrastructure submissions, Kentucky's SIP meets the section 110(a)(2) infrastructure requirements for both the 1997 annual and 2006 24-hour PM
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 annual and 2006 24-hour PM
Section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below
• 110(a)(2)(A): Emission limits and other control measures.
• 110(a)(2)(B): Ambient air quality monitoring/data system.
• 110(a)(2)(C): Program for enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.
• 110(a)(2)(J): Consultation with government officials; public
• 110(a)(2)(K): Air quality modeling/data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/participation by affected local entities.
EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM
EPA intended the statements in the other proposals concerning these four issues merely to be informational and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a re-approval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these ozone and PM
Unfortunately, the Commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issues in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements in those other proposals, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately from actions on infrastructure SIP submissions.
The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)” and that these SIPs are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other different requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A, NSR permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.
Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements
Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1).
Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C,
Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these ozone and PM
On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM
On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SIPs for the 2006 PM
EPA believes that this approach to the infrastructure SIP requirement is reasonable because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM
Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA.
Kentucky's infrastructure submissions address the provisions of sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A):
In this action, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during SSM of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency plans to address such state regulations in the future. In the meantime, EPA encourages any state having deficient SSM provisions to take steps to correct it as soon as possible.
Additionally, in this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B)
3. 110(a)(2)(C)
Based on Kentucky's commitment, EPA is proposing to conditionally approve Kentucky's 110(a)(2)(C) infrastructure SIP consistent with section 110(k)(4) of the Act. EPA intends to move forward with finalizing the conditional approval consistent with section 110(k)(4) of the Act.
In this action, EPA is proposing to conditionally approve Kentucky's infrastructure SIP for the 1997 annual and 2006 24-hour PM
EPA is proposing to conditionally approve element 110(a)(2)(C) based on the commitment of the Commonwealth to submit SIP revisions to address the PM
4. 110(a)(2)(D)(ii)
5. 110(a)(2)(E)
In support of EPA's proposal to approve elements 110(a)(2)(E)(i) and (iii), Kentucky DAQ's infrastructure submissions demonstrate that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards general policies, a system of permits, fee schedules for the review of plans, and other planning needs. As evidence of the adequacy of Kentucky DAQ's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to Kentucky on March 14, 2012, outlining 105 grant commitments and current status of these commitments for fiscal year 2011. The letter EPA submitted to Kentucky can be accessed at
Section 110(a)(2)(E)(ii) requires that the Commonwealth comply with section 128 of the CAA. Section 128 requires that: (1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar, powers be adequately disclosed. Kentucky's July 17, 2012, submission adequately demonstrated that Kentucky's SIP meets the applicable section 128 requirements pursuant to section 110(a)(2)(E)(ii). For purposes of section 128(a)(1), Kentucky has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by the Director of Division for Air Quality. As such, a “board or body” is not responsible for approving permits or enforcement orders in Kentucky, and the requirements of section 128(a)(1) are not applicable. Regarding section 128(a)(2) (also applicable to the infrastructure SIP pursuant to section 110(a)(2)(E)(ii)), EPA is, through this notice, proposing to approve Kentucky's July 17, 2012, SIP revision requesting incorporation of KRS Chapters 11A.020, 11A.030, 11A.040 and Chapters 224.10–020 and 224.10–100 into the SIP to address sub-element 110(a)(2)(E)(ii). KRS Chapters:
6.
7. 110(a)(2)(G)
8. 110(a)(2)(H)
• December 3, 2008, Louisville, Huntington-Ashland and Cincinnati PM
• February 8, 2012, Huntington-Ashland 1997 Annual PM
• March 5, 2012, Louisville 1997 Annual PM
9
10. 110(a)(2)(J) (127 public notification)
11. 110(a)(2)(J) (PSD)
With regard to the applicable requirements for visibility protection, EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, EPA finds that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. This would be the case even in the event a secondary PM
12. 110(a)(2)(K)
13. 110(a)(2)(L)
14. 110(a)(2)(M)
As described above, DAQ has addressed the elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, and
With respect to element 110(a)(2)(E)(ii), EPA is today proposing to determine that Kentucky's SIP satisfies this infrastructure element contingent upon EPA taking final action to approve Kentucky's July 17, 2012, submission requesting approval of KRS Chapters 11A.020, 11A.030, 11A.040, 224.10–020 and 224.10–100 into the SIP to address sub-element 110(a)(2)(E)(ii). Today's action is also proposing approval of KRS Chapters 11A.020, 11A.030, 11A.040, 224.10–020 and 224.10–100 into the SIP.
With respect to elements 110(a)(2)(C) and 110(a)(2)(J) relating to the PSD requirements, EPA is proposing to conditionally approve these requirements based upon the commitment made by Kentucky to submit the requisite SIP revision to address the Commonwealth's current NSR PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the Commonwealth, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to partially approve and partially disapprove State Implementation Plan (SIP) revisions submitted by the State of Nevada to address the requirements of section 110(a)(1) and 110(a)(2) of the Clean Air Act (CAA) for the 1997 8-hour ozone national ambient air quality standards (NAAQS) and the 1997 and 2006 NAAQS for fine particulate matter (PM
Written comments must be received on or before September 4, 2012.
Submit your comments, identified by Docket ID Number EPA–R09–OAR–2011–0047, by one of the following methods:
1.
2.
3.
4.
Rory Mays, Air Planning Office (AIR–2), U.S. Environmental Protection Agency, Region IX, (415) 972–3227,
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
Section 110(a)(1) of the CAA requires each state to submit to EPA, within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a primary or secondary NAAQS or any revision thereof, a SIP that provides for the “implementation, maintenance, and enforcement” of such NAAQS. EPA refers to these specific submissions as “infrastructure” SIPs because they are intended to address basic structural SIP requirements for new or revised NAAQS. The infrastructure SIP elements include:
• Section 110(a)(2)(A): Emission limits and other control measures.
• Section 110(a)(2)(B): Ambient air quality monitoring/data system.
• Section 110(a)(2)(C): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i): Interstate pollution transport.
• Section 110(a)(2)(D)(ii): Interstate and international pollution abatement.
• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.
• Section 110(a)(2)(F): Stationary source monitoring and reporting.
• Section 110(a)(2)(G): Emergency episodes.
• Section 110(a)(2)(H): SIP revisions.
• Section 110(a)(2)(J): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.
• Section 110(a)(2)(K): Air quality modeling and submission of modeling data.
• Section 110(a)(2)(L): Permitting fees.
• Section 110(a)(2)(M): Consultation/participation by affected local entities.
Two elements identified in section 110(a)(2) are not governed by the three-year submission deadline of section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under section 172. The two elements are: (i) Section 110(a)(2)(C) to the extent it refers to permit programs required under part D (nonattainment New Source Review (NSR)), and (ii) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I).
On July 18, 1997, EPA issued a revised NAAQS for ozone
On March 10, 2005, EPA entered into a Consent Decree with EarthJustice that obligated EPA to make official findings in accordance with section 110(k)(1) of the CAA as to whether states had made required complete SIP submissions, pursuant to sections 110(a)(1) and 110(a)(2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by October 5, 2008 for the 1997 PM
EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM
EPA intended the statements in other proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP-approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these NAAQS should not be construed as explicit or implicit reapproval of any existing provisions that relate to these four substantive issues.
Unfortunately, the commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issues in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements in those other proposals, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately from actions on infrastructure SIP submissions.
Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions.
Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1).
Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C,
Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these ozone and PM
On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM
On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SIPs for the 2006 PM
EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a comprehensive review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and
Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA.
On February 1, 2008, the Nevada Division of Environmental Protection (NDEP) submitted the “CAA 110(a)(2)(A)–(M) Requirements in the Current Nevada State Implementation Plan (SIP) for 8-Hour Ozone” to address the infrastructure SIP requirements for the 1997 ozone NAAQS (“2008 Ozone Submittal”).
On December 4, 2009, NDEP submitted the “Current CAA 110(a)(2)(A)–(M) Requirements in the Washoe County Portion of the Nevada PM
On July 5, 2012, NDEP submitted “Revisions to Nevada's Clean Air Act § 110(a)(2) State Implementation Plan Submittals; Parallel Processing Request” to address certain infrastructure SIP requirements for the 1997 ozone, 1997 PM
NDEP did not provide notice and an opportunity for public comment or hearing prior to adoption and submittal of the 2008 Ozone Submittal, the 2008 PM
As SIP revisions, such submittals require public notice, and opportunity for comment and hearing. We find, however, that, in this instance, because NDEP has provided notice, and opportunity to comment and hearing in connection with the 2012 Submittal, described above, and because NDEP's notice refers to the 2008 Ozone Submittal, the 2008 PM
We are proposing to act on all five submittals since they collectively address the infrastructure SIP requirements for the 1997 ozone, 1997 PM
EPA has evaluated Nevada's Infrastructure SIP Submittals and the existing provisions of the Nevada SIP for compliance with the CAA section 110(a) requirements for the 1997 ozone, 1997 PM
Based upon our evaluation as presented in the TSDs, EPA proposes to approve Nevada's Infrastructure SIP Submittals with respect to the following infrastructure SIP requirements:
• Section 110(a)(2)(A): Emission limits and other control measures.
• Section 110(a)(2)(B): Ambient air quality monitoring/data system.
• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i) (in part): Interstate pollution transport. (Please see our 2006 PM
• Section 110(a)(2)(D)(ii) (in part): Interstate pollution abatement and international air pollution
• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies. (Please see our Section 128 TSD for our evaluation of Nevada's Infrastructure SIP Submittals regarding the conflict of interest requirements of section 110(a)(2)(E)(ii).)
• Section 110(a)(2)(F) (in part): Stationary source monitoring and reporting.
• Section 110(a)(2)(G): Emergency episodes.
• Section 110(a)(2)(H): SIP revisions.
• Section 110(a)(2)(J) (in part): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.
• Section 110(a)(2)(K) (in part): Air quality modeling and submission of modeling data.
• Section 110(a)(2)(L): Permitting fees.
• Section 110(a)(2)(M): Consultation/participation by affected local entities.
In connection with our proposed partial approval of Nevada's Infrastructure SIP Submittals, we are proposing to approve certain statutes, regulations, and other materials, that were included in the 2009 PM
First, with respect to section 110(a)(2)(E)(i) (
Second, in connection with our proposed approval of Nevada's Infrastructure SIP Submittals with respect to section 110(a)(2)(E)(ii) (
Third, in connection with our proposed approval of Nevada's Infrastructure SIP Submittals with respect to section 110(a)(2)(J) (in part) and (M), EPA is proposing to approve a comprehensive revision to Section 11 (“Intergovernmental Consultation”) of the Nevada SIP, which is included as Attachment D to Nevada's 2012 Submittal. Nevada's revision to Section 11 (“Intergovernmental Consultation”) includes updated information concerning consultation among the three air pollution control agencies administering CAA programs in Nevada (NDEP, Clark County Department of Air Quality, and Washoe County Health District's Air Quality Management Division) as well as regional planning and transportation agencies that also have certain air-quality-planning-related responsibilities. If finalized as proposed, NDEP's 2012 revision to Section 11 will entirely replace the existing SIP version of Section 11, approved on May 31, 1972 (37 FR 10842), in the Nevada SIP.
Nevada's 2012 revision to Section 11 (“Intergovernmental Consultation”) cites a number of statutes, two of which are included as exhibits to Section 11, NRS section 445B.503 (“Local air pollution control board in county whose population is 700,000 or more: Cooperation with regional planning coalition and regional transportation commission; prerequisites to adoption or amendment of plan, policy or program”) and NRS section 439.390 (“District board of health: Composition; qualifications of members”), that would be new to the SIP.
Fourth, in connection with our proposed approval of Nevada's Infrastructure SIP Submittals with respect to section 110(a)(2)(F)(ii) and (F)(iii), we note that EPA has proposed to approve three Nevada Administrative Code (NAC) sections cited by NDEP in its 2012 Submittal, NAC sections 445B.315(3), 445B.3368, and 445B.346, in a separate rulemaking (
Fifth and last, in connection with our proposed approval of Nevada's Infrastructure SIP Submittals with respect to section 110(a)(2)(F), our proposed approval with respect to this element for the Washoe County portion of the SIP relies on final approval of four Washoe County rules, 030.218, 030.230, 030.235, and 030.970, that were included in the 2012 Submittal. We proposed approval of these four Washoe County rules in a separate rulemaking signed on July 19, 2012.
EPA proposes to disapprove Nevada's Infrastructure SIP Submittals with respect to the following infrastructure SIP requirements (details of the partial approvals and partial disapprovals are presented after this list):
• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i) (in part): Interstate pollution transport. (Please see our 2006 PM
• Section 110(a)(2)(D)(ii) (in part): Interstate pollution abatement and international air pollution.
• Section 110(a)(2)(F) (in part): Stationary source monitoring and reporting.
• Section 110(a)(2)(J) (in part): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.
• Section 110(a)(2)(K) (in part): Air quality modeling and submission of modeling data.
As explained more fully in our Overarching TSD, we are proposing to disapprove Nevada's Infrastructure SIP Submittals for the NDEP and Washoe County portions of the SIP with respect to the permitting-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), 110(a)(2)(J), and 110(a)(2)(K) because the Nevada SIP does not fully satisfy the statutory and regulatory requirements for Prevention of Significant Deterioration (PSD) permit programs under part C, title I of the Act. Both NDEP and Washoe County AQMD currently implement the Federal PSD program in 40 CFR 52.21 for all regulated NSR pollutants, pursuant to delegation agreements with EPA. See 40 CFR 52.1485.
For Section 110(a)(2)(C), we propose to approve Nevada's Infrastructure SIP Submittals with respect to the requirement that the SIP include a program to provide for enforcement of the emissions limitations described in section 110(a)(2)(A). For the permitting-related requirements of section 110(a)(2)(C), we propose to approve the Clark County portion of the SIP, contingent on finalizing our proposed approval of Clark County's SIP revisions for the review of new or modified stationary sources,
With respect to the requirements regarding interstate transport in CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM
For the 1997 8-hour ozone and 1997 PM
For the requirement of CAA section 110(a)(2)(D)(i)(II) (regarding interference with other states' required measures to prevent significant deterioration of air quality), we propose to approve the Clark County portion of the SIP, and to disapprove the NDEP and Washoe County portions of the SIP, for the reasons discussed at the start of section III.B of this notice and our Overarching TSD. With respect to the requirement of CAA section 110(a)(2)(D)(i)(II) (regarding interference with other states' required measures to protect visibility), EPA previously approved Nevada's interstate transport SIP as satisfying this requirement for the 1997 ozone and 1997 PM
With respect to the requirements of CAA section 110(a)(2)(D)(ii), EPA proposes to approve Nevada's Infrastructure SIP Submittals with respect to the Clark County portion of the Nevada SIP, contingent on finalizing EPA's proposed approval of Clark County's SIP revisions for the review of new or modified stationary sources, and to disapprove the SIP with respect to the NDEP and Washoe County portions of the Nevada SIP, for the reasons discussed at the start of section III.B of this notice and in our Overarching TSD.
For Section 110(a)(2)(F), we propose to approve the Clark County portion of the SIP, contingent on finalizing EPA's proposed approval of Clark County's SIP revisions for the review of new or modified stationary sources, for subsections 110(a)(2)(F)(i) and 110(a)(2)(F)(ii). See our Overarching TSD. We propose to disapprove subsection 110(a)(2)(F)(iii) for the Clark County portion of the SIP because Clark County has repealed its regulation, Section 24, that formerly addressed the correlation requirement of this subsection, without submitting a SIP revision to replace it. For the NDEP and Washoe County portions of the SIP, we propose to approve Nevada's Infrastructure SIP Submittals for all three subsections. Note, however, that our proposed approval of subsections 110(a)(2)(F)(ii) and 110(a)(2)(F)(iii) for the Washoe County portion of the SIP is contingent on finalizing EPA's proposed approval of Washoe County Air Quality Regulations 030.218, 030.230, 030.235, and 030.970. See our Overarching TSD.
For Section 110(a)(2)(J) we propose to approve Nevada's Infrastructure SIP Submittals as meeting the consultation, public notification, and visibility requirements of this section. Our proposed approval with respect to the consultation requirements of this section are contingent on finalizing EPA's proposed approval of certain provisions of Nevada's 2012 Submittal, as described in section III.A of this notice. For the permitting-related requirements of section 110(a)(2)(J), we propose to approve the Clark County portion of the SIP, contingent on finalizing EPA's proposed approval of Clark County's SIP revisions for the review of new or modified stationary sources, and to disapprove the NDEP and Washoe County portions of the SIP, for the reasons discussed at the start of section III.B of this notice and in our Overarching TSD.
For Section 110(a)(2)(K), we propose to approve the Clark County portion of the SIP contingent on finalizing EPA's proposed approval of Clark County's SIP revisions for the review of new or modified stationary sources. See our Overarching TSD. We propose to disapprove the NDEP and Washoe County portions of the SIP with respect to the permit modeling requirements of section 110(a)(2)(K), for the reasons discussed at the start of section III.B of this notice and our Overarching TSD.
EPA takes very seriously a proposal to disapprove a state plan, as we believe that it is preferable, and preferred in the provisions of the Clean Air Act, that these requirements be implemented through state plans. A state plan need not contain exactly the same provisions that EPA might require, but EPA must be able to find that the state plan is consistent with the requirements of the Act. Further, EPA's oversight role requires that it assure consistent implementation of Clean Air Act requirements by states across the country, even while acknowledging that individual decisions from source to source or state to state may not have identical outcomes. EPA believes these proposed disapprovals are the only path that is consistent with the Act at this time.
Several of our proposed approvals rely on Nevada's 2012 Submittal, which was made under the parallel processing mechanism provided by 40 CFR part 51, appendix V, Section 2.3. If Nevada is not able to submit the fully adopted SIP revision anticipated by its 2012 Submittal by the end of August 2012, as stated in the letter transmitting the 2012 Submittal, EPA must still take final action by September 30, 2012,
For Section 110(a)(2)(E), in the absence of the anticipated SIP revisions, Nevada's 2008 Ozone Submittal, 2008 PM
With respect to CAA section 110(a)(2)(E)(ii), pertaining to conflict of interest requirements, absent receipt of the SIP revisions embodied by Nevada's 2012 Submittal—especially the Nevada Ethics in Government statutory provisions included in that submittal—we propose, in the alternative, to disapprove Nevada's 2008 and 2009 Infrastructure SIP Submittals as they do not address the various conflict of interest requirements.
Our proposed approval of subsections 110(a)(2)(F)(ii) and 110(a)(2)(F)(iii) for the Washoe County portion of the SIP are contingent upon finalizing EPA's proposed approval of four Washoe County regulations. Thus, absent receipt of these SIP revisions as embodied by Nevada's 2012 Submittal, we propose, in the alternative, to disapprove these two subsections for the Washoe County portion of the SIP because the local regulations supportive of these requirements are currently not in the SIP.
Lastly, in the absence of the SIP revisions anticipated by Nevada's 2012 Submittal, Nevada's formal submittals (
However, sections 110(a)(2)(J) and 110(a)(2)(M) address more than just rulemaking or permits, although such consultation may be relevant as part of the process for consultation required under CAA section 121. Moreover, a commitment to maintain an acceptable process of consultation is not a substitute for the identification of the process itself as part of the Nevada SIP. More broadly, the SIP still contains outdated information in Section 11 (“Intergovernmental Relations”), as approved on May 31, 1972 (37 FR 10842). While the Nevada SIP does have a number of statutes that authorize the state and counties to cooperate with local governments (
Several proposed approvals for the Clark County portion of the SIP rely on EPA finalizing its proposal of July 13, 2012 on Clark County's NSR program revisions. If EPA is unable to finalize the approvals embodied in that proposal, upon which our infrastructure SIP proposal relies (see our Overarching TSD for more details), EPA must still take final action by September 30, 2012, consistent with the terms of the consent decree entered October 20, 2011 in
• Section 110(a)(2)(C), pertaining to the requirement for a program for the review of new or modified stationary sources, including the PSD requirements under CAA title 1, part C;
• Section 110(a)(2)(D)(i)(II), pertaining to interference with other states' required measures to prevent significant deterioration of air quality;
• Section 110(a)(2)(D)(ii), pertaining to notification of other states affected by new or modified stationary sources, as per section 126(a);
• Section 110(a)(2)(F)(i) and 110(a)(2)(F)(ii), pertaining to the installation, maintenance, and replacement of equipment to monitor emissions from stationary sources, and periodic reports on those emissions;
• Section 110(a)(2)(J), pertaining to CAA title 1, part C (relating to prevention of significant deterioration of air quality); and
• Section 110(a)(2)(K), pertaining to permit modeling.
Section 110(l) of the Act prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of the Act. All of the elements of Nevada's Infrastructure SIP Submittals that we are proposing to approve, as explained in our Overarching TSD and Section 128 TSD, would improve the SIP by replacing obsolete provisions and by providing new provisions addressing the resources, conflict of interest, stationary source monitoring, and consultation requirements of the CAA. We propose to determine that our approval of these elements of Nevada's Infrastructure SIP Submittals would comply with CAA section 110(l) because the proposed SIP revision would not interfere with the on-going process for ensuring that requirements for RFP and attainment of the NAAQS are met, and the submitted SIP revision
Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of part D, title I of the CAA (CAA sections 171–193) or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a sanctions clock. Nevada's Infrastructure SIP Submittals were not submitted to meet either of these requirements. Therefore, any action we take to finalize the described partial disapprovals will not trigger mandatory sanctions under CAA section 179.
In addition, CAA section 110(c)(1) provides that EPA must promulgate a Federal Implementation Plan (FIP) within two years after finding that a State has failed to make a required submission or disapproving a State implementation plan submission in whole or in part, unless EPA approves a SIP revision correcting the deficiencies within that two-year period. With respect to our proposed partial approval and partial disapproval of Nevada's submissions related to interstate transport under CAA section 110(a)(2)(D)(i)(I), however, we propose to conclude that any FIP obligation resulting from finalization of the partial disapproval would be satisfied by our determination that there is no deficiency in the SIP to correct. Finalization of this proposed disapproval also would not require any further action on Nevada's part given EPA's conclusion that the SIP is adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, I certify that this proposed action will not have a significant impact on a substantial number of small entities. This proposed rule does not impose any requirements or create impacts on small entities. This proposed partial SIP approval and partial SIP disapproval under CAA section 110 will not in-and-of itself create any new requirements but simply proposes to approve certain State requirements, and to disapprove certain other State requirements, for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. Therefore, this action will not have a significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for State, local, or tribal governments or the private sector. EPA has determined that the proposed partial approval and partial disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This action proposes to approve certain pre-existing requirements, and to disapprove certain other pre-existing requirements, under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this proposed action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely proposes to approve certain State requirements, and to disapprove certain other State requirements, for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does not apply to this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP on which EPA is proposing action would not 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. Thus, Executive Order 13175 does not apply to this proposed action.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This proposed action is not subject to EO 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed partial approval and partial disapproval under CAA section 110 will not in-and-of itself create any new regulations but simply proposes to approve certain State requirements, and to disapprove certain other State requirements, for inclusion into the SIP.
This proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The EPA believes that this proposed action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA lacks the discretionary authority to address environmental justice in this proposed rulemaking.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule; Notice of public hearing.
The EPA has been requested to hold a public hearing on its proposed rule, “National Emission Standards for Hazardous Air Pollutants for the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants,” which was published in the
The public hearing will be held on August 16, 2012. The Administrator will keep the record of the public hearing open for 30 days after completion of the hearing to provide an opportunity for submission or rebuttal and supplementary information. The date for submitting comments on the proposed rule is unchanged from August 17, 2012.
The hearing will be held at the Arlington Municipal Building in the City Council Chambers located at 101 W. Abram Street, Arlington, Texas 76010; Telephone: (817) 459–6122.
The public hearing will convene at 9:00 a.m. and will continue until 7:00 p.m. A lunch break is scheduled from 12:00 p.m. until 1:00 p.m. The EPA's Web site for the rulemaking, which includes the proposal and information about the hearing, can be found at:
If you would like to present oral testimony at the public hearing, please contact Ms. Pamela Garrett, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Sector Policies and Programs Division (D243–01), Research Triangle Park, North Carolina 27711; telephone: (919) 541–7966; fax number: (919) 541–5450; email address:
Questions concerning the proposed rule (77 FR 42368, July 18, 2012) should be addressed to Ms. Sharon Nizich, Office of Air Quality Planning and Standards; Sector Policies and Programs Division, Minerals and Manufacturing Group (D243–04); Environmental Protection Agency; Research Triangle Park, North Carolina 27111; telephone number: (919) 541–2825; fax number: (919) 541–5450; email address:
Commenters should notify Ms. Garrett if they will need specific equipment or if there are other special needs related to providing comments at the public hearing. The EPA will provide equipment for commenters to make computerized slide presentations if we receive special requests in advance. Oral testimony will be limited to 5 minutes for each commenter. The EPA encourages commenters to submit to the docket a copy of their oral testimony electronically (via email or CD) or in hard copy form.
The public hearing schedule, including a list of speakers, will be posted on the EPA's Web site at:
The EPA has established a docket for the proposed rule, “National Emission Standards for Hazardous Air Pollutants for the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants” under Docket ID No. EPA–HQ–OAR–2011–0817, available at
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
Animal and Plant Health Inspection Service, USDA.
Notice of availability and request for comments.
We are advising the public that a draft environmental assessment has been prepared by the Animal and Plant Health Inspection Service relative to the proposed release of
We will consider all comments that we receive on or before September 4, 2012.
You may submit comments by either of the following methods:
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The environmental assessment and any comments we receive may be viewed at
Dr. Shirley A. Wager-Page, Chief, Pest Permitting Branch, Registration, Identification, Permitting, and Plant Safeguarding, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737–1236; (301) 851–2323.
The soybean aphid,
The Animal and Plant Health Inspection Service (APHIS) is proposing to issue permits for the field release of the insect
APHIS' review and analysis of the potential environmental impacts associated with these proposed field tests are documented in detail in an environmental assessment entitled “Field Release of
The environmental assessment may be viewed on the Regulations.gov Web site or in our reading room (see
The environmental assessment has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service has prepared an environmental assessment relative to the release of
We will consider all comments that we receive on or before September 4, 2012.
You may submit comments by either of the following methods:
•
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS–2012–0060, Regulatory Analysis and Development, PPD, APHIS, Station 3A–03.8, 4700 River Road Unit 118, Riverdale, MD 20737–1238.
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Shirley A. Wager-Page, Chief, Pest Permitting Branch, Registration, Identification, Permitting, and Plant Safeguarding, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737–1236; (301) 851–2323.
The Animal and Plant Health Inspection Service (APHIS) is proposing to issue permits for the release of
Hemlock woolly adelgid was accidentally introduced to the eastern United States from Asia. Although native to the western United States, in the eastern United States, hemlock woolly adelgid is a destructive pest of the eastern hemlock (
Four predatory beetles have been introduced to the eastern United States as biological controls of hemlock woolly adelgid with two of these considered established in the eastern United States. However, because hemlock woolly adelgid has a multigenerational lifestyle with multiple forms appearing at different times during the year, a group of natural predators similar to that found in areas in which it is native is needed in order to provide more efficient control. Therefore, APHIS is proposing to issue permits for the release of
The proposed biological control agent,
APHIS' review and analysis of the potential environmental effects associated with the proposed action are documented in detail in an environmental assessment (EA) entitled “Release of the Predatory Beetle
The EA may be viewed on the Regulations.gov Web site or in our reading room. (Instructions for accessing Regulations.gov and information on the location and hours of the reading room are provided under the heading
The EA has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Animal and Plant Health Inspection Service, USDA.
Notice of meeting.
We are giving notice of a meeting of the General Conference Committee of the National Poultry Improvement Plan (NPIP) and the NPIP's 41st Biennial Conference.
The General Conference Committee meeting will be held on September 25, 2012, from 12 p.m. to 4 p.m. The Biennial Conference will meet on September 26, 2012, from 8 a.m. to 5 p.m., and on September 27, 2012, from 8 a.m. to 12 p.m.
The meeting will be held at the Loews New Orleans Hotel, 300 Poydras Street, New Orleans, LA.
Dr. C. Stephen Roney, Senior Coordinator, National Poultry Improvement Plan, VS, APHIS, 1506 Klondike Road, Suite 300, Conyers, GA 30094–5173, (770) 922–3496.
The General Conference Committee (the Committee) of the National Poultry Improvement Plan (NPIP), representing cooperating State agencies and poultry industry members, serves an essential function by acting as a liaison between the poultry
industry and the Department in matters pertaining to poultry health. The Committee meets to discuss significant poultry health issues and makes recommendations to improve the NPIP program.
Topics for discussion at the upcoming meetings include:
1. Salmonella testing.
2. Technical Committee report.
3. Avian influenza.
4. USDA regulatory review.
The meetings will be open to the public. However, due to time constraints, the public will not be allowed to provide oral comments pertaining to the discussions during either of the meetings. Written statements on meeting topics may be filed with the Committee before or after the meeting by sending them to the person listed under
If you require special accommodations, such as a sign language interpreter, please call or write the individual listed under
This notice of meeting is given pursuant to section 10 of the Federal Advisory Committee Act (5 U.S.C. App. 2).
Forest Service, USDA.
Notice of meeting.
The Chippewa National Forest Resource Advisory Committee will meet in Walker, Minnesota. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110–343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review with the Chippewa National Forest Resource Advisory Committee members their roles and responsiblities, review project proposals and develop project priorities.
The meeting will be held Wednesday, August 29, 2012, 9:00 a.m.
The meeting will be held at Chase on the Lake, Meeting Room, 502 Cleveland Blvd. West, Walker, Minnesota 56484. Written comments should be sent to Chippewa National Forest RAC, 200 Ash Avenue NW., Cass Lake, MN 56633. Comments may also be sent via email to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Chippewa National Forest Supervisors Office. Please call ahead to 218–335–8600 to facilitate entry into the building to view comments.
Todd Tisler, Forest Ecologist, Chippewa National Forest Forest Supervisor's Office, 218–335–8600.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accomodation for access to the facility or procedings may be made by contacting the person listed
The meeting is open to the public. The following business will be conducted: review project proposals and develop project priorities. The agenda and any applicable documents may be previewed at
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to seek approval to conduct a new information collection, the 2013 Residue and Biomass Field Survey.
Comments on this notice must be received by October 2, 2012 to be assured of consideration.
You may submit comments, identified by docket number 0535–NEW, 2013 Residue and Biomass Field Survey by any of the following methods:
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Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720–4333.
The Residue and Biomass Field Survey will use as a sampling universe fields in the South Fork watershed in central Iowa (Buckeye, IA). This study will investigate the effect crop residue removal has on soil and water quality. With the respondent's permission, measurements of crop residues will be compared with remote sensed data to measure crop residue cover and soil tillage intensity for the entire watershed. The survey will be conducted in several phases. The farm operator will only be involved in part of the survey. With the farmers permission the field enumerators will return several times during the growing season to measure and collect samples from the target areas.
The primary objectives of the National Agricultural Statistics Service are to prepare and issue State and national estimates of crop production, livestock production, economic statistics, and environmental statistics related to agriculture and to conduct the Census of Agriculture and it's follow-on surveys. This project is conducted as a cooperative effort with USDA's Agricultural Research Service (ARS).
These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985 as amended, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13) and
NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E–Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),”
Copies of this information collection and related instructions can be obtained without charge from the NASS OMB Clearance Officer, at (202) 720–2248.
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the City of Battle Creek, Michigan, grantee of FTZ 43, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a–81u), and the regulations of the Board (15 CFR part 400). It was formally filed on July 30, 2012.
FTZ 43 was approved by the Board on October 19, 1978 (Board Order 138, 43 FR 50233, 10–27–1978) and expanded on December 27, 1990 (Board Order 496, 56 FR 675, 1–8–1991); January 3, 1992 (Board Orders 554 and 555, 57 FR 1143, 1–10–1992); and, June 20, 1997 (Board Orders 897 and 898, 62 FR 36043–36044, 7–3–1997).
The current zone project includes the following sites:
The grantee's proposed service area under the ASF would be Allegan, Barry, Berrien, Branch, Calhoun, Cass, Clinton, Eaton, Ingham, Ionia, Jackson, Kalamazoo, St. Joseph and Van Buren Counties, Michigan, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Battle Creek Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to include existing Site 1 as a “magnet” sites and existing Site 8 as a “usage-driven” site. The application would have no impact on FTZ 43's previously authorized subzones.
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 2, 2012. Rebuttal comments in
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
Takasago International Corporation (Takasago) submitted a notification of proposed production activity for their facility located in Harriman, New York. The notification conforming to the requirements of the regulations of the Board (15 CFR 400.22) was received on July 26, 2012
The Takasago facility is located within Site 10 of FTZ 37. The facility is used for the manufacturing of fragrance compounds. Production under FTZ procedures could exempt Takasago from customs duty payments on the foreign status components used in export production. On its domestic sales, Takasago would be able to choose the duty rates during customs entry procedures that apply to fragrances (duty-free) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
Components and materials sourced from abroad include: Caryophyllene acetate; cooling agents; coolact; DH citronellol; DH citronellal; florasantol; hydroxycitronellal DMA; hedirosa; kovanol; 1aurinal; lemon oil; longozal; L-citrol; mercaptomenthone; meth-4-propyl-1, 3-oxathia; muscone; meth fenchol; thiogeraniol; verdone; furfural; heliotropine; meth caproate; terpene T “SP”; thesaron; cis-jasmone; citronellol-L; trepanol; menthol; musk; oxalide; perilla oil; cyclohexyl lactone; hotact VBE; santalex T; heliotropyl acetate; ambretone; menthol-L synthetic flakes; citral natural; citronellyl formate; citronellyl tiglate; coniferan; fenchyl ALC; hindinol; isoproppoxy ether; isobornyl methyl ether; menthone; ionones and methylionones; orbitone; pinene; TH geranyl acetate; bornyl acetate; citronellal extra; dihydromyrcenol; fenchyl acetate; fenchyl alcohol; dimethyl dioxolan; isopropoxyethyl; lavender oil; limonene-L; levosandol; myrcene; methyl ionone gamma; nerol; nopyl acetate; phellandrene; terpinen-4-ol; tetrahydro myrcenol; terpinene; estragole; neryl acetate; suzaral; citronellyl nitrile; camphene; citronellal natural; geraniol; methyl dioxolan; citral; violet; isobornyl methyl ether; cypressan; terpinene gamma; cedanol; ambrinol; methyl ionone; and other aroma chemicals, mixtures of odiferous substances and essential oils (duty rate ranges from duty free to 7%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is September 12, 2012.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Elizabeth Whiteman at
Import Administration, International Trade Administration, Department of Commerce.
In response to requests by interested parties, the Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on certain pasta (“pasta”) from Italy for the period of review (“POR”) July 1, 2010, through June 30, 2011. This review covers the following seven companies: Botticelli Mediterraneo S.a.r.l. (“Botticelli”), Fiamma Vesuviana S.r.L. (“Fiamma”), Industria Alimentare Filiberto Bianconi 1947 S.p.A. (“Filiberto”), Pastificio Fratelli Cellino, S.r.l. (“Fratelli”), Pastificio Attilio Mastromauro Granoro S.r.L. (“Granoro”), Rummo S.p.A. Molino e Pastificio and its affiliates (“Rummo”), and Pastificio Zaffiri (“Zaffiri”). We preliminarily find that Rummo, Filiberto, Fratelli, and Zaffiri sold subject merchandise at less than normal value (NV) (dumping). We further find that there were no exports of subject merchandise to the United States during the POR by Fiamma and Botticelli. Finally, in response to its request for revocation and because this would be the third year of no dumping by Granoro, we preliminarily intend to revoke the antidumping duty order with regard to Granoro. If these preliminary results are adopted in the final results of this administrative review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries of subject merchandise during the POR. Interested parties are invited to comment on these preliminary results.
Dennis McClure or George McMahon AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–5973 or (202) 482–1167, respectively.
On July 24, 1996, the Department published in the
On September 13, 2011, the Department announced its intention to select mandatory respondents based on U.S. Customs and Border Protection (“CBP”) data.
Between October 2011 and June 2012, the Department issued its initial questionnaire
On February 28, 2012, the Department fully extended the due date for the preliminary results of review from April 2, 2012, to July 30, 2012.
The Department conducted the sales verification of Granoro from May 28, 2012, through June 1, 2012, in Bari, Italy. The Department conducted the cost verification of Granoro from May 21, 2012, through May 25, 2012, in Bari, Italy.
As provided in section 782(i) of the Act, we have verified information provided by Granoro. We conducted this verification using standard verification procedures including the examination of relevant sales and financial records and the selection and review of original documentation containing relevant information. Our verification results are outlined in the public version of our verification reports, which are on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). Access to IA ACCESS is available in the Central Records Unit, room 7046 of the main Department of Commerce building.
On August 30, 2011, and September 6, 2011, Fiamma
Our past practice concerning no-shipment respondents was to rescind the administrative review if the respondent certified that it had no shipments and we confirmed the certified statement through an examination of CBP data.
The petitioners note that they conducted their own targeted dumping analysis of Granoro's and Rummo's U.S. sales using the Department's targeted dumping methodology as applied in
For purposes of these preliminary results, the Department did not conduct a targeted dumping analysis. In calculating the preliminary weighted-average dumping margin, the Department applied the calculation methodology adopted in the
Imports covered by this order are shipments of certain non-egg dry pasta in packages of five pounds four ounces or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastasis, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags of varying dimensions.
Excluded from the scope of this order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. Also excluded are imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by the Instituto Mediterraneo Di Certificazione, by QC&I International Services, by Ecocert Italia, by Consorzio per il Controllo dei Prodotti Biologici, by Associazione Italiana per l'Agricoltura Biologica, by Codex S.r.L., by Bioagricert S.r.L., or by Instituto per la Certificazione Etica e Ambientale. Effective July 1, 2008, gluten free pasta is also excluded from this order.
The merchandise subject to this order is currently classifiable under items 1902.19.20 and 1901.90.9095 of the
On July 29, 2011, Granoro requested revocation of the order on pasta from Italy as it pertains to its sales. Pursuant to section 751(d)(1) of the Act, the Department “may revoke, in whole or in part” an antidumping duty order upon completion of a review. Although
A request for revocation of an order in part for a company previously found dumping must address three elements. The company requesting the revocation must do so in writing and submit the following statements with the request: (1) The company's certification that it sold the subject merchandise at not less than normal value during the current review period and that, in the future, it will not sell at less than normal value; (2) the company's certification that, during each of the consecutive years forming the basis of the request, it sold the subject merchandise to the United States in commercial quantities; (3) the agreement to reinstatement in the order if the Department concludes that, subsequent to revocation, the company has sold the subject merchandise at less than normal value.
With regard to the criteria of 19 CFR 351.222(b)(2), our preliminary margin calculations show that Granoro sold pasta at not less than normal value during the current review period.
Therefore, we preliminarily determine that Granoro qualifies for revocation from the order on pasta from Italy pursuant to 19 CFR 351.222(b)(2) and, thus, we preliminarily determine to revoke the order with respect to pasta from Italy exported and/or sold to the United States by Granoro. If our intent to revoke results in revocation of the order in part with respect to merchandise exported and/or sold by Granoro, the proposed effective date of the revocation is July 1, 2011.
In accordance with section 771(16) of the Tariff Act of 1930, as amended (the Act), we first attempted to match contemporaneous sales of products sold by Granoro and Rummo in the United States and comparison markets that were identical with respect to the following characteristics: (1) Pasta shape; (2) wheat species; (3) milling form; (4) protein content; (5) additives; and (6) enrichment. In this review, the respondents did not report the protein content as indicated on the packaging of the finished pasta, but instead reported based on their internal production records. Therefore, we clarified in a supplemental questionnaire to the respondents that they were expected to report the protein content based on the protein content indicated on the packaging of the finished product. In our calculations we used the protein content indicated on the packaging of the finished product, as reported by the respondents in their supplemental questionnaire responses. When there were no sales of identical merchandise in the comparison market to compare with U.S. sales, we compared U.S. sales with the most similar product based on the characteristics listed above, in descending order of priority. When there were no appropriate comparison market sales of comparable merchandise, we compared the merchandise sold in the United States to CV, in accordance with section 773(a)(4) of the Act.
We made comparisons to weighted-average comparison market prices that were based on all sales which passed the cost-of-production test and on those sales which did not pass the cost-of-production test but were made at prices which were considered to have provided for the recovery of costs within a reasonable period of time. Specifically, in making our comparisons, if an identical home market model was reported, we made comparisons to monthly weighted-average home market prices that were based on all relevant sales during the contemporary month or, lacking such sales, to a previous or subsequent month in the shorter cost period (
For purposes of the preliminary results, where appropriate, we have calculated the adjustment for differences in merchandise based on the difference in the variable cost of
To determine whether sales of certain pasta from Italy were made in the United States at prices below NV, we compared the export price (EP) or constructed export price (CEP) to the NV, as described in the “Export Price and Constructed Export Price” and “Normal Value” sections of this notice. Pursuant to 19 CFR 351.414(c)(1) and (d), we compared the monthly weighted-average export price of U.S. transactions to the monthly weighted-average normal value of the comparable foreign like product where there were sales made in the ordinary course of trade.
For the price to the United States, we used, as appropriate, EP or CEP, in accordance with sections 772(a) and (b) of the Act. Pursuant to section 772(a) of the Act, we used the EP methodology when the merchandise was first sold by the producer or exporter outside the United States directly to the unaffiliated purchaser in the United States prior to importation and when CEP was not otherwise warranted based on the facts on the record. We calculated CEP for those sales where a person in the United States, affiliated with the foreign exporter or acting for the account of the exporter, made the first sale to the unaffiliated purchaser in the United States of the subject merchandise.
In addition, when appropriate, we increased EP by an amount equal to the countervailing duty (“CVD”) rate attributed to export subsidies in the most recently completed CVD administrative review, in accordance with section 772(c)(1)(C) of the Act. For CEP, in accordance with section 772(d)(1) of the Act, when appropriate, we deducted from the starting price those selling expenses that were incurred in selling the subject merchandise in the United States, including direct selling expenses (cost of credit, warranty, and other direct selling expenses). These expenses also include certain indirect selling expenses incurred by unaffiliated U.S. commission agents.
Section 773(a)(1) of the Act directs that NV be based on the price of the foreign like product sold in the home market, provided that the merchandise is sold in sufficient quantities (or value, if quantity is inappropriate) and that there is no particular market situation that prevents a proper comparison with the export price or constructed export price. The statute contemplates that quantities (or value) normally be considered insufficient if they are less than five percent of the aggregate quantity (or value) of sales of the subject merchandise to the United States. To determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared each respondent's volume of home market sales of the foreign like product to the volume of its U.S. sales of the subject merchandise. Pursuant to section 773(a)(1)(B) of the Act, because Granoro and Rummo each had an aggregate volume of home market sales of the foreign like product that was greater than five percent of its aggregate volume of U.S. sales of the subject merchandise, we determined that the home market was viable for both Granoro and Rummo.
Granoro reported that all of its sales to the Italian market are to unaffiliated customers; however, it made a few sales to employees and shareholders and coded such sales as affiliated sales.
In the most recently completed segment of the proceeding in which Granoro and Rummo participated, the Department determined that the aforementioned respondents sold the foreign like product at prices below the cost of producing the merchandise and, as a result, we excluded such sales from the calculation of normal value.
The Department's normal practice is to calculate an annual weighted-average cost for the POR.
In prior cases, we established 25 percent as the threshold (between the high- and low- quarter COM) for determining that the changes in COM are significant enough to warrant a departure from our standard annual-average cost approach.
b. Linkage Between Cost and Sales Information
Consistent with past precedent, because we found the changes in costs to be significant, we evaluated whether there is evidence of a linkage between the cost changes and the sales prices during the POR.
Before making comparisons to normal value, we conducted a COP analysis of Granoro's and Rummo's sales pursuant to section 773(b)(3) of the Act to determine whether home market sales were made at prices below COP and that these costs were not recoverable within a reasonable period of time. For this analysis, the COP is based on a quarterly average COP rather than an annual average COP.
In accordance with sections 773(b)(1)(A) and (B) of the Act, for sales found to be made below cost, we examined whether, within an extended period of time, such sales were made in substantial quantities, and whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. As stated in section 773(b)(2)(D) of the Act, prices are considered to provide for recovery of costs if such prices are above the weighted average per-unit COP for the period of investigation or review.
In light of the Court's directives in
We found that for certain products, more than 20 percent of Granoro's and Rummo's home market sales were made at prices below COP and, in addition, these below cost sales were made within an extended period of time and in substantial quantities. In addition, pursuant to the cost recovery analysis described above, we found that these sales were at prices which did not permit the recovery of costs within a reasonable period of time. Therefore, we disregarded these sales from the calculation of normal value, in accordance with section 773(b)(1) of the Act.
We calculated NV based on ex-works, free on board (“FOB”) or delivered prices to comparison market customers. We made deductions from the starting price, when appropriate, for discounts and rebates. We added expenses recovered from customers. We deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act. We also deducted home market movement expenses pursuant to section 773(a)(6)(B) of the Act. In addition, we made adjustments for differences in circumstances of sale (“COS”) pursuant to section 773(a)(6)(C)(iii) of the Act. Specifically, we made adjustments to normal value for comparison to Granoro's and Rummo's EP transactions by deducting direct selling expenses incurred for home market sales (
When comparing U.S. sales with comparison market sales of similar, but not identical, merchandise, we also made adjustments for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this adjustment on the difference in the VCOM for the foreign like product and subject merchandise, using weighted-average costs.
Sales of pasta purchased by Granoro and Rummo from unaffiliated producers and resold in the comparison market were disregarded.
In accordance with section 773(a)(1)(B) of the Act, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP and CEP sales, to the extent practicable. When there are no sales at the same LOT, we compare U.S. sales to comparison market sales at a different LOT. When NV is based on CV, the NV LOT is that of the sales from which we derive SG&A expenses and profit.
Pursuant to 19 CFR 351.412(c)(2), to determine whether comparison market sales were at a different LOT, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated (or arm's-length affiliated) customers. The Department identifies the LOT based on: The starting price or constructed value (for normal value); the starting price (for EP sales); and the starting price, as adjusted under section 772(d) of the Act (for CEP sales). If the comparison-market sales were at a different LOT and the differences affect price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we will make an LOT adjustment under section 773(a)(7)(A) of the Act.
Finally, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the differences in LOT between NV and CEP affected price comparability, we will grant a CEP offset, as provided in section 773(a)(7)(B) of the Act.
Granoro indicated there was a single level of trade for all sales in both markets, and petitioners have not claimed that multiple levels of trade existed for Granoro. Granoro provided information regarding channels of distribution and selling activities performed for different categories of customers.
Rummo reported that there was a single level of trade for its sales in the home market and claimed two levels of trade in the U.S. market. Rummo provided information regarding channels of distribution and selling activities performed for different categories of customers.
For a detailed description of our LOT methodology and a summary of company-specific LOT findings for these preliminary results, see our analysis contained in Preliminary Results Sales Analysis Memo—Granoro and Preliminary Results Sales Analysis Memo—Rummo.
For purposes of these preliminary results, we made currency conversions in accordance with section 773A(a) of the Act, based on the official exchange rates published by the Federal Reserve Bank.
As a result of our review, we preliminarily determine that the following weighted-average percentage margins exist for the period July 1, 2010, through June 30, 2011:
The Department intends to disclose the calculations performed for these preliminary results within five days of the date of publication of this notice to the parties of this proceeding, in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of this notice in the
Interested parties are invited to comment on the preliminary results of this review. Interested parties may submit case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than 35 days after the date of publication of this notice. Parties who submit case briefs or rebuttal briefs in this review are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument with an electronic version included.
Pursuant to 19 CFR 351.213(h), the Department intends to issue the final results of this review, including the results of our analysis of issues raised in any submitted written comments, within 120 days after publication of this notice.
Pursuant to 19 CFR 351.212(b), the Department calculated an assessment rate for each importer of the subject merchandise. Upon issuance of the final results of this administrative review, if any importer-specific assessment rates calculated in the final results are above
The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these preliminary results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification,
To calculate the cash deposit rate, we divided the total dumping margin by the total net value of the sales during the review period. The following deposit rates will be effective upon publication of the final results of this administrative review for all shipments of pasta from Italy entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for companies subject to this review will be the rate established in the final results of this review, except if the rate is less than 0.5 percent and, therefore,
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and increase the subsequent assessment of the antidumping duties by the amount of antidumping duties reimbursed.
These preliminary results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
On April 2, 2012, the Department of Commerce (the Department) initiated the third sunset review of the antidumping duty order on certain small diameter seamless carbon and alloy steel standard, line, and pressure pipe (seamless pipe) from Germany pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).
Ericka Ukrow or Angelica Mendoza, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–0405 or (202) 482–3019, respectively.
On April 2, 2012, the Department initiated the sunset review of the antidumping duty order on seamless pipe from Germany pursuant to section 751(c) of the Act.
The scope of the order includes small diameter seamless carbon and alloy standard, line and pressure pipes (seamless pipes) produced to the ASTM A–335, ASTM A–106, ASTM A–53 and API 5L specifications and meeting the physical parameters described below, regardless of application. The scope of the order also includes all products used in standard, line, or pressure pipe applications and meeting the physical parameters below, regardless of specification.
For purposes of the order, seamless pipes are seamless carbon and alloy (other than stainless) steel pipes, of circular cross-section, not more than 114.3 mm (4.5 inches) in outside diameter, regardless of wall thickness, manufacturing process (hot-finished or cold-drawn), end finish (plain end, beveled end, upset end, threaded, or threaded and coupled), or surface finish. These pipes are commonly known as standard pipe, line pipe or pressure pipe, depending upon the application. They may also be used in structural applications. Pipes produced in non-standard wall thicknesses are commonly referred to as tubes.
The seamless pipes subject to the order are currently classifiable under subheadings 7304.19.10.20, 7304.19.50.20, 7304.31.60.50, 7304.39.00.16, 7304.39.00.20, 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.51.50.05, 7304.51.50.60, 7304.59.60.00, 7304.59.80.10, 7304.59.80.15, 7304.59.80.20, and 7304.59.80.25 of the Harmonized Tariff Schedule of the United States (HTSUS).
The following information further defines the scope of the order, which covers pipes meeting the physical parameters described above:
Specifications, Characteristics and Uses: Seamless pressure pipes are intended for the conveyance of water, steam, petrochemicals, chemicals, oil products, natural gas and other liquids and gasses in industrial piping systems. They may carry these substances at elevated pressures and temperatures and may be subject to the application of external heat. Seamless carbon steel pressure pipe meeting the American Society for Testing and Materials (ASTM) standard A–106 may be used in temperatures of up to 1000 degrees Fahrenheit, at various American Society of Mechanical Engineers (ASME) code stress levels. Alloy pipes made to ASTM standard A–335 must be used if temperatures and stress levels exceed those allowed for A–106 and the ASME codes. Seamless pressure pipes sold in the United States are commonly produced to the ASTM A–106 standard.
Seamless standard pipes are most commonly produced to the ASTM A–53 specification and generally are not intended for high temperature service. They are intended for the low temperature and pressure conveyance of water, steam, natural gas, air and other liquids and gasses in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipes (depending on type and code) may carry liquids at elevated temperatures but must not exceed relevant ASME code requirements.
Seamless line pipes are intended for the conveyance of oil and natural gas or other fluids in pipe lines. Seamless line pipes are produced to the API 5L specification.
Seamless pipes are commonly produced and certified to meet ASTM
The primary application of ASTM A–106 pressure pipes and triple certified pipes is in pressure piping systems by refineries, petrochemical plants and chemical plants. Other applications are in power generation plants (electrical-fossil fuel or nuclear), and in some oil field uses (on shore and off shore) such as for separator lines, gathering lines and metering runs. A minor application of this product is for use as oil and gas distribution lines for commercial applications. These applications constitute the majority of the market for the subject seamless pipes. However, A–106 pipes may be used in some boiler applications.
The scope of the order includes all seamless pipe meeting the physical parameters described above and produced to one of the specifications listed above, regardless of application, and whether or not also certified to a non-covered specification. Standard, line and pressure applications and the above-listed specifications are defining characteristics of the scope of the order. Therefore, seamless pipes meeting the physical description above, but not produced to the A–335, A–106, A–53, or API 5L standards shall be covered if used in a standard, line or pressure application.
For example, there are certain other ASTM specifications of pipe which, because of overlapping characteristics, could potentially be used in A–106 applications. These specifications generally include A–162, A–192, A–210, A–333, and A–524. When such pipes are used in a standard, line or pressure pipe application, such products are covered by the scope of the order.
Specifically excluded from the order are boiler tubing and mechanical tubing, if such products are not produced to A–335, A–106, A–53 or API 5L specifications and are not used in standard, line or pressure applications. In addition, finished and unfinished oil country tubular goods (OCTG) are excluded from the scope of the order, if covered by the scope of another antidumping duty order from the same country. If not covered by such an OCTG order, finished and unfinished OCTG are included in the scope when used in standard, line or pressure applications. Finally, also excluded from the order are redraw hollows for cold-drawing when used in the production of cold-drawn pipe or tube.
Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
All issues raised in this case are addressed in the “Issues and Decision Memorandum” from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, dated concurrently with this notice (Decision Memorandum), which is hereby adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memorandum, which is on file electronically via IA ACCESS in the Central Records Unit, Room 7046, of the main Department of Commerce building.
In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at
The Department determines that revocation of the antidumping duty order on seamless pipe from Germany would likely lead to continuation or recurrence of dumping. Further, the Department finds that the magnitude of dumping likely to prevail if the order was revoked is 57.72 percent for Mannesmannrohren Werke AG and for all other German producers and exporters of subject merchandise.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
The Department is issuing and publishing the results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) is conducting an administrative review of the countervailing duty order on certain pasta (“pasta”) from Turkey for the period January 1, 2010, through December 31, 2010. We preliminarily determine that the net subsidy rate for the companies under review is
David Layton at 202–482–0371 or Christopher Siepmann at 202–482–7958, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On July 1, 2011, the Department published a notice of opportunity to request an administrative review of the countervailing duty order on pasta from Turkey.
On August 26, 2011, the Department initiated an administrative review of the countervailing duty order on pasta from Turkey for the period January 1, 2010, through December 31, 2010, covering Marsan, Birlik, Bellini, and Marsa Yag.
The scope of the order consists of certain non–egg dry pasta in packages of five pounds (or 2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by the order is typically sold in the retail market, in fiberboard or cardboard cartons or polyethylene or polypropylene bags, of varying dimensions.
Excluded from the scope of the order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non–egg dry pasta containing up to two percent egg white.
The merchandise under review is currently classifiable under subheading 1902.19.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
The period of review (“POR”) for which we are measuring subsidies is January 1, 2010, through December 31, 2010.
In their Review Request, Marsan, Birlik, Bellini, and Marsa Yag claimed to be “affiliates.” Upon initiation, the Department used the same language contained in the Review Request. However, by referring to Marsan's “affiliates” in the
In a countervailing duty proceeding, the Department is primarily concerned not with affiliation, but with cross-ownership.
Based on our review of the totality of arguments and information submitted by Marsan, Birlik, Bellini and Marsa Yag, we preliminarily determine that cross-ownership existed between Birlik and Bellini, and a third company, Istanbul Gida Dis Ticaret A.Ş. (“Istanbul Gida”), which exported subject merchandise produced by Birlik and Bellini to the United States during the POR.
Although Marsa Yag was among the companies that requested a review, there is no indication that Marsa Yag produced subject merchandise or exported subject merchandise to the United States during the POR. Therefore, Marsa Yag is not a proper respondent in this review. Nor does Marsa Yag otherwise meet the criteria of 19 CFR 351.525(b)(6)(iii)–(v). Therefore, although Marsa Yag would be considered as cross-owned with Birlik, Bellini and Istanbul Gida, we have not included Marsa Yag in calculating the countervailing duty rate for Birlik, Bellini, and Istanbul Gida, and the rate calculated for those companies would not apply to any future entries from Marsa Yag.
The Department's regulations at 19 CFR 351.525(b)(6)(i) state that the Department will normally attribute a subsidy to the products produced by the corporation that received the subsidy. However, 19 CFR 351.525(b)(6)(ii)–(v) direct that the Department will attribute subsidies received by certain other companies to the combined sales of those companies if (1) cross-ownership exists between the companies, and (2) the cross-owned companies produce the subject merchandise, are a holding or parent company of the subject company, produce an input that is primarily dedicated to the production of the downstream product, or transfer a subsidy to a cross-owned company. The Court of International Trade (“CIT”) has upheld the Department's authority to attribute subsidies based on whether a company could use or direct the subsidy benefits of another company in essentially the same way it could use its own subsidy benefits.
Birlik, Bellini and Istanbul Gida: As discussed above, the Department preliminarily determines that Birlik and Bellini were cross-owned. Additionally, Birlik and Bellini were producers of subject merchandise during the POR.
Marsan: As discussed above, the Department preliminarily determines that Marsan is not cross-owned with Birlik, Bellini or Marsa Yag. Also, during the POR, Marsan did not produce subject merchandise. It did, however, act as a trading company by exporting to the United States subject merchandise produced by Birlik and Bellini. Pursuant to 19 CFR 351.525(c), the Department will cumulate benefits from subsidies provided to trading
Pursuant to 19 CFR 351.524(b), benefits from non-recurring subsidies are allocated over a period corresponding to the average useful life (“AUL”) of the renewable physical assets used to produce the subject merchandise. The Department's regulations create a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's Class Life Asset Depreciation Range System (“IRS Tables”).
Based on our analysis of the responses to our questionnaires, we preliminarily determine the following:
Article 40 of Income Tax Law 193, dated January 6, 1961, which was amended by Law 4108 on June 2, 1995, allows taxpayers engaged in overseas activities related to exports, construction, maintenance, assembly and transportation to claim a lump sum deduction from gross income in an amount not to exceed 0.5 percent of the taxpayer's foreign-exchange earnings.
We preliminarily determine that this tax deduction is a countervailable subsidy. The deduction provides a financial contribution within the meaning of section 771(5)(D)(ii) of the Tariff Act of 1930, as amended (“the Act”), because it represents revenue forgone by the GOT. The deduction also provides a benefit as described by section 771(5)(E) of the Act, in the amount of the tax savings to the company. Finally, it is specific within the meaning of section 771(5A)(A) and (B) of the Act because its receipt is contingent upon export earnings. The Department has previously found this program countervailable.
The Department typically considers tax deductions to provide recurring benefits, in accordance with 19 CFR 351.524(c)(1). To calculate the countervailable subsidy rate for this program, we calculated the tax savings realized by Istanbul Gida in 2010 as a result of the deduction. We multiplied the amount of the deduction Istanbul Gida claimed in 2010 by the 20 percent tax rate applicable to Istanbul Gida. We divided the resulting benefit by the consolidated export sales of Istanbul Gida, Birlik and Bellini in 2010, net of intercompany sales.
On this basis, we preliminarily determine the net countervailable subsidy for this program to be 0.08 percent
The Social Security Institution of the GOT administers the Incentive for the Employer's Share in Insurance Premiums Program (Insurance Premiums Program) pursuant to Article 2 and Article 4 of Law 5084.
In order to continue to receive support under this program, employers must submit documentation each month to the Social Security Institution prior to the deadlines stipulated by Social Security Law No. 506. They must also pay their employees' share of the insurance premiums, as well as whatever portion of the employer's share the GOT does not pay.
Birlik reported that it received benefits under this program during the POR. When asked what criteria Birlik needed to satisfy to be eligible for this program, Birlik replied that “{it} is a manufacturer; there are no other criteria.”
We preliminarily determine that this program is specific under section 771(5A)(D)(iv) of the Act because it is limited to companies located in designated geographical regions of the country. We also preliminarily determine that this program constitutes a financial contribution in the form of revenue forgone by the GOT within the meaning of section 771(5)(D)(ii) of the Act. Birlik received a benefit from the GOT in the amount of social security premiums it did not have to pay as a result of this program. Therefore, we preliminarily determine that the GOT's social security premium contributions under this program confer a countervailable subsidy.
We preliminarily determine that this program confers recurring benefits.
Under this program, the GOT issues payments to companies exporting certain agricultural products, such as flowers, vegetables, fruit, olive oil, meats and chocolates. The eligible products, terms of the rebates and other regulations for this program for January 1, 2010, through December 31, 2010 are specified by Article 5 and Article 7 of Communiqué 2010/5, issued by the Money-Credit and Coordination Council. According to the GOT, this Communiqué has its legal basis in Council of Minister's Decree No. 94/6401.
Companies wishing to take advantage of this program must apply through the applicable exporter's union. Once the company's application is accepted, an account is opened for the exporter at the Central Bank of the Republic of Turkey. For each ton of eligible product exported, the GOT credits the exporter's account with payments according to the schedule in Communiqué 2010/5. A formula governs the payments a company receives, which may fluctuate depending on the price of the exports and the ratios applicable to each product.
The funds deposited into the exporter's account may only be used to offset the company's obligations to the GOT. Pursuant to Article 7 of Communiqué 2010/5, these obligations include taxes, tax penalties, Social Security Institute payments, communication fees (fixed phone lines, telefax,
We preliminarily determine that this program is specific under section 771(5A)(A) and (B) of the Act because it is contingent on export performance. We also preliminarily determine that this program constitutes a financial contribution in the form of a grant within the meaning of section 771(5)(D)(i) of the Act. Participating companies receive a benefit within the meaning of section 771(5)(E) of the Act from the GOT in the amount of the grant. Therefore, we preliminarily determine that the GOT's reimbursements under this program confer a countervailable subsidy. Additionally, we preliminarily determine that benefits under this program are recurring. Once accepted into this program, a company can expect to receive payments in its account on an ongoing basis from year to year, as long as it is still exporting eligible products.
Marsan and Istanbul Gida reported receiving benefits under this program, both for pasta and for other products. According to the respondents, it is “impracticable” for the Department to measure benefits under this program according to the time at which funds were received, because the manner in which the payments are received makes it impossible to link them back to specific customs declarations or products. Rather, the respondents argue that it is appropriate to measure the benefit either according to the date of the exportation of the goods, or according to the date that Marsan or Istanbul Gida applied for the benefit. Either method would allow the Department to isolate the benefit conferred strictly on pasta.
We have considered the respondents' arguments, and for the preliminary results, we are measuring benefits under this program according to the date on which the benefit was received by Marsan or Istanbul Gida. The Department's regulations specify that the Department “normally will consider a benefit as having been received on the date on which the firm received the grant,” and “will allocate (expense) a recurring benefit to the year in which the benefit is received.”
The Department analyzed a similar program, “Pasta Export Grants,” in the investigation of pasta from Turkey.
To calculate the countervailable subsidy rate, we treated the amounts received by Marsan and Istanbul Gida as a recurring benefit. For Marsan, we divided the total amount of grants received by Marsan in the POR by Marsan's total export sales in the POR. For Istanbul Gida, we divided the total amount of grants received by Istanbul Gida in the POR by the consolidated export sales of Istanbul Gida, Birlik and Bellini in the POR, net of intercompany sales. On this basis, we preliminarily determine the countervailable subsidy from this program to be 0.12 percent
Consistent with 19 CFR 351.525(b)(5), we find that the grants received under these programs were tied to non-subject merchandise and, thus, did not confer a benefit to the production or sales of subject merchandise of the respondent companies during the POR.
This program seeks to build international awareness of Turkish brands. It does so by reimbursing eligible companies for certain expenses related to promoting their products abroad. In order to be eligible, companies must hold at least one registered trademark domestically and one registered trademark in a target foreign market. After being approved, companies may affix the “Turquality” logo to products accepted into the program.
Istanbul Gida reported that it received funds under this program. However, the benefits were for expenses related to the “ÜLKER” brand of goods. According to Marsan, Birlik, Bellini and Marsa Yag,
This program reimburses Turkish companies for expenses related to their attendance at foreign trade shows. Istanbul Gida reported that it received reimbursements during the POR for trade shows it attended in Russia, South Africa, Kenya and Hong Kong. However, it did not exhibit pasta at any of these events. Because there was no benefit to the subject merchandise from this program during the POR, we have not analyzed it further and have not included it in our calculations.
In accordance with 19 CFR 351.221(b)(4)(i), we calculated subsidy rates for each producer/exporter subject to this administrative review. For the period January 1, 2010, through December 31, 2010, we preliminarily determine the following total net countervailable subsidy rates:
Marsan's final cash deposit rate is a “combination rate” pursuant to 19 CFR 351.107(b). It applies only to subject merchandise exported by Marsan and produced by Birlik and/or Bellini.
If the final results remain the same as these preliminary results, the Department will instruct U.S. Customs and Border Protection (“CBP”) to liquidate without regard to countervailing duties shipments of subject merchandise (a) exported by Marsan and produced by Birlik and/or Bellini, or (b) exported by Istanbul Gida, Birlik or Bellini, and entered, or withdrawn from warehouse, for consumption from January 1, 2010, through December 31, 2010.
For all other combinations or companies, as appropriate, that were not reviewed, the Department will direct CBP to assess countervailing duties on all entries between January 1, 2010, and December 31, 2010, at the rates in effect at the time of entry.
The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this review.
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown above. For all non-reviewed firms, we will instruct CBP to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company. These rates shall apply to all non-reviewed companies until a review of a company assigned these rates is requested. These cash deposit requirements, when imposed, shall remain in effect until further notice.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within 10 days after public announcement, or if there is no public announcement, five days after the date of the publication of this notice.
Pursuant to 19 CFR 351.309(c)(1)(ii), interested parties may submit written arguments in case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, limited to issues raised in case briefs, may be filed no later than five days after the date of filing the case briefs, in accordance with 19 CFR 351.309(d). Any case briefs and rebuttal briefs must be filed via the Department's electronic records system, IA ACCESS, in accordance with 19 CFR 351.303. Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument: (1) A statement of the issue, and (2) a brief summary of the argument with an electronic version included. Copies of case briefs and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f)(3)(i).
Also, pursuant to 19 CFR 351.310(c), within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs by electronically filing the request via IA ACCESS. Unless otherwise specified, the hearing, if requested, will
The Department will publish the final results of this administrative review, including the results of its analysis of arguments made in any case or rebuttal briefs, within 120 days from the publication of these preliminary results, in accordance with section 751(a)(3) of the Act, unless extended.
These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Determination of Sales at Less Than Fair Value.
We preliminarily determine that large residential washers (washers) from the Republic of Korea (Korea) are being sold, or are likely to be sold, in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act).
Interested parties are invited to comment on this preliminary determination. Because we are postponing the final determination, we will make our final determination not later than 135 days after the date of publication of this preliminary determination in the
David Goldberger or Henry Almond, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4136 or (202) 482–0049, respectively.
We preliminarily determine that washers from Korea are being sold, or are likely to be sold, in the United States at LTFV, as provided in section 733(b) of the Act. The estimated margins of sales at LTFV are shown in the “Suspension of Liquidation” section of this notice.
Since the initiation of this investigation on January 19, 2012, the following events have occurred.
On February 21, 2012, the United States International Trade Commission (ITC) preliminarily determined that there is a reasonable indication that imports of washers from Korea are materially injuring the United States industry.
We received responses to section A of the questionnaire from LG and Samsung in April 2012, and to sections B, C, and D of the questionnaire in May 2012. No responses to section E of the questionnaire were necessary. Daewoo did not respond to the questionnaire.
On May 10, 2012, Whirlpool Corporation (hereafter, the petitioner) requested that the date for the issuance of the preliminary determination in this investigation be fully extended pursuant to section 733(c)(1) of the Act and 19 CFR 351.205(e). On May 16, 2012, pursuant to sections 733(c)(1)(A) and (c)(2) of the Act and 19 CFR 351.205(f), the Department postponed the preliminary determination until no later than July 27, 2012.
On May 17, 2012, the petitioner submitted a request for the Department to amend the scope of this and the concurrent antidumping and countervailing duty investigations of washers from Mexico and Korea, respectively, and to exclude certain products from those investigations. Samsung and LG objected to the petitioner's scope exclusion request on May 23 and May 24, 2012, respectively. On July 11, 2012, General Electric Company and its operating division GE Appliances & Lighting (GE), a domestic producer and importer of washers, declared its support for the petitioner's scope exclusion request. On July 18, 2012, Staber Industries, Inc. (Staber), a domestic producer of washers, also filed a letter in support of the petitioner's scope exclusion request.
We issued supplemental questionnaires and received responses to these supplemental questionnaires from May through July 2012.
On June 11, 2012, the petitioner alleged that targeted dumping was occurring with respect to washers produced and exported from Korea by LG and Samsung. On July 5, 2012, the petitioner revised its targeted dumping allegation for LG.
On July 13, 2012, Samsung and LG requested a postponement of the final determination.
On July 25, 2012, the petitioner alleged that Samsung has engaged in fraudulent conduct that undermines the integrity of this investigation. While this allegation was not received in time to be considered for the preliminary determination, it will be examined thoroughly and addressed as appropriate over the course of this proceeding.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2), require that requests by respondents for postponement of a final determination be accompanied by a request for extension of provisional measures from a four-month period to not more than six months.
Pursuant to section 735(a)(2) of the Act, on July 13, 2012, Samsung and LG requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination until
The period of investigation (POI) is October 1, 2010, through September 30, 2011. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition (
The product covered by this investigation is all large residential washers and certain subassemblies thereof from Korea.
For purposes of this investigation, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, except as noted below, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm).
Also covered are certain subassemblies used in large residential washers, namely: (1) All assembled cabinets designed for use in large residential washers which incorporate, at a minimum: (a) At least three of the six cabinet surfaces; and (b) a bracket; (2) all assembled tubs
Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” market meeting either of the following two definitions:
(1) (a) It contains payment system electronics;
(2) (a) it contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,
Also excluded from the scope are automatic clothes washing machines with a vertical rotational axis and a rated capacity of less than 3.7 cubic feet, as certified to the U.S. Department of Energy pursuant to 10 CFR 429.12 and 10 CFR 429.20, and in accordance with the test procedures established in 10 CFR part 430.
The products subject to this investigation are currently classifiable under subheading 450.20.0090 of the Harmonized Tariff System of the United States (HTSUS). Products subject to this investigation may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this scope is dispositive.
In accordance with the preamble to the Department's regulations,
Section 776(a) of the Act provides that the Department shall, subject to section 782(d) of the Act, apply “the facts otherwise available” if (1) necessary information is not available on the record of an antidumping proceeding or (2) an interested party or any other person: (A) Withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782 of the Act; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i) of the Act.
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party with an opportunity to remedy or explain the deficiency. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by the administering authority” if the information is submitted in a timely manner, can be verified, is not so incomplete that it cannot be used, and the interested party acted to the best of its ability in providing the information.
In this case, Daewoo did not respond to the Department's questionnaire by the established deadline nor did it request an extension of time to submit its response. Thus, the Department preliminarily determines that necessary information is not available on the record to serve as the basis for the calculation of a margin for Daewoo.
Therefore, pursuant to sections 776(a)(1) and 776(a)(2)(A) and (C) of the Act, the Department preliminarily determines that the use of the facts otherwise available is warranted for Daewoo. Because Daewoo failed to provide any information in this investigation, sections 782(d) and (e) of the Act are not applicable in this case.
Section 776(b) of the Act provides that, if the Department finds an interested party has failed to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Where the Department applies adverse facts available (AFA) because a respondent failed to cooperate by not acting to the best of its ability to comply with a request for information, section 776(b) of the Act authorizes the Department to rely on information derived from the petition, a final determination, a previous administrative review, or other information placed on the record.
When using facts otherwise available, section 776(c) of the Act provides that, where the Department relies on secondary information (such as the petition) rather than information obtained in the course of an investigation, it must corroborate, to the extent practicable, information from independent sources that are reasonably at its disposal. The SAA clarifies that “corroborate” means the Department will satisfy itself that the secondary information to be used has probative value.
For the purposes of this investigation and to the extent appropriate information was available, we reviewed the adequacy and accuracy of the information in the petition during our
We have selected the petition rate of 82.41 percent (as adjusted at initiation) as the appropriate AFA rate to apply in this case. This rate achieves the purpose of applying an adverse inference,
Based on our examination of the information, as discussed in detail in the Initiation Checklist and the
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin.
Accordingly, we have determined that the AFA rate of 82.41 percent is corroborated “to the extent practicable” as provided in section 776(c) of the Act.
The statute allows the Department to employ the average-to-transaction margin-calculation methodology under the following circumstances: (1) There is a pattern of export prices that differ significantly among purchasers, regions, or periods of time; and (2) the Department explains why such differences cannot be taken into account using the average-to-average or transaction-to-transaction methodology.
On June 11, 2012, the petitioner submitted allegations of targeted dumping with respect to LG and Samsung and asserted that the Department should apply the average-to-transaction methodology in calculating the margins for these respondents. In its allegations, the petitioner asserted that there are patterns of U.S. sales prices for comparable merchandise that differ significantly among time periods, customers, and regions.
We conducted time-period, customer, and regional targeted dumping analyses for LG and Samsung using the methodology we adopted in
The methodology we employed involves a two-stage test; the first stage addresses the pattern requirement and the second stage addresses the significant-difference requirement.
We based all of our targeted dumping calculations on the U.S. net price which we determined for U.S. sales by LG in our standard margin calculations. For further discussion of the test and results,
We based all of our targeted dumping calculations on the U.S. net price which we determined for Samsung's U.S. sales in our standard margin calculations. For further discussion of the test and results,
Section 777A(d)(1)(B)(ii) of the Act states that the Department may compare the weighted average of the NV to export prices (EPs) (or constructed export prices (CEPs)) of individual transactions for comparable merchandise if the Department explains why differences in the patterns of EPs (or CEPs) cannot be taken into account using the average-to-average methodology. As described above, we preliminarily determine that, with respect to sales by LG and Samsung, for certain time periods, customers, and regions there was a pattern of prices that differed significantly.
For both LG and Samsung, we find that these differences cannot be taken into account using the average-to-average methodology because the average-to-average methodology conceals differences in the patterns of prices between the targeted and non-targeted groups by averaging low-priced sales to the targeted group with high-priced sales to the non-targeted group. Therefore, for the preliminary determination, we find that the standard average-to-average methodology does not take into account LG's and Samsung's price differences because the alternative average-to-transaction methodology yields a material difference in the margin. Accordingly, for this preliminary determination we applied the average-to-transaction methodology to all U.S. sales made by LG and Samsung. In applying this methodology, consistent with our practice, we did not offset negative comparison results with positive comparison results.
To determine whether sales of washers from Korea to the United States were made at LTFV, we compared the EP or CEP to the NV, as described in the “Export Price/Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(1)(B) of the Act, we compared transaction-specific EPs and CEPs to weighted-average NVs for LG and Samsung.
In accordance with section 771(16) of the Act, we considered all products produced and sold by the respondents in Korea during the POI that fit the description in the “Scope of Investigation” section of this notice to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We compared U.S. sales to sales made in the home market, where appropriate. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade.
In making product comparisons, we matched foreign like products based on the physical characteristics reported by the respondents in the following order of importance: finished unit or subassembly; load, agitator and axis type; capacity measurement; drying system; finish; user interface display; specialty cycle; door/lid material; motor type; water heater; and shoecare function.
We excluded from our analysis U.S. and comparison market sales of top-load washers with a vertical rotational axis and a rated capacity of less than 3.70 cubic feet.
For certain U.S. sales made by LG, we used the EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold directly to the first unaffiliated purchaser in the United States before the date of importation by the producer or exporter of the subject merchandise outside the United States, and the use of the CEP methodology was not otherwise warranted based on the facts of record.
For the remaining U.S. sales made by LG and all of Samsung's U.S. sales, we calculated CEP in accordance with section 772(b) of the Act because the subject merchandise was first sold (or agreed to be sold) in the United States after the date of importation by or for the account of the producer or exporter, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter.
With respect to EP sales, we based the starting price on the packed prices to unaffiliated purchasers in the United States. For those sales where the shipment date preceded the invoice date, we used the shipment date as the date of sale, in accordance with our practice.
We based CEP on the packed prices to unaffiliated purchasers in the United
We made deductions for movement expenses for LG's CEP transactions, in accordance with section 772(c)(2)(A) of the Act; these expenses included, where appropriate, foreign inland freight (adjusted as noted above), foreign brokerage and handling, international freight, marine insurance, U.S. brokerage and handling, U.S. warehousing, and U.S. inland freight.
In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
Pursuant to section 772(d)(3) of the Act, we further reduced the starting price by an amount for profit to arrive at CEP. In accordance with section 772(f) of the Act, we calculated the CEP profit rate using the expenses incurred by LG and its affiliate on their sales of the subject merchandise in the United States and the profit associated with those sales.
We based CEP on the packed prices to unaffiliated purchasers in the United States. We increased the starting price by the amount of billing adjustments reported by Samsung. We made deductions for discounts and rebates, as appropriate. We did not make an adjustment for duty drawback, as claimed by Samsung, because Samsung did not include the duties drawn-back upon export in its reported COP.
We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these expenses included, where appropriate, foreign inland freight, foreign loading, foreign brokerage and handling, international freight, marine insurance, U.S. brokerage and handling, U.S. customs duties (including processing fees and harbor maintenance fees), U.S. warehousing, U.S. inland insurance, and U.S. inland freight. With respect to foreign brokerage and handling, foreign inland freight, foreign loading, and international freight expenses, Samsung used an affiliated company to provide these services. Because Samsung's affiliate did not provide the same services to unaffiliated parties, nor did Samsung use unaffiliated companies for these services, we were unable to test the arm's-length nature of the expenses paid by Samsung. Therefore, we based these expenses on the affiliate's costs. For further discussion, see the Samsung Calculation Memo.
In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
Pursuant to section 772(d)(3) of the Act, we further reduced the starting price by an amount for profit to arrive at CEP. In accordance with section 772(f) of the Act, we calculated the CEP profit rate using the expenses incurred by Samsung and its affiliate on their sales of the subject merchandise in the United States and the profit associated with those sales.
Furthermore, we included in our calculation of CEP certain U.S. sales affected by an allegedly unforeseen event that affected several transactions, including certain sales that Samsung contends were sold before the POI. We preliminarily determine that these sales were made during the POI and, therefore, we have included them in our preliminary margin analysis.
Samsung argues that expenses associated with this event should not be included in our margin calculation consistent with the Department's practice with respect to the treatment of “extraordinary” expenses. Alternatively, Samsung maintains that these expenses should be treated as indirect selling expenses. However, we do not find this type of event to be extraordinary because Samsung failed to demonstrate that it is highly abnormal and so unusual in nature that it could not possibly have been foreseen as part of running a business. Even if this event is, as Samsung argues, completely unexpected in the sale of washers, the petitioner placed information on the record calling into question this claim.
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
In this investigation, we determined that LG's and Samsung's aggregate volume of home market sales of the foreign like product was greater than five percent of the aggregate volume of U.S. sales of the subject merchandise. Therefore, we used home market sales as the basis for NV, in accordance with section 773(a)(1)(B) of the Act.
During the POI, LG and Samsung sold foreign like product to affiliated customers. We did not conduct the arm's-length test with respect to LG, because LG reported the downstream
To test whether Samsung's sales to affiliated customers were made at arm's-length prices, we compared, on a product-specific basis, the starting prices of sales to affiliated and unaffiliated customers, net of all applicable billing adjustments, discounts and rebates, movement charges, direct selling expenses and packing expenses. Where the price to the affiliated party was, on average, within a range of 98 to 102 percent of the price of the same or comparable merchandise sold to unaffiliated parties, we determined that sales made to the affiliated party were at arm's length.
With respect to Samsung's sales to affiliated resellers, we determined that sales to certain affiliated resellers were not made at arm's-length prices and, therefore, excluded these sales from our analysis. As this result was a direct consequence of our decision to exclude top-load washers with a vertical rotational axis and a rated capacity of less than 3.70 cubic feet from the scope of investigation (see “Scope of Investigation,” “Scope Comments,” and “Product Comparisons” sections, above), we have not required Samsung to report the related downstream sales.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it possible, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is at a more advanced stage of distribution than the LOT of the CEP and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (
In this investigation, we obtained information from LG and Samsung regarding the marketing stages involved in making the reported home market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Company-specific LOT findings are summarized below.
LG reported that it made U.S. sales through three channels of distribution (
With respect to the home market, LG reported that it made sales through four channels of distribution (
LG reported that it performed the following selling functions for sales to all home market customers: Sales forecasting, product development/market research, advertising, sales promotion, packing, inventory maintenance, order input, direct sales personnel/sales support, warranty services, payment of commissions, and freight and delivery services. In addition to these activities, LG reported that HiPlaza maintained an extensive retail presence in Korea during the POI, and performed the following additional selling functions for its sales to unaffiliated retail customers: Sales forecasting, advertising, sales promotion, inventory maintenance, order input, direct sales personnel/sales support, and the payment of commissions.
These selling activities can be generally grouped into four selling function categories for analysis: (1) Sales and marketing; (2) freight and delivery services; (3) inventory maintenance and warehousing; and (4) warranty and technical support. Accordingly, we find that LG performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing at the same relative level of intensity for its
Finally, we compared the U.S. LOT to the home market LOTs and found that the selling functions LG performed for its home market customers are more advanced than those performed for its U.S. customers. That is, there is a broader range of selling functions performed in the home market (at both home market LOTs) than in the U.S. market, and these functions are performed at a higher level of intensity than in the U.S. market. This difference is sufficient to determine that LG's U.S. LOT is different from the home market LOTs. Therefore, based on the totality of the facts and circumstances, we preliminarily determine that sales to the home market during the POI were made at different LOTs than sales to the United States. Additionally, because LG's home market LOTs are at a more advanced stage of distribution than its U.S. LOT and no LOT adjustment is possible, a CEP offset is warranted. Accordingly, we granted a CEP offset pursuant to section 773(a)(7)(B) of the Act.
Samsung reported that it made CEP sales through two channels of distribution (
With respect to the home market, Samsung reported that it made sales through two channels of distribution (
These selling activities can be generally grouped into four selling function categories for analysis: (1) Sales and marketing; (2) freight and delivery services; (3) inventory maintenance and warehousing; and (4) warranty and technical support. Accordingly, we find that Samsung performed sales and marketing, freight and delivery services, inventory maintenance and warehousing, and warranty and technical support for its home market sales. Because the selling functions Samsung performed were the same in both channels of distribution, we preliminarily determine that Samsung made sales at one LOT in the home market.
Finally, we compared the U.S. LOT to the home market LOT and found that the selling functions Samsung performed for home market customers are more advanced than those performed for its U.S. customers. This difference is sufficient to determine that the U.S. LOT is different from the home market LOT. Therefore, based on the totality of the facts and circumstances, we preliminarily determine that sales to the home market during the POI were made at a different LOT than sales to the United States. Additionally, because Samsung's home market LOT is at a more advanced stage of distribution than its U.S. LOT and no LOT adjustment is possible, a CEP offset is warranted. Accordingly, we granted a CEP offset pursuant to section 773(a)(7)(B) of the Act.
Based on our analysis of an allegation contained in the petition, we found that there were reasonable grounds to believe or suspect that LG's and Samsung's sales of washers in the home market were made at prices below their COP. Accordingly, pursuant to section 773(b) of the Act, we initiated a country-wide sales-below-cost investigation to determine whether LG's and Samsung's sales were made at prices below their respective COPs.
Section 771(33)(G) of the Act defines an affiliated party as any person who controls any other person and such other person. The Act further states that a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person. The SAA, at 838, provides that a company may be in a position to exercise restraint or direction through, among other factors, close supplier relationships in which the supplier or buyer becomes reliant on the other. The Department's regulations at 19 CFR 351.102(b) provide that control will not exist on the basis of these factors unless the relationship has the potential to impact decisions concerning the production, pricing, or cost of the subject merchandise.
The petitioner alleged that LG and Samsung control certain of their respective input suppliers by virtue of a close supplier relationship and, therefore, are affiliated within the meaning of section 771(33)(G) of the Act. Specifically, the petitioner asserted that each of the suppliers in question is reliant on either LG or Samsung for a significant percentage of its total sales, and for certain forms of financial assistance.
We issued supplemental questionnaires to LG and Samsung requesting additional information so that we could analyze whether the respondents were in a position to exert control over the suppliers at issue.
In light of the petitioner's allegations, we reviewed the information provided by LG and Samsung and considered several factors in assessing whether there is evidence that the relationships between the respondents and their suppliers had the potential to impact pricing and production decisions. Among the factors we considered in our analysis were: (1) The terms and provisions of supply agreements between the respondents and their suppliers, (2) the relative percentage that sales to the respondents represented of each of the suppliers' total sales, (3) the terms of any financing agreements with the suppliers, if any, and (4) the overall profitability of the input suppliers. For both LG and Samsung, among other things, we found that none of their top input suppliers sold exclusively to them. Based on our analysis of the record information, for LG, we determined that the evidence does not support a conclusion that the relationship between LG and its suppliers is sufficiently close to warrant a finding of control, pursuant to section 771(33)(G) of the Act. Likewise, for Samsung, we determined that the information on the record does not support a finding that the relationship between Samsung and its suppliers is sufficiently close to warrant a finding of control. Therefore, we preliminarily find that LG and Samsung and their respective top input suppliers are not affiliated under section 771(33)(G) of the Act.
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for G&A expenses, interest expenses, and home market packing costs.
We relied on the COP data submitted by LG and Samsung. For LG, we relied on the COP data submitted except that for LG we revised the G&A expense ratio to express all G&A expenses recorded on LG's company-wide financial statements as a percentage of LG's company-wide unconsolidated cost of goods sold. We also revised the research and development (R&D) component of the G&A calculation to include a portion of R&D expenses reflected on LG's consolidated financial statements.
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. The prices were exclusive of any applicable billing adjustments, discounts and rebates, movement charges, and actual direct and indirect selling expenses. In determining whether to disregard home market sales made at prices less than their COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act, whether such sales were made: (1) Within an extended period of time in substantial quantities, and (2) at prices which permitted the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the respondent's sales of a given product during the POI are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in substantial quantities. Where 20 percent or more of the respondent's sales of a given product during the POI are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent substantial quantities within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.
We found that, for certain specific products, more than 20 percent of LG's and Samsung's home market sales during the POI were at prices less than the COP and, in addition, the below-cost sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales, if any, as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
We calculated NV based on delivered prices to unaffiliated customers. For those sales where the shipment date preceded the invoice date, we used the shipment date as the date of sale. We made deductions, where appropriate, from the starting price for discounts and rebates. We also made deductions for movement expenses, including inland freight, handling, and warehousing, under section 773(a)(6)(B)(ii) of the Act. Regarding inland freight, handling, and warehousing, LG paid an affiliated company to arrange unaffiliated subcontractors to perform these services. Because LG's affiliate did not provide the same service to unaffiliated parties, nor did LG use unaffiliated companies for these services, we were unable to test the arm's-length nature of the expenses paid by LG. Therefore, we based these expenses on the affiliate's costs.
For comparisons to EP sales, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for direct selling expenses,
For comparisons to CEP sales, in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, we deducted from NV direct selling expenses,
For comparisons to both EP and CEP sales, we reclassified certain expenses that were incurred by LG's affiliated retailer in maintaining its retail presence in the Korean market as indirect selling expenses because these expenses related to rent, sales staff salaries, and other overhead expenses and did not result from or bear a direct relationship to particular sales.
For all price-to-price comparisons, where commissions were granted in the home market but not in the U.S. market, we made an upward adjustment to NV for the lesser of: (1) The amount of commission paid in the home market; or (2) the amount of indirect selling expenses (including inventory carrying costs) incurred in the U.S. market.
Furthermore, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We also deducted home market packing costs and added U.S. packing costs in accordance with section 773(a)(6)(A) and (B) of the Act.
We calculated NV based on delivered prices to unaffiliated customers and/or prices to affiliated customers that we determined to be at arm's length. We increased the starting price by the amount of billing adjustments. We made deductions, where appropriate, from the starting price for discounts and rebates. We also made deductions for movement expenses, including inland freight and warehousing expenses, under section 773(a)(6)(B)(ii) of the Act.
In accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, we deducted from NV direct selling expenses (
Regarding inland freight, warehousing, and warranty expenses, Samsung paid affiliated companies to perform these services in the home market. Because Samsung's affiliates did not provide the same service to unaffiliated parties, nor did Samsung use unaffiliated companies for these services, we were unable to test the arm's-length nature of the expenses paid by Samsung. Therefore, we based these expenses on the affiliates' costs.
Furthermore, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We also deducted home market packing costs and added U.S. packing costs in accordance with section 773(a)(6)(A) and (B) of the Act.
Finally, we made a CEP offset pursuant to section 773(a)(7)(B) of the Act and 19 CFR 351.412(f). We calculated the CEP offset as the lesser of the indirect selling expenses on the home market sales or the indirect selling expenses deducted from the starting price in calculating CEP.
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i) of the Act, we will verify information relied upon in making our final determination.
In accordance with section 733(d)(2) of the Act, we are directing CBP to suspend liquidation of all imports of subject merchandise from Korea that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Consistent with our practice, where the product under investigation is also subject to a concurrent countervailing duty investigation, we instruct CBP to require a cash deposit
We will instruct CBP to require a cash deposit equal to the weighted-average amount by which the NV exceeds EP or CEP, as indicated in the chart below. These suspension-of-liquidation instructions will remain in effect until further notice. The weighted-average dumping margins are as follows:
The “All Others” rate is derived exclusive of all
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
The Department will disclose to parties the calculations performed in connection with this preliminary determination within five days of the date of publication of this notice.
Case briefs for this investigation must be submitted to the Department no later than seven days after the date of the final verification report issued in this proceeding. Rebuttal briefs must be filed five days from the deadline date for case briefs.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
We will make our final determination no later than 135 days after the publication of this notice in the
This determination is published pursuant to sections 733(f) and 777(i) of the Act and 19 CFR 351.205(c).
Import Administration, International Trade Administration, Department of Commerce.
We preliminarily determine that large residential washers (washers) from Mexico are being sold, or are likely to be sold, in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act).
Interested parties are invited to comment on this preliminary determination. Because we are postponing the final determination, we will make our final determination not later than 135 days after the date of publication of this preliminary determination in the
Brian Smith or Brandon Custard, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1766 or (202) 482–1823, respectively.
We preliminarily determine that washers from Mexico are being sold, or are likely to be sold, in the United States at LTFV, as provided in section 733(b) of the Act. The estimated margins of sales at LTFV are shown in the “Suspension of Liquidation” section of this notice.
Since the initiation of this investigation on January 19, 2012, the following events have occurred.
On February 16, 2012, we selected the three largest producers/exporters of washers from Mexico as the mandatory respondents in this proceeding.
On February 21, 2012, the United States International Trade Commission (ITC) preliminarily determined that there is a reasonable indication that imports of washers from Mexico are materially injuring the United States industry.
On March 5, 2012, we issued section A of the questionnaire (
We received a response to section A of the questionnaire from Electrolux in April 2012, and to sections B, C, and D of the questionnaire in May 2012. No response to section E of the questionnaire was necessary. On March 23 and March 26, 2012, respectively, Samsung and Whirlpool submitted letters informing the Department that they would not be responding to the questionnaire.
On May 10, 2012, Whirlpool Corporation (hereafter, the petitioner) requested that the date for the issuance of the preliminary determination in this investigation be fully extended pursuant
On May 17, 2012, the petitioner submitted a request for the Department to amend the scope of this and the concurrent antidumping and countervailing duty investigations of washers from the Republic of Korea (Korea), and to exclude certain products from those investigations. Samsung Electronics Co., Ltd (Samsung Korea) and LG Electronics Inc. (LG), respondents in the antidumping and countervailing duty investigations of washers from Korea, objected to the petitioner's scope exclusion request on May 23 and May 24, 2012, respectively. On July 11, 2012, General Electric Company and its operating division GE Appliances & Lighting (GE), a domestic producer and importer of washers, declared its support for the petitioner's scope exclusion request. On July 18, 2012, Staber Industries, Inc. (Staber), a domestic producer of washers, also filed a letter in support of the petitioner's scope exclusion request.
On May 21, 2012, the petitioner alleged that Electrolux made third country sales below the COP and, therefore, requested that the Department initiate a sales-below-cost investigation of Electrolux. On June 5, 2012, the Department initiated a sales-below-cost investigation of Electrolux.
We issued supplemental questionnaires from May through July 2012, and we received responses to these supplemental questionnaires from May through July 2012.
On June 11, 2012, the petitioner alleged that targeted dumping was occurring with respect to washers produced and exported from Mexico by Electrolux.
On July 13, 2012, Electrolux requested a postponement of the final determination.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2), require that requests by respondents for postponement of a final determination be accompanied by a request for extension of provisional measures from a four-month period to not more than six months.
Pursuant to section 735(a)(2) of the Act, on July 13, 2012, Electrolux requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination until not later than 135 days after the date of the publication of the preliminary determination in the
The period of investigation (POI) is October 1, 2010, through September 30, 2011. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition (
The product covered by this investigation is all large residential washers and certain subassemblies thereof from Mexico.
For purposes of this investigation, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, except as noted below, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm).
Also covered are certain subassemblies used in large residential washers, namely: (1) All assembled cabinets designed for use in large residential washers which incorporate, at a minimum: (a) At least three of the six cabinet surfaces; and (b) a bracket; (2) all assembled tubs
Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” market meeting either of the following two definitions:
(1) (a) it contains payment system electronics;
(2) (a) it contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,
Also excluded from the scope are automatic clothes washing machines with a vertical rotational axis and a rated capacity of less than 3.70 cubic feet, as certified to the U.S. Department of Energy pursuant to 10 CFR 429.12 and 10 CFR 429.20, and in accordance with the test procedures established in 10 CFR Part 430.
The products subject to this investigation are currently classifiable under subheading 450.20.0090 of the Harmonized Tariff System of the United States (HTSUS). Products subject to this investigation may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this scope is dispositive.
In accordance with the preamble to the Department's regulations,
Section 776(a) of the Act provides that the Department shall, subject to section 782(d) of the Act, apply “the facts otherwise available” if (1) necessary information is not available on the record of an antidumping proceeding or (2) an interested party or any other person: (A) withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782 of the Act; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i) of the Act.
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party with an opportunity to remedy or explain the deficiency. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by the administering authority” if the information is submitted in a timely manner, can be verified, is not so incomplete that it cannot be used, and the interested party acted to the best of its ability in providing the information.
In this case, Samsung and Whirlpool stated in letters dated March 23 and March 26, 2012, respectively, that they would not be responding to the Department's questionnaire or otherwise participating in this investigation. Thus, the Department preliminarily determines that necessary information is not available on the record to serve as the basis for the calculation of margins for Samsung and Whirlpool.
Therefore, pursuant to sections 776(a)(1) and 776(a)(2)(A) and (C) of the Act, the Department preliminarily determines that the use of the facts otherwise available is warranted for Samsung and Whirlpool. Because Samsung and Whirlpool failed to provide any information in this investigation, sections 782(d) and (e) of the Act are not applicable in this case.
Section 776(b) of the Act provides that, if the Department finds an interested party has failed to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Where the Department applies adverse facts available (AFA) because a respondent failed to cooperate by not acting to the best of its ability to comply with a request for information, section 776(b) of the Act authorizes the Department to rely on information derived from the petition, a final determination, a previous administrative review, or other information placed on the record.
When using facts otherwise available, section 776(c) of the Act provides that, where the Department relies on secondary information (such as the petition) rather than information obtained in the course of an investigation, it must corroborate, to the extent practicable, information from independent sources that are reasonably at its disposal. The SAA clarifies that “corroborate” means the Department will satisfy itself that the secondary information to be used has probative value.
For the purposes of this investigation and to the extent appropriate information was available, we reviewed the adequacy and accuracy of the information in the petition during our pre-initiation analysis and for purposes of this preliminary determination.
We have selected the petition rate of 72.41 percent (as adjusted at initation) as the appropriate AFA rate to apply in this case. This rate achieves the purpose of applying an adverse inference,
Based on our examination of the information, as discussed in detail in the Initiation Checklist and the
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin.
The 72.41 percent rate reflects commercial practices of the washer industry and, as such, is relevant to Samsung and Whirlpool. The courts have acknowledged that the consideration of the commercial behavior inherent in the industry is important in determining the relevance of the selected AFA rate to the uncooperative respondent by virtue of it belonging to the same industry.
Accordingly, we have determined that the AFA rate of 72.41 percent is corroborated to the extent practicable as provided in section 776(c) of the Act.
The statute allows the Department to employ the average-to-transaction margin-calculation methodology under the following circumstances: (1) There is a pattern of export prices that differ significantly among purchasers, regions, or periods of time; and (2) the Department explains why such differences cannot be taken into account using the average-to-average or transaction-to-transaction methodology.
On June 11, 2012, the petitioner submitted an allegation of targeted dumping with respect to Electrolux and asserted that the Department should apply the average-to-transaction methodology in calculating the margin for Electrolux. In its allegation, the petitioner asserted that there are patterns of U.S. sales prices for comparable merchandise that differ significantly among time periods, customers, and regions.
We conducted time-period, customer, and regional targeted dumping analyses for Electrolux using the methodology we adopted in
The methodology we employed involves a two-stage test; the first stage addresses the pattern requirement and the second stage addresses the significant-difference requirement.
Section 777A(d)(1)(B)(ii) of the Act states that the Department may compare the weighted average of the NV to export prices (EPs) (or constructed export prices (CEPs)) of individual transactions for comparable merchandise if the Department explains why differences in the patterns of EPs (or CEPs) cannot be taken into account using the average-to-average methodology. As described above, we preliminarily determine that, with respect to sales by Electrolux, for certain time periods, customers, and regions there was a pattern of prices that differed significantly.
For Electrolux, we find that these differences can be taken into account using the average-to-average methodology because the average-to-average methodology does not conceal differences in the patterns of prices between the targeted and non-targeted groups by averaging low-priced sales to the targeted group with high-priced sales to the non-targeted group. Therefore, for the preliminary determination, we find that the standard average-to-average methodology takes into account the price differences because the alternative average-to-transaction methodology yields no material difference in the margin. Accordingly, for this preliminary determination we have applied the standard average-to-average methodology to all U.S. sales made by Electrolux.
To determine whether sales of washers from Mexico to the United States were made at LTFV, we compared the CEP to the NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared weighted average CEPs to weighted-average NVs for Electrolux.
In accordance with section 771(16) of the Act, we considered all products produced and sold by Electrolux in the third country, Canada, during the POI that fit the description in the “Scope of Investigation” section of this notice to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We compared U.S. sales to sales made in the third country (Canadian) market, where appropriate.
In making product comparisons, we matched foreign like products based on the physical characteristics reported by Electrolux in the following order of importance: finished unit or subassembly; load, agitator and axis type; capacity measurement; drying system; finish; user interface display; specialty cycle; door/lid material; motor type; water heater; and shoecare function.
For all U.S. sales made by Electrolux we calculated CEP in accordance with section 772(b) of the Act because the subject merchandise was first sold (or agreed to be sold) in the United States after the date of importation by or for the account of the producer or exporter, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter.
We based CEP on the packed prices to unaffiliated purchasers in the United States. We used the earlier of shipment or invoice date as the date of sale for
We adjusted the starting price by the amount of billing adjustments reported by Electrolux. We made deductions for rebates and discounts, as appropriate. We also made deductions for movement expenses, in accordance with section 772(c)(2)(A) of the Act; these expenses included, where appropriate, foreign inland freight, foreign customs fees, foreign and U.S. inland insurance, U.S. inland freight (
Pursuant to section 772(d)(3) of the Act, we further reduced the starting price by an amount for profit to arrive at CEP. In accordance with section 772(f) of the Act, we calculated the CEP profit rate using the expenses incurred by Electrolux on its sales of the subject merchandise in the United States and the profit associated with those sales.
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
In this investigation, we determined that Electrolux's aggregate volume of home market sales of the foreign like product was insufficient to permit a proper comparison with U.S. sales of the subject merchandise. Therefore, we used sales to Canada, Electrolux's largest third country market, comprised of merchandise that is similar and/or identical to the subject merchandise exported to the United States, as the basis for comparison market sales in accordance with section 773(a)(1)(C) of the Act and 19 CFR 351.404.
During the POI, Electrolux sold foreign like product to affiliated customers. To test whether Electrolux's sales to affiliated customers were made at arm's-length prices, we compared, on a product-specific basis, the starting prices of sales to affiliated and unaffiliated customers, net of all applicable billing adjustments, discounts and rebates, movement charges, direct selling expenses and packing expenses. Where the price to the affiliated party was, on average, within a range of 98 to 102 percent of the price of the same or comparable merchandise sold to unaffiliated parties, we determined that sales made to the affiliated party were at arm's length.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it possible, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is at a more advanced stage of distribution than the LOT of the CEP and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (
In this investigation, we obtained information from Electrolux regarding the marketing stages involved in making the reported comparison market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Our LOT finding is summarized below.
Electrolux sold washers only to retailers and builders/wholesalers in both the Canadian and U.S. markets. Electrolux reported that it made CEP sales in the U.S. market through the following four channels of distribution: (1) The customer picks up the merchandise from its El Paso, Texas, warehouse; (2) its U.S. affiliate (
We compared the selling activities Electrolux performed in each channel, exclusive of the selling activities performed by its U.S. affiliate, and found that either there is no difference in the selling functions performed by Electrolux between the channels (
With respect to the Canadian market, Electrolux reported the following three channels of distribution: (1) Its Canadian affiliate (
We compared the selling activities Electrolux and its affiliates collectively performed in each channel, and found that there is no difference in the selling functions performed between the channels. As a result, we found that Electrolux performed the same selling functions for all three Canadian market distribution channels. Accordingly, we determined that all Canadian sales constitute one LOT.
Finally, we compared the CEP LOT to the Canadian market LOT and found that the selling functions performed for Canadian market sales are either not performed for CEP sales or are performed at a significantly higher degree of intensity compared to the selling functions performed for U.S. sales. Specifically, we found that three of the four selling functions (
Because Electrolux did not have a viable home market, on May 21, 2012, the petitioner alleged that it made third country sales below the COP and, therefore, requested that the Department initiate a sales-below-cost investigation. On June 5, 2012, the Department initiated a sales-below-cost investigation of Electrolux.
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for general and administrative expenses, interest expenses, and comparison market packing costs.
We relied on Electrolux's submitted COP data but adjusted this data to account for labor and overhead provided by affiliated parties at transfer prices, in accordance with section 773(f)(2) of the Act.
On a product-specific basis, we compared the adjusted weighted-average COP to the comparison market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. The prices were exclusive of any applicable billing adjustments, discounts and rebates, movement charges, and actual direct and indirect selling expenses. In determining whether to disregard comparison market sales made at prices less than their COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act, whether such sales were made (1) within an extended period of time in substantial quantities, and (2) at prices which permitted the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the respondent's sales of a given product during the POI are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in substantial quantities. Where 20 percent or more of the respondent's sales of a given product during the POI are at prices less than the COP, we disregard those sales of that product, because we determine that in such instances the below-cost sales represent substantial quantities within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.
We found that, for certain specific products, more than 20 percent of Electrolux's comparison market sales during the POI were at prices less than the COP and, in addition, the below-cost sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales, if any, as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
We calculated NV based on packed prices to unaffiliated customers. We made deductions, where appropriate, from the starting price for discounts, rebates, and billing adjustments. We also made deductions for movement
Furthermore, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We also deducted third country packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.
Finally, we made a CEP offset pursuant to section 773(a)(7)(B) of the Act and 19 CFR 351.412(f). We calculated the CEP offset as the lesser of the indirect selling expenses on the comparison market sales or the indirect selling expenses deducted from the starting price in calculating CEP.
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i) of the Act, we will verify information relied upon in making our final determination.
In accordance with section 733(d)(2) of the Act, we are directing CBP to suspend liquidation of all imports of subject merchandise from Electrolux, Samsung, Whirlpool, and “All Others” that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
We will instruct CBP to require a cash deposit
The weighted-average dumping margins are as follows:
The “All Others” rate is derived exclusive of all
In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
The Department will disclose to parties the calculations performed in connection with this preliminary determination within five days of the date of publication of this notice.
Case briefs for this investigation must be submitted to the Department no later than seven days after the date of the final verification report issued in this proceeding. Rebuttal briefs must be filed five days from the deadline date for case briefs.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
We will make our final determination no later than 135 days after the publication of this notice in the
This determination is published pursuant to sections 733(f) and 777(i) of the Act and 19 CFR 351.205(c).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Council) Groundfish Essential Fish Habitat Review Committee (EFHRC) will hold a meeting by conference call to finalize a report on the periodic review of groundfish essential fish habitat (EFH).
The conference call will be held August 17, 2012 between 9 a.m. and noon.
The meeting will be held via conference call, with a listening station provided at the Pacific Council Office, 7700 NE Ambassador Place,
Mr. Chuck Tracy, Staff Officer, Pacific Council; telephone: (503) 820–2280.
The purpose of the meeting is to finalize the Phase I report on the review of information relevant to EFH for Pacific Coast groundfish stocks. The Phase I report is designed to compile new and newly-available information, and compare it with the suite of information that was used to establish the current groundfish EFH designations. The EFHRC is scheduled to report to the Council at its September 13–18, 2012 meeting in Boise, ID.
Although non-emergency issues not contained in the meeting agenda may come before the EFHRC for discussion, those issues may not be the subject of formal EFHRC action during this meeting. EFHRC action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the EFHRC's intent to take final action to address the emergency.
Special Accommodations
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820–2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Caribbean Fishery Management Council (Council) will hold a meeting.
The meetings will be held on August 28–29, 2012. The Council will convene on Tuesday, August 28, 2012 from 9 a.m. to 5 p.m., and will reconvene on Wednesday, August 29, 2012, from 9 a.m. to 5 p.m.
The meetings will be held at the El Conquistador Hotel, #1000 El Conquistador Avenue, Fajardo, Puerto Rico.
Caribbean Fishery Management Council, 268 Muñoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918–1920, telephone: (787) 766–5926.
The Council will hold its 143rd regular Council Meeting to discuss the items contained in the following agenda:
• Call to Order.
• Election of Officers.
• Adoption of Agenda.
• Consideration of the 142nd Council Meeting Verbatim Transcriptions.
• Executive Director's Report.
• Report from Public Hearings and Scoping Meetings.
• Trap Reduction Project Report Update.
• Five Year Research Plan—Barbara Kojis.
• Queen Conch Compatible Regulations St. Croix and EEZ.
• Calendar vs. Fishing Year Issues.
• Enforcement Reports.
• Administrative Committee Recommendations (July 31, 2012 Meeting).
• Meetings Attended by Council Members and Staff.
• Public Comment Period (5–Minutes Presentations).
• Other Business.
• Next Council Meeting.
The established times for addressing items on the agenda may be adjusted as necessary to accommodate the timely completion of discussion relevant to the agenda items. To further accommodate discussion and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date established in this notice.
The meetings are open to the public, and will be conducted in English. Simultaneous Interpretation (English/Spanish) will be provided. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be subjects for formal action during these meetings. Actions will be restricted to those issues specifically identified in this notice, and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 268 Muñoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico, 00918–1920, telephone: (787) 766–5926, at least 5 days prior to the meeting date.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 4/27/2012 (77 FR 25146–25147); 5/18/2012 (77 FR 29596); 6/1/2012 (77 FR 32591–32592); 6/8/2012 (77 FR 34026–34027; and 6/15/2012 (77 FR 35942–35944), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. The action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501–8506) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
A comment was received from a Department of the Army civilian program staff member who expressed opposition to adding the Combat Arms Ear Plugs (ear plugs) to the Procurement List due to his concern that it could impact on-going studies into other ear protection for Army soldiers. The Army program office subsequently withdrew their objection and indicated their support for adding the ear plugs to the Procurement List while acknowledging that the Army may continue other ear protection studies if it is determined appropriate.
Accordingly, following a deliberative review of all information, the Committee has determined that it is appropriate to add the ear plugs specified by the National Stock Numbers (NSNs) referenced to the Procurement List.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products and services previously furnished by such agencies.
Comments Must Be Received on or Before: 9/3/2012.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202–3259.
This notice is published pursuant to 41 USC 8503 (a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to provide the services listed below from the nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the services to the Government.
2. If approved, the action will result in authorizing small entities to provide the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products and services proposed for deletion from the Procurement List.
The following products and services are proposed for deletion from the Procurement List:
Commodity Futures Trading Commission.
Notice; Information Collection 3038–0043, Rules Relating to Review of National Futures Association Decisions in Disciplinary, Membership Denial, Registration, and Member Responsibility Actions
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before September 4, 2012.
Send comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, to the addresses below. Please
Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for CFTC, 725 17th Street, Washington, DC 20503. Comments may also be submitted by any of the following methods:
The agency's Web site, at
Please submit your comments using only one method and identity that it is for the renewal of 3038–0043.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the CFTC's regulations were published on December 30, 1981. See 46 FR 63035 (Dec. 30, 1981). The
There are no capital costs or operating and maintenance costs associated with this collection.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 4, 2012.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 4, 2012.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 4, 2012.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–29 with attached transmittal and policy justification, and Sensitivity of Technology.
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* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Kuwait has requested a possible sale of 60 PATRIOT Advanced Capability (PAC–3) Missiles, 4 PATRIOT radars, 4 PATRIOT Engagement Control Stations, 20 PATRIOT Launching Stations, 2 Information Coordination Centrals, 10 Electric Power Plants, communication and power equipment, personnel training and training equipment, spare and repair parts, facility design and construction, publications and technical documentation, U.S. Government and contractor technical and logistics personnel services and other related elements of program and logistics support. The estimated cost is $4.2 billion.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country which has been, and continues to be, an important force for political stability and economic progress in the Middle East.
Kuwait will use the PAC–3 missiles and equipment to improve its missile defense capability, strengthen its homeland defense, and deter regional threats. The proposed sale of PAC–3 missiles and support will enhance Kuwait's interoperability with the U.S. and its allies, making it a more valuable partner in an increasingly important area of the world. Kuwait, which already has PAC–3 in its inventory, will have no difficulty absorbing these additional missiles and support into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractors will be Raytheon Corporation in Tewksbury, Massachusetts; and Lockheed Martin Missiles and Fire Control in Dallas, Texas. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require the assignment of three contractor representatives to Kuwait on a temporary basis for program, technical support, and management oversight.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The PATRIOT Air Defense System contains Confidential hardware components and critical/sensitive technology. The PATRIOT Advance Capability-3 (PAC–3) Missile Four-Pack is classified Confidential, and the improved PAC–3 launcher hardware is Unclassified. The modification kits requested represent significant technological advances for the existing Kuwaiti PATRIOT system capabilities. With the incorporation of the PAC–3, Configuration-3 (PAC–3/C–3) improvements, the PATRIOT system will continue to hold a significant technology lead over other surface-to-air missile systems in the world.
2. The PAC–3/C–3 sensitive/critical technology is primarily in the area of design and production know-how and primarily inherent in the design, development and/or manufacturing data related to the following components:
3. Information on vulnerability to electronic countermeasures and counter-counter measures, system performance capabilities and effectiveness, survivability and vulnerability data, PAC–3 missile seeker capabilities, non-cooperative target recognition, low observable technologies, select software/software documentation and test data are classified up to and including Secret.
4. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–46 with attached transmittal, policy justification, and Sensitivity of Technology.
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* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Finland has requested a possible sale of 70 M57 Army Tactical Missile System (ATACMS) T2K Unitary Missiles, Missile Common Test Device software, ATACMS Quality Assurance Team support, spare and repair parts, tools and test equipment, support equipment, personnel training and training equipment, publications and technical data, U.S. government and contractor engineering and logistics support services, and other related elements of logistics support. The estimated cost is $132 million.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country which has been, and continues to be, an important force for political stability and economic progress in Europe.
Finland intends to use these defense articles and services to expand its existing army architecture and improve its self-defense capabilities. This will contribute to the Finnish Defense Forces' goal of modernizing its capability while further enhancing interoperability between Finland, the United States, and other allies.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be Lockheed Martin Missiles and Fire Control in Dallas, Texas. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require up to two U.S. Government or contractor representatives to travel to Finland for up to one week for equipment de-processing/fielding, system checkout, and training.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The Army Tactical Missile System (ATACMS) M57 is a ground-launched surface-to-surface guided missile system with a unitary warhead. ATACMS are fired from the M270A1 Multiple Launch Rocket System and the High Mobility Artillery Rocket System launchers. The highest classification level for release of the ATACMS M57 is Secret. The highest level of classified information that could be disclosed by a sale or by testing of the end item is Secret. The Fire Direction System, Data Processing Unit, and special application software are Secret. The highest level that must be disclosed for production, maintenance, or training is Confidential. The Communications Distribution Unit software is Confidential. The system specifications and limitations are classified Confidential. The vulnerability data, countermeasures, vulnerability/susceptibility analyses, and threat definitions are classified up to Secret.
2. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures which might reduce weapon system effectiveness or could be used in the development of a system with similar or advanced capabilities.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–39 with attached transmittal and policy justification.
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* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Thailand (GoT) has requested a possible sale of 4 UH–60M BLACK HAWK Helicopters, 10 T700–GE–701D Engines (8 installed and 2 spares), warranty, support equipment, spare and repair parts, personnel training and training equipment, publications and technical data, U.S. Government and contractor technical assistance, and other related logistics support. The estimated cost is $235 million.
This proposed sale will contribute to the foreign policy and national security of the United States, by helping to improve the security of a friendly country which has been, and continues to be, an important force for political stability and economic progress in South-East Asia.
The Government of Thailand intends to use the UH–60s to modernize its armed forces. This proposed sale will contribute to the GoT objective to update its military capabilities and improve interoperability between Thailand and the U.S., and among other allies.
The proposed sale of these helicopters and support will not alter the basic military balance in the region.
The principal contractors will be Sikorsky Aircraft Company in Stratford, Connecticut; and General Electric Aircraft Company (GEAC) in Lynn, Massachusetts. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require U.S. Government representatives to travel to Thailand for a period of 5 weeks for equipment deprocessing/fielding, system checkout and new equipment training and a Contractor Furnished Service Representative (CFSR) for a period of one year.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–37 with attached transmittal and policy justification.
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* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Colombia has requested a possible sale of 5 UH–60L BLACK HAWK Helicopters, 10 T700–GE–701D General Electric Engines, warranty, internal fuel tanks, spare and repair parts, tools and support equipment, publications and technical documentation, personnel training and training equipment, U.S. Government and contractor engineering, logistics, and technical support services, and other related elements of logistics support. The estimated cost is $87M.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country, which has been and continues to be an important force for political stability and economic progress in South America.
Colombia intends to use these helicopters to modernize its armed forces. The purchase of UH–60L BLACK HAWK Helicopters by the Colombian Army will contribute to Colombia's goal of updating its capabilities while enhancing interoperability between Colombia, the U.S., and other allies.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be Sikorsky Aircraft Corporation in Stratford, Connecticut. There are no known offset agreements proposed in connection with this potential sale.
Implementation of the proposed sale will require U.S. Government or contractor representatives to travel to Colombia for a period of 6 weeks for equipment deprocessing/fielding, and system checkout.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–30 with attached transmittal and policy justification, and Sensitivity of Technology.
Transmittal No. 12–30
Notice Of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(l) of the Arms Export Control Act, as amended
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(iv) Military Department: Army (UFN)
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* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Iraq has requested a possible sale of 6 AN/TPQ–36(V)11 FIREFINDER Radar Systems, 6 AN/TPQ–37(V)9 FIREFINDER Radars, 3 Meteorological Measuring Sets, 86 AN/VRC–92 export variant Single Channel Ground and Airborne Radio Systems, 12 Advanced Field Artillery Tactical Data Systems, 3 Improved Position and Azimuth Determining Systems, 63 M1152A1 and 3 M1151A1 High Mobility Multipurpose Wheeled Vehicles, 12 M1083A1 Family of Medium Tactical Utility Vehicles, government furnished equipment, common hardware and software, communication support equipment, tools and test equipment, spare and repair parts, support equipment, publications and technical data, personnel training and training equipment, U.S. Government and contractor engineering, logistics, and technical support services, and other related elements of logistics support. The estimated cost is $428 million.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country. This proposed sale directly supports the Iraq government and serves the interests of the Iraqi people and the United States.
The purchase of these target acquisition radars will enhance the Iraqi Army's foundational defense capability. The radars will significantly reduce the vulnerability of Iraqi forces to indirect fire attacks and provide them with the information to respond to such attacks.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractors will be Thales Raytheon Systems in Fullerton, California; Smith-Detection Technologies in Edgewood, Maryland, ITT Corporation in Fort Wayne, Indiana; Raytheon Company in Fort Wayne, Indiana; and L–3 Communications in Budd Lake, New Jersey. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require U.S. Government or contractor representatives to travel to Iraq for a period of six weeks for equipment de-processing/fielding, system checkout, new equipment training, and logistics support.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The AN/TPQ–36(V)11 and AN/TPQ–37(V)9 FIREFINDER Radars are Counter-Battery Artillery radar sets. The AN/TPQ–36(V)11 and AN/TPQ–37(V)9 Radars have no classified equipment or material included in this sale.
2. The AN/TPQ–36(V)11 FIREFINDER Radar is a medium-range battlefield surveillance radar that accurately, rapidly and automatically locates a variety of enemy indirect fire weapon systems. It can handle simultaneous fire from weapons at multiple locations, detecting and reporting their positions on the first round. The AN/TPQ–36(V)11 system is compact, mobile, reliable and maintainable.
3. The AN/TPQ–37(V)9 FIREFINDER Radar is a long-range battlefield surveillance radar that accurately, rapidly and automatically locates a variety of enemy indirect fire weapon systems. It can handle simultaneous fire from weapons at multiple locations, detecting and reporting their positions on the first round. The AN/TPQ–37(V)9 FIREFINDER Radar system is mobile, reliable and maintainable. It tracks, corrects and improves the fire of friendly weapons with registration and adjustment data.
4. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–07 with attached transmittal and policy justification.
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* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Lebanon has requested a possible sale of 6 Huey II helicopters, spare and repair parts, maintenance, support equipment, publications and technical documentation, personnel training and training equipment, repair and return, U.S. Government and contractor engineering and logistics support services, and other related elements of logistics support. The estimated cost is $63 million.
This proposed sale serves U.S. national, economic, and security interests by providing Lebanon with necessary mobility capabilities to maintain internal security, enforce United Nation's Security Council Resolutions 1559 and 1701, and counter terrorist threats.
The proposed sale of these aircraft will enable Lebanon to meet present and future challenges posed by internal and border security threats, evacuations, search and rescue, and drug interdiction operations. The Huey II will augment Lebanon's aging fleet of UH–1H aircraft.
The proposed sale of these vehicles and support will not alter the basic military balance in the region.
The prime contractor will be Bell Helicopter in Fort Worth, Texas. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Lebanon.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Department of Defense (DoD).
Notice of meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150, and in accordance with section 10(a)(2) of Public Law, a meeting of the Defense Health Board (DHB) is announced.
The August 22 meeting will be held at the Renaissance Chicago North Shore Hotel, 933 Skokie Blvd., Northbrook, IL 60062.
Ms. Christine Bader, Director, Defense Health Board, 7700 Arlington Boulevard, Suite 5101, Falls Church, VA 22042–5101, (703) 681–6653, Fax: (703) 681–9539,
Additional information, including the agenda and electronic registration are available at the DHB Web site,
The purpose of the meeting is to address and deliberate pending and new Board issues before the Board.
On August 21, 2012, the Board will be conducting an administrative working session. On August 22, 2012, the Board will receive briefings regarding military health needs and priorities including, a vote on Supraglottic Airways, information briefs from the Obesity Ad Hoc Work Group, the Categorizing Biological Agents In Post Mortem Risk Groups Ad Hoc Work Group, and Military Health Systems Governance Updates.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102–3.140 through 102–3.165 and subject to availability of space, the DHB meeting on August 22, 2012 will be open to the public from 9:00 a.m. to 12:00 p.m.
Any member of the public wishing to provide comments to the DHB may do so in accordance with 41 CFR 102–3.140(C) and section 10(a)(3) of the Federal Advisory Committee Act, and the procedures described in this notice.
Individuals desiring to provide comments to the DHB may do so by submitting a written statement to the DHB Designated Federal Officer (DFO) (see
If the written statement is not received at least 10 calendar days prior to the meeting, the DFO may choose to postpone consideration of the statement until the next open meeting.
The DFO will review all timely submissions with the DHB President and ensure they are provided to members of the DHB before the meeting that is subject to this notice. After reviewing the written comments, the DHB President and the DFO may choose to invite the submitter to orally present their issue during an open portion of this meeting or at a future meeting. The DFO, in consultation with the DHB President, may allot time for members of the public to present their issues for review and discussion by the DHB.
If special accommodations are required to attend (sign language, wheelchair accessibility) please contact Ms. Lisa Jarrett at (703) 681–6670 by Friday, August 10, 2012.
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense.
Notice of cancellation.
On July 18, 2012 (77 FR 42297), the Department of Defense Military Family Readiness Council (MFRC) announced a meeting to be held on Tuesday, August 15, 2012, from 2:00 p.m. to 4:00 p.m. at Pentagon Conference Center B6.
Pursuant to Section 10(a), Public Law 92–463, as amended, the Department of Defense announces that this meeting is cancelled due to the MFRC membership and charter not being approved in time for the August 15 meeting. The purpose of the Council meeting was to review the military family programs which will be the focus for the Council for this year, review the status of warrior care, and address selected concerns of
Ms. Melody McDonald or Ms. Betsy Graham, Office of the Deputy Under Secretary (Military Community & Family Policy), 4800 Mark Center Drive, Alexandria, VA 22350–2300, Room 3G15. Telephones (571) 372–0880; (571) 372–0881 and/or email:
DoD.
Renewal of Federal Advisory Committee.
Under the provisions of 10 U.S.C. 2166(e), the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and 41 CFR 102–3.50(a), the Department of Defense gives notice that it is renewing the charter for the Army Education Advisory Committee (hereafter referred to as “the Committee”).
The Committee shall provide independent advice and recommendations on matters relating to U.S. Army educational matters.
The Committee shall report to the Secretary of Defense, through the Secretary of the Army and the Chief of Staff of the U.S. Army. The Secretary of the Army may act upon the Committee's advice and recommendations. The Committee shall be composed of not more than 15 members, who are eminent authorities in the field of defense, management, leadership, and academia.
All Committee members shall be appointed by the Secretary of Defense and all member appointments require annual renewal by the Secretary of Defense. The Secretary of Defense may approve the appointments of Committee members for three-year terms of service; however, no member, unless authorized by the Secretary of Defense, may serve more than two consecutive terms of service. This same term of service limitation also applies to any DoD authorized subcommittees. Committee members appointed by the Secretary of Defense, who are not full-time or permanent part-time federal officers or employees, shall be appointed under the authority of 5 U.S.C. 3109, and serve as special government employees. In addition, all Committee members, with the exception of travel and per diem for official travel, shall serve without compensation. Each Committee member is appointed to provide advice on behalf of the government on the basis of his or her best judgment without representing any particular point of view and in a manner that is free from conflict of interest.
The Assistant Deputy Chief of Staff (G–3/5/7), U.S. Army Training and Doctrine Command, will serve as a non-voting member of the Committee and will appoint the Committee's Chairperson and Vice Chairperson from the total Committee membership. The Secretary of the Army or designated representative may invite other distinguished Government officers to serve as non-voting observers of the Committee. The Secretary of the Army, pursuant to DoD policies and procedures, may appoint, as deemed necessary, non-voting consultants to provide special expertise to the Committee. These consultants, if not full-time or part-time government employees, shall be appointed under the authority of 5 U.S.C. 3109, shall serve as special government employees, shall be appointed on an intermittent basis to work specific Committee-related efforts, and shall have no voting rights.
The Department, when necessary, and consistent with the Committee's mission and DoD policies and procedures, may establish subcommittees deemed necessary to support the Committee. Establishment of subcommittees will be based upon a written determination, to include terms of reference, by the Secretary of Defense, the Deputy Secretary of Defense, or the Committee's sponsor.
Such subcommittees shall not work independently of the chartered Committee, and shall report all their recommendations and advice to the Committee for full deliberation and discussion. Subcommittees have no authority to make decisions on behalf of the chartered Committee; nor can any subcommittee or its members update or report directly to the Department of Defense or any Federal officers or employees.
All subcommittee members shall be appointed in the same manner as Committee members; that is, the Secretary of Defense shall appoint subcommittee members even if the member in question is already a Committee member. Subcommittee members, with the approval of the Secretary of Defense, may serve a term of service on the subcommittee of three years subject to annual renewals; however, no member shall serve more than two consecutive terms of service on the subcommittee.
Subcommittee members, if not full-time or part-time government employees, shall be appointed to serve as experts and consultants under the authority of 5 U.S.C. 3109, and shall serve as special government employees, whose appointments must be renewed by the Secretary of Defense on an annual basis. With the exception of travel and per diem for official Committee related travel, subcommittee members shall serve without compensation.
All subcommittees operate under the provisions of FACA, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), governing Federal statutes and regulations, and governing DoD policies/procedures.
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703–692–5952.
The Committee shall meet at the call of the Designated Federal Officer (DFO), in consultation with the Committee's Chairperson. The estimated number of Committee meetings is two per year.
In addition, the DFO is required to be in attendance at all Committee and subcommittee meetings for the entire duration of each and every meeting; however, in the absence of the DFO, the Alternate DFO shall attend the entire duration of the Committee or subcommittee meeting. Pursuant to 41 CFR 102–3.105(j) and 102–3.140, the public or interested organizations may submit written statements to the Committee membership about the Committee's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned Committee meetings.
All written statements shall be submitted to the DFO, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Committee's DFO can be obtained from the GSA's FACA Database—
The DFO, pursuant to 41 CFR 102–3.150, will announce planned meetings of the Committee.
The DFO, at that time, may provide additional guidance on the submission
Department of the Army—U.S. Army Corps of Engineers, DOD.
Notice of Availability.
The U.S. Army Corp of Engineers, Los Angeles District (Regulatory Division), in coordination with the Port of Long Beach (Port), has completed a draft EIS/EIR for the Eagle Rock Aggregates Terminal Project. The proposed project would include the following in-water and land-based elements: dredging, land-based wharf improvements, and the installation of truck scales and conveyor system. Construction duration of the proposed project is estimated at 5 months.
The applicant, Eagle Rock Aggregates, Inc. requires authorization pursuant to Section 10 of the Rivers and Harbors Act in order to conduct dredging activities within waters of the U.S.
Pursuant to the California Environmental Quality Act (CEQA), the Port will serve as the Lead Agency for the preparation of an EIR for its consideration of development approvals within its jurisdiction. The Corps and the Port have agreed to jointly prepare a DEIS/DEIR in order to optimize efficiency and avoid duplication. The DEIS/DEIR is intended to be sufficient in scope to address Federal, State, and local requirements and environmental issues concerning the proposed activities and permit approvals.
The proposed project site is located at Berth D–44 on Pier D in the Port. The site is currently owned by L.G. Everist, Inc. and would be leased to Eagle Rock Aggregate, Inc. for terminal development and operation. The site, located at 1925 Pier D Street, is bounded by Channel 3 and SSA Matson to the north, G.P. Gypsum to the east, berth D–43 to the west, and Pier D Street to the south. The site was previously used as an aggregate import terminal by Connolly-Pacific Company, which operated the terminal from 2000 until 2009. During this time, the terminal received pre-sorted aggregate that was barged by diesel-powered tugs boats, then off-loaded by conveyor systems, stockpiled, and distributed.
In order to prepare the site to accept larger (Panamax-class) aggregate transport vessels, the proposed project would impact approximately 1 acre (490-foot-length by 120-foot-width) of waters of the U.S. within Channel 3 to dredge approximately 6,000 cubic yards of material. The channel bottom within the project area would be deepened from -40 feet Mean Lower Low Water (MLLW) to -46 feet (ft) MLLW over the majority of the dredge footprint, including a 2-foot over-dredge allowance (overdepth). In addition, the proposed project would include advanced maintenance dredging of 2-ft (to -48 feet MLLW) within a 400-foot-long by 20-foot-wide area located immediately adjacent to the berthing area to reduce the necessity for maintenance dredging over the near-term. The applicant has coordinated with the South Coast Dredge Material Management Team/Contaminated Sediments Task Force on disposal options, and has determined the material to be suitable for placement within the Port's Middle Harbor confined disposal facility. The Port has received prior approval for the Middle Harbor project from the Department of the Army (File No. SPL–2004–01053–AOA).
With the proposed project, land-based wharf improvements would include installing additional steel (stiff) legs for the new wharf structure and conveyor system, driving 28 steel piles to support the stiff legs, and installing the aggregate conveyor system. Additional site improvements would include the installation of truck scales and a pre-fabricated office building. No other site improvements are proposed under this project.
Alternatives currently being considered include the following:
(1) Aggregate receiving and storage terminal at berth D–43 utilizing Panamax-class vessels to deliver the aggregate material, including the dredging of approximately 6,000 cubic yards of sediment within Channel 3 (Proposed Project);
(2) Aggregate receiving and storage terminal at berth B–83 utilizing Panamax-class vessels to deliver the aggregate material. No dredging is proposed under this alternative (Alternative Site);
(3) Aggregate receiving and storage terminal at berth D–43 utilizing barges and tug boats to deliver the aggregate material. No dredging is proposed under this alternative (No Federal Action Alternative);
(4) No Project Alternative.
Copies of the document are available at
• Port of Long Beach Harbor Administration Building, 925 Harbor Plaza, Long Beach
• Long Beach City Clerk, 333 W. Ocean Boulevard, Long Beach
• Long Beach Main Library, 101 Pacific Avenue, Long Beach
• San Pedro Regional Branch Library, 931 Gaffey Street, San Pedro
• Wilmington Branch Library, 1300 N. Avalon Boulevard, Wilmington
Questions about the proposed action and DEIS/DEIR can be answered by John W. Markham, Corps Project Manager, at (805) 585–2150. Comments regarding the scope of the DEIS/DEIR shall be addressed to: U.S. Army Corp of Engineers, Los Angeles District, Ventura Field Office, ATTN: File Number SPL–2010–00602–JWM, 2152 Allessandro Drive, Suite 110, Ventura, California 93001. Alternatively, comments can be emailed to
The U.S Army Corps of Engineers and the Port of Long Beach will jointly hold a public hearing to receive public comments and to assess public concerns regarding the DEIS/EIR and project on August 22, 2012, starting at 6:00 p.m. (doors open at 5:30 p.m.) in the City of Long Beach City Council Chambers in Long Beach, 333 W. Ocean Boulevard, Long Beach, California. Written comments will be accepted until the close of the 45-day public review on September 17, 2012.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open meeting.
In accordance with 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), announcement is made of the forthcoming meeting.
Mr. John C. Furry, Designated Federal Officer, Headquarters, U.S. Army Corps of Engineers, 441 G Street NW., Washington, DC 20314–1000;
This meeting will be open to the public. Any interested person may attend. However, all attendees will enter and exit RMFB through the appropriate visitors security point(s). Attendees need to arrive in time to complete the security screening and arrive at the meeting room before 8:30. Attendees should be prepared to present two forms of valid photo identification, one of which must be government issued identification, and to pass through a scanning unit. The primary purpose of this meeting is for the Chief of Engineers to receive the views of his EAB; however, up to thirty minutes will be set aside for public comment. Anyone who wishes to speak must register prior to the start of the meeting. Written comments may also be submitted during registration. Registration will be from 8:00 until 8:25 a.m. Please note that the Board operates under the provisions of the Federal Advisory Committee Act, as amended, so all submitted comments and public presentations will be treated as public documents and may be made available for public inspection, including, but not limited to, being posted on the Board's Web site.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:.
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following PURPA 210(m)(3) filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Description: Application of Escanaba Green Energy, LLC for Order Authorizing Transaction Under Section 203 of the Federal Power Act, and Request for Waivers.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Description: Notice of Change in Status of Rocky Ridge Wind Project, LLC.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Pursuant to 40 CFR 1506.9.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Starting October 1, 2012, EPA will not accept paper copies or CDs of EISs for filing purposes; all submissions on or after October 1, 2012 must be made through e-NEPA.
While this system eliminates the need to submit paper or CD copies to EPA to meet filing requirements, electronic submission does not change requirements for distribution of EISs for public review and comment. To begin using e-NEPA, you must first register with EPA's electronic reporting site—
Environmental Protection Agency (EPA).
Notice; request for public comment.
Under Section 122(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), notice is hereby given of two proposed administrative settlements for recovery
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the Municipal Agreements. The Agency will consider all comments received and may modify or withdraw its consent to the two settlements if comments received disclose facts or considerations which indicate that either of the settlements is inappropriate, improper, or inadequate.
Comments must be provided within September 4, 2012.
Comments should be addressed to the U.S. Environmental Protection Agency, Office of Regional Counsel, 290 Broadway, 17th Floor, New York, New York 10007–1866 and should refer to the Buckbee-Mears Co. Superfund Site located in Cortland, New York, Cortland County, EPA Region II Docket No.'s CERCLA–02–2012–2018 and CERCLA–02–2012–2024.
U.S. Environmental Protection Agency, Office of Regional Counsel, 290 Broadway, 17th Floor, New York, New York 10007–1866, Attention: Marla E. Wieder, Assistant Regional Counsel at (212) 637–3184.
A copy of the proposed settlements may be obtained from Marla E. Wieder, Assistant Regional Counsel at the address above, or via email at
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
In accordance with requirements of the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501
Comments must be submitted on or before September 4, 2012.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
• Email:
• Mail: Leneta G. Gregorie (202–898–3719), Counsel, Room NYA–5050, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429.
• Hand Delivery: Comments may be hand-delivered to the guard station at the rear of the 17th Street Building (located on F Street), on business days between 7:00 a.m. and 5:00 p.m.
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Leneta G. Gregorie, at the FDIC address above.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 8.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Federal Deposit Insurance Corporation.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to:
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Federal Deposit Insurance Corporation.
Update Listing of Financial Institutions in Liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
Federal Deposit Insurance Corporation.
Update Listing of Financial Institutions in Liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
Federal Deposit Insurance Corporation.
Federal Housing Finance Agency.
60-day Notice of Submission of Information Collection for Approval from the Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Agency (FHFA) is seeking public comments concerning a currently approved information collection known as “Community Support Requirements,” which has been assigned control number 2590–0005 by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three year extension of the control number, which is due to expire on October 31, 2012.
Written comments must be received on or before October 2, 2012.
•
•
•
We will post all public comments we receive without change, including any personal information you provide, such as your name, telephone number, and address, on the FHFA Web site at
Sylvia C. Martinez, Management Advisor, Division of Bank Regulation (DBR), Federal Housing Finance Agency, by telephone at 202–649–3301 (not a toll-free number), or by electronic mail at
Section 10(g)(1) of the Federal Home Loan Bank Act (Bank Act) requires FHFA to promulgate regulations establishing standards of community investment or service that Federal Home Loan Bank (Bank) member institutions must meet in order to maintain access to long-term advances.
Part 1290 of FHFA's regulations implements the statutory requirements by providing uniform community support standards that all Bank members must meet, as well as review criteria that FHFA staff must apply to determine compliance with section 10(g) of the Bank Act.
Section 1290.5 describes the circumstances under which FHFA will restrict a member's access to long-term Bank advances for failure to meet the community support requirements. It also permits Bank members whose access to long-term advances has been restricted to apply directly to FHFA to remove the restriction under certain circumstances.
The information collection contained in Form 60 and part 1290 are necessary to enable and are used by FHFA to determine whether Bank members satisfy the statutory and regulatory community support requirements. Only Bank members that meet these requirements may maintain continued access to long-term Bank advances.
The OMB number for the information collection is 2590–0005. The OMB clearance for the information collection expires on October 31, 2012. The likely respondents are institutions that are Bank members.
The FHFA estimates the total annual average number of respondents that must complete Form 60 at 3,900 Bank members (half of all Bank members each year), with one response per member and an average burden per response of one hour. In addition, FHFA estimates the total annual average number of Bank members whose access to long-term advances has been restricted that will apply to FHFA to remove the restriction at 14 Bank members, with one response per member and an average burden per response of one hour. Thus, the estimate for the total annual hour burden is 3,914 hours.
Written comments are requested on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of the FHFA estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 27, 2012.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261–4528:
1.
B. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690–1414:
1.
C. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
1.
2.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 17, 2012.
A Federal Reserve Bank of New York (Ivan Hurwitz, Vice President) 33 Liberty Street, New York, New York 10045–0001:
1.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Feed Materials Production Center in Fernald, Ohio, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On June 27, 2012, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
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.
This designation became effective on July 27, 2012, as provided for under 42 U.S.C. 7384
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C–46, Cincinnati, OH 45226, Telephone 877–222–7570. Information requests can also be submitted by email to
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) has taken final action in the following case:
ORI found that the Respondent engaged in research misconduct by falsifying results reported for research supported by U.S. Public Health Service (PHS) grants R21 CA107316 and R03 CA107831, in progress reports for those grants and in two publications in scientific journals.
It is expressly understood that by entering into a Voluntary Settlement Agreement (Agreement), Respondent is not admitting to any of the allegations made against him by JWCI and/or ORI, or any of their respective agents, employees, associates, or related persons, including but not limited to the findings made by ORI listed in the Agreement. Respondent agreed to enter into the Agreement and not to contest the findings contained therein solely because contesting the findings would cause Respondent undue financial hardship and stress, and Respondent wished to seek finality.
1. Respondent falsified the number of subjects accrued in the double-blind study reported in the paper Ravindranath, M.H., Muthugounder, S., Presser, N., Ye, X., Brosman, S., & Morton, D.L. “Endogenous immune response to gangliosides in patients with confined prostate cancer.”
2. The methodology used for the Tables of ANOVA results comparing Log Titers of IgM antibodies for the different subject groups in the
3. In Table 1 of the CA107831 Final Report, Respondent reported mean log titer values for GM1b for healthy, BHP, and T3/4 CaP patients. These values exactly matched with values published for a different ganglioside, GM1, for healthy, BHP, and T3/4 CaP patients, earlier in the
4. Because Respondent included serial bleed values from individual patients in Table 1 of the
Dr. Ravindranath has entered into a Voluntary Settlement Agreement and has voluntarily agreed for a period of three (3) years, beginning on July 2, 2012:
(1) To have any PHS-supported research supervised; Respondent agreed that prior to the submission of an application for PHS support for a research project on which the Respondent's participation is proposed and prior to Respondent's participation in any capacity on PHS-supported research, Respondent shall ensure that a plan for supervision of Respondent's duties is submitted to ORI for approval; the supervision plan must be designed to ensure the scientific integrity of Respondent's research contribution; Respondent agreed that he shall not participate in any PHS-supported research until such a supervision plan is submitted to and approved by ORI; Respondent agreed to maintain responsibility for compliance with the agreed upon supervision plan;
(2) That any institution employing him shall submit, in conjunction with each application for PHS funds, or report, manuscript, or abstract involving PHS- supported research in which Respondent is involved, a certification to ORI that the data provided by Respondent are based on actual experiments or are otherwise legitimately derived, that the data, procedures, and methodology are accurately reported in the application, report, manuscript, or abstract, and that the text in such submissions is his own or properly cites the source of copied language and ideas; and
(3) To exclude himself voluntarily from serving in any advisory capacity to PHS including, but not limited to, service on any PHS advisory committee, board, and/or peer review committee, or as a consultant.
Director, Division of Investigative Oversight, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453–8800.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services.
Notice.
NIOSH gives notice as required by 42 CFR 83.12(e) of a decision to evaluate a petition to designate a class of employees from the Bakers Brothers site in Toledo, Ohio, to be included in the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000. The initial proposed definition for the class being evaluated, subject to revision as warranted by the evaluation, is as follows:
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health, 4676 Columbia Parkway, MS C–46, Cincinnati, OH 45226, Telephone 877–222–7570. Information requests can also be submitted by email to
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces a 3-year Medicare Prior Authorization for Power Mobility Device (PMD) Demonstration for certain PMD codes in seven states where there have been high incidences of fraudulent claims and improper payments
This demonstration begins on September 1, 2012.
Daniel Schwartz, 410–786–4197.
Questions regarding the Medicare Prior Authorization for PMD Demonstration should be sent to
Power Mobility Devices have had historically high incidents of fraud and improper payments. PMD suppliers also continue to be subject to significant law enforcement investigation.
The Health Care Fraud Prevention and Enforcement Action Team (HEAT) Task Force was launched in May 2009 and is co-chaired by the Deputy Secretary of HHS and the Deputy Attorney General of DOJ. Medicare Fraud Strike Force teams are a key component of HEAT, since their inception and based on data driven investigations, prosecutors have filed more than 600 cases charging more than 1,150 defendants who collectively billed the Medicare program more than $2.9 billion in fraudulent claims. DME is a primary focus of investigation for these strike forces.
The Comprehensive Error Rate Testing (CERT) Program noted in a 2010 Report
Section 402(a)(1)(J) of the Social Security Amendments of 1967, 42 U.S.C. 1395b–1(a)(1)(J), authorizes the Secretary to conduct demonstrations designed to develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services provided under the Medicare program. We plan to conduct a demonstration that implements a prior authorization process for power mobility devices (PMDs), an area with historically high levels of fraud and improper payments, to develop improved methods for the investigation and prosecution of fraud
We believe this demonstration will provide the agency with valuable data through which the agency, working with its partners, can develop new avenues for combating the submission of fraudulent claims to the Medicare program for PMDs. We will share data developed from this demonstration within the agency, with our contractors, and with our law enforcement partners for further analysis and investigation. We believe that data evidencing changes in physician ordering and supplier billing practices that coincide with this demonstration could provide investigators and law enforcement with important information for determining how and where to focus their investigations concerning fraud in the provision of PMDs. For instance, results from this demonstration could potentially indicate collaboration between ordering physicians and suppliers in submitting fraudulent claims for PMDs. This data could assist investigators and law enforcement in targeting their investigations in this area. Additionally, changes in billing practices that result from this demonstration could provide specific leads for investigators and law enforcement personnel. For instance, where a supplier that frequently submitted claims prior to the demonstration stops submitting claims during the demonstration, law enforcement may determine it prudent to investigate that supplier.
Data we will analyze will include the following:
• Suppliers who no longer bill or have a significant decrease in billing.
• Physicians/treating practitioners with a high volume of submissions.
• Codes that show a dramatic increase in use.
• Codes that show a dramatic decrease in use.
The demonstration will likely have a secondary benefit to help identify and reduce improper payments. We recognize that many improper payments are not the result of willful fraud. Information shared with law enforcement will be limited to data on those providers and suppliers who are potentially submitting fraudulent claims and other information that we believe will assist with the investigation and prosecution of fraud.
Section 402(b) of the Social Security Amendments of 1967 authorizes the Secretary to waive requirements in Title XVIII that relate to reimbursement and payment in order to carry out the demonstrations authorized under section 402(a). In accordance with section 402(b), the Secretary waives certain requirements of sections 1834(a), 1834(j)(4) and 1879 of the Social Security Act to the extent necessary to implement this demonstration, including, but not limited to, certain payment and reimbursement regulations set forth at 42 CFR part 414, Subpart D and 42 CFR Part 411, Subpart K.
This demonstration will implement a prior authorization process for PMDs in seven states where historically there has been extensive evidence of fraud and improper payments (CA, FL, IL, MI, NY, NC, and TX).
The prior authorization process under this demonstration is available for the following codes for Medicare payment:
• Group 1 Power Operated Vehicles (K0800 through K0802 and K0812).
• All standard power wheelchairs (K0813 through K0829).
• All Group 2 complex rehabilitative power wheelchairs (K0835 through K0843).
• All Group 3 complex rehabilitative power wheelchairs without power options (K0848 through K0855).
• Pediatric power wheelchairs (K0890 and K0891).
• Miscellaneous power wheelchairs (K0898).
Prior to the start of the demonstration, we have conducted and will continue to conduct outreach and education including webinars, in-state meetings and other education sessions. Additional information about the implementation of the prior authorization demonstration is available on the CMS Web site (go.cms.gov/PAdemo). In addition, suppliers who have recently furnished and practitioners who have recently ordered a PMD for a beneficiary residing in a demonstration state will be notified via certified letters about the demonstration prior to the start date of the demonstration.
Under this demonstration, a physician, treating practitioner, or supplier will be encouraged to submit to their Durable Medical Equipment (DME) Medicare Administrative Contractor (MAC) a request for prior authorization and all relevant documentation to support Medicare coverage of the PMD item along with the written order for the covered item. The physician, treating practitioner or supplier who submits the request on behalf of the physician or treating practitioner, is referred to as the “submitter.” In order to be affirmed, the request for prior authorization must meet all applicable rules, policies, and National Coverage Determination (NCD)/Local Coverage Determination (LCD) requirements for PMD claims.
LCD requirements mandating physician/treating practitioner origination, such as the seven-element order, face-to-face encounter documentation and whatever other clinical documentation is necessary, must be completed by the physician/treating practitioner regardless of which entity is functioning as the submitter. The supplier will still complete the detailed product description regardless of which entity is functioning as the submitter.
After receipt of all relevant documentation, CMS or its agents will make every effort to conduct a review and postmark the notification of their decision with the prior authorization number within 10 business days. Notification is provided to the physician/treating practitioner, supplier, and the Medicare beneficiary for the initial submission. If a subsequent prior authorization request is submitted after a nonaffirmative decision on a prior authorization request, then CMS or its agents will make every effort to conduct a review and postmark the notification of decision with the prior authorization number within 20 business days. These timeframes will become part of the contractors' performance metrics.
There will also be a mechanism in place to request an expedited review in emergency situations where a practitioner indicates clearly, with supporting rationale that the standard (routine) timeframe for a Prior Authorization Decision (10 days) could seriously jeopardize the beneficiary's life or health. In these cases, the contractor will conduct an expedited review. The expedited request must be accompanied by the required supporting documentation for this request to be considered complete thus commencing the 48 hours for review. Inappropriate expedited requests may be downgraded to standard requests. After conducting an expedited review, CMS or its agents will communicate a decision for the prior authorization request to the submitter within 48 hours of the complete submission.
The following explains the various prior authorization scenarios:
• Scenario 1: When a submitter sends a prior authorization request to the DME
• Scenario 2: When a submitter sends a prior authorization request but all relevant Medicare coverage requirements are not met for the PMD, then the DME MAC sends a nonaffirmative prior authorization decision to the physician or treating practitioner, supplier, and Medicare beneficiary advising them that Medicare will not pay for the item. A supplier can deliver the PMD, and submit a claim with a non-affirmative prior authorization decision, at which point the DME MAC would deny the claim. The supplier and/or the beneficiary would then have the Medicare denial for secondary insurance purposes and would have full appeal rights.
If an applicable PMD claim is submitted without a prior authorization decision it will be stopped and documentation will be requested to conduct medical review. After the first 3 months of the demonstration, we will assess a payment reduction for claims that, after review, are deemed payable, but did not first receive a prior authorization decision. As evidence of compliance, the supplier must submit the prior authorization number on the claim in order to avoid a 25 percent payment reduction. The 25 percent payment reduction is non-transferrable to the beneficiary and not subject to appeal. In the case of capped rental items, the payment reduction will be applied to all claims in the series.
The 25-percent reduction in the Medicare payment is for each payable base claim not preceded by a prior authorization request except in competitive bidding areas. If a competitive bid contract supplier submits a payable claim for a beneficiary with a permanent residence in a competitive bidding area, that is included in the supplier's contract, without first receiving a prior authorization decision, that competitive bid supplier would receive the applicable single payment amount under the competitive bid program, and would not be subject to the 25-percent reduction. These suppliers must still adhere to all other requirements of the demonstration.
• Scenario 3: When a submitter sends a prior authorization request where documentation is incomplete, the prior authorization request is sent back to the submitter with an explanation about what information is missing. The submitter can rectify the situation and resubmit the prior authorization request. The physician or treating practitioner, supplier, and Medicare beneficiary are also notified.
• Scenario 4: When the DME supplier fails to receive a prior authorization decision, but nonetheless delivers the item to the beneficiary and submits the claim to the DME MAC for payment, the PMD claim will be reviewed under normal medical review processing timeframes.
++ If the claim is determined to be not medically necessary or insufficiently documented, the claim will be denied. The supplier and/or beneficiary can appeal the claim denial. If the claim, after review, is deemed not payable then all current beneficiary/supplier liability policies and procedures as well as appeal rights remain in effect.
++ If the claim is determined to be payable, it will be paid. However, 3 months after the start of the demonstration, a 25-percent reduction in the Medicare Payment will be applied for failure to receive a prior authorization decision before the submission of a claim. This payment reduction will not be applied for competitive bidding program contract suppliers submitting claims for beneficiaries who maintain a permanent residence in a Competitive Bidding Area in their contracts according to the Common Working File (CWF)); these contract suppliers will continue to receive the applicable single payment amount under their contracts. The 25-percent payment reduction is non-transferrable to the beneficiary for the claims that are deemed payable. This payment reduction will begin 3 months after the start of the demonstration and is not subject to appeal. In the case of capped rental items the payment reduction will be applied to all claims in the series. After a claim is submitted and processed, appeal rights are available as they normally are.
Under the demonstration, we will work to limit the impact on beneficiaries. We will educate beneficiaries as part of this protection. If the prior authorization request is not affirmed, and the claim is still submitted by the supplier, the claim will be denied in full, but beneficiaries will continue to have all normal appeal rights as well as the option of signing an Advance Beneficiary Notice in order to receive and be liable for payment for a denied PMD.
Additional information is available on the CMS Web site at go.cms.gov/PAdemo.
We announced and solicited comments for the information collection requirements associated with the Medicare Prior Authorization for Power Mobility Device (PMD) Demonstration for certain PMD codes in 60-day and 30-day
Section 402(a)(1)(J) of the Social Security Amendments of 1967.
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 September 4, 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
Daniel Gittleson, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–5156,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
On June 22, 2009, the President signed the Tobacco Control Act (Pub. L. 111–31) into law. The Tobacco Control Act amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 301
Section 905(b) of the FD&C Act (21 U.S.C. 387e(b)), as amended by the Tobacco Control Act, requires that “every person who owns or operates any establishment in any State engaged in the manufacture, preparation, compounding, or processing of a tobacco product or tobacco products * * *” register with FDA the name, places of business, and all establishments owned or operated by that person. Every person must register by December 31 of each year. Section 905(c) of the FD&C Act requires that first-time persons “engaging in the manufacture, preparation, compounding, or processing of a tobacco product or tobacco products shall register with the Secretary the name, places of business, and all such establishments of that person.” Section 905(d) states that persons required to register under sections 905(b) or 905(c) shall register any additional establishment that they own or operate in any state which begins the manufacture, preparation, compounding, or processing of a tobacco product or tobacco products. Section 905(h) addresses foreign establishment registration requirements, which will go into effect when regulations are promulgated by the Secretary. Section 905(i)(1) of the FD&C Act, as amended by the Tobacco Control Act, requires that all registrants “shall, at the time of registration under any such subsection, file with [FDA] a list of all tobacco products which are being manufactured, prepared, compounded, or processed by that person for commercial distribution,” along with certain accompanying consumer information, such as all labeling and a representative sampling of advertisements. Section 904(a)(1) of the FD&C Act (21 U.S.C. 387d(a)(1)), as amended by the Tobacco Control Act, requires each tobacco product manufacturer or importer, or agent thereof, to submit “a listing of all ingredients, including tobacco, substances, compounds, and additives that are * * * added by the manufacturer to the tobacco, paper, filter, or other part of each tobacco product by brand or by quantity in each brand and subbrand.” Since the Tobacco Control Act was enacted on June 22, 2009, the information required under section 904(a)(1) must be submitted to FDA by December 22, 2009, and include the ingredients added as of the date of submission. Section 904(c) of the FD&C Act also requires submission of information whenever additives, or the quantities of additives, are changed.
FDA issued guidance documents on both: (1) Registration and Product Listing for Owners and Operators of Domestic Tobacco Product Establishments (November 12, 2009; 74 FR 58298) and (2) Listing of Ingredients in Tobacco Products (December 1, 2009; 74 FR 62795) to assist persons making such submissions to FDA under the Tobacco Control Act. While electronic submission of registration and product listing information and ingredient listing information are not required, FDA is strongly encouraging electronic submission to facilitate efficiency and timeliness of data management and collection. To that end, FDA designed the eSubmitter application to streamline the data entry process for registration and product listing and for ingredient listing. This tool allows for importation of large quantities of structured data, attachment of files (e.g., in portable document format (PDFs) and certain media files), and automatic acknowledgement of FDA's receipt of submissions. FDA also developed paper forms (Form FDA 3742—Registration and Listing for Owners and Operators of Domestic Tobacco Product Establishments and Form FDA 3743—Listing of Ingredients in Tobacco Products) as an alternative submission tool. Both the eSubmitter application and the paper forms can be accessed at
In the
FDA estimates the burden of this collection of information as follows:
Since this collection of information was last approved by OMB on December 2, 2010, its burden has decreased by 407,421 hours, from 408,775 to 1,354 reporting hours. This adjustment is a result of FDA experience over the past 2 years in the regulation of tobacco products and is based on the actual number of establishment registration and product ingredient submissions received during this time period. In 2010, when this collection was first published for public comment in the
Based on the actual number of registration and product ingredient listing reports received by FDA over the past 2 years, the number of expected annual responses is projected to decrease from 100,000 registration responses to 200 annual responses, and from 11,000 annual product ingredient listing responses to 200 annual product ingredient responses. The Agency bases its estimate on the actual number of registration and listing and product ingredient listing reports received, its experience with the submission of registration and listing requirements applicable to other FDA regulated products, and ongoing interactions with industry. FDA estimates that the submission of registration information as required by section 905 of the FD&C Act will remain at 3.75 hours per establishment. Based on the actual number of registration information submitted in the past 2 years and its experience, the Agency estimates that approximately 200 registrations will be submitted from 125 tobacco product establishments annually, for a total 750 hour burden (125 respondents × 1.6 responses per respondent × 3.75 hours per response).
FDA estimates that the submission of ingredient listing information as required by section 904 of the FD&C Act will remain at 3.0 hours per tobacco product. Based on the actual number of product ingredient listings submitted over the past 2 years and its experience, the Agency estimates that approximately 200 ingredient listings will be submitted from 125 tobacco establishments, for a total 600 burden hours (125 respondents × 1.6 responses per respondent × 3.0 hours per response).
FDA estimates that obtaining a Dun and Bradstreet (DUNS) number will take 0.5 hours, and that 8 respondents (1 percent (1.25) of establishments required to register under section 905 and 5 percent (6.25) of submitters required to list ingredients under section 904) will not already have a DUNS number. The total burden, therefore, will be 4 hours (8 respondents × 1 response per respondent × 0.5 hours per response).
Total burden hours for this collection, therefore is 1,354 hours (750 + 600 + 4 hours).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “General Administrative Procedures: Citizen Petitions; Petition for Reconsideration or Stay of Action; Advisory Opinions” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Ila S. Mizrachi, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–7726,
On March 27, 2012, the Agency submitted a proposed collection of information entitled ” General Administrative Procedures: Citizen Petitions; Petition for Reconsideration or Stay of Action; Advisory Opinions” 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 0910–0183. The approval expires on June 30, 2014. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration's (FDA) Center for Drug Evaluation and Research is announcing a 4-day public workshop entitled “Gastroenterology Regulatory Endpoints and the Advancement of Therapeutics (GREAT).” The purpose of this workshop is to provide a forum to consider issues related to endpoints that can support drug development in the following disease areas: Eosinophilic esophagitis, pediatric and adult inflammatory bowel disease, and parenteral nutrition-associated liver disease.
The public workshop will be held on September 19, 20, 21, and 24, 2012, from 8:30 a.m. to 5 p.m.
The public workshop will be held at the Holiday Inn, 10000 Baltimore Ave., College Park, MD 20740.
Kevin Bugin, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993–0002, 301–796–2302, FAX: 301–796–9905,
This workshop will address endpoints for registration trials. Stakeholders, including industry sponsors, academia, and FDA, will be engaged to address challenging issues related to selection of endpoints and assessment methodologies in registration trials. Facilitation of efficient drug development, in the context of these issues, will be discussed.
Each day of the workshop will be devoted to a discussion of a single relevant disease area. The goal of the workshop day dedicated to eosinophilic esophagitis is to discuss its natural history, development of patient reported outcome measures, and biomarkers that might be used to study new treatments for both children and adults. The goal of the workshop day dedicated to pediatric inflammatory bowel disease (IBD) is to discuss issues related to the extrapolation of efficacy data from adult to pediatric patients, the definition and measurement of treatment benefit, and dose-finding strategies in pediatric patients. The goal of the workshop day dedicated to adult IBD is to discuss the definition and measurement of efficacy in adult ulcerative colitis registration trials, including the timing of endpoint assessment and the roles of specific endpoints and measurement tools. The goal of the workshop day dedicated to parenteral nutrition-induced liver disease is to discuss endpoints and their measurement for clinical trials in which parenteral nutrition-induced liver disease is either an efficacy or safety outcome measure.
If you need special accommodations due to a disability, please contact Kevin Bugin (see
Transcripts:
Transcripts of the workshop will be available for review at the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and on the Internet at
Pursuant to Public Law 92–463, notice is hereby given of the meeting on of the Substance Abuse and Mental Heal Services Administration's (SAMHSA) Center for Mental Health Services (CMHS) National Advisory Council on August 16, 2012.
The meeting will include topics such as budget, homelessness, and recovery support services initiative.
The meeting is open to the public and will be held online via Live Meeting. Participants can join the event directly at
Substantive program information may be obtained after the meeting by accessing the SAMHSA Committee Web site,
Center for Mental Health Services National Advisory Council.
Coast Guard, DHS.
Notice of meeting; request for comments.
The United States Coast Guard will hold a public meeting in Washington, DC on environmental topics related to the development of a mandatory code for ships operating in polar waters by the International Maritime Organization (IMO Polar Code).
The public meeting will be held on Tuesday, August 28, 2012 from 9:30 a.m. to 4 p.m., EST, to provide an opportunity for oral comments. Written comments and related material may also be submitted to Coast Guard personnel specified at that meeting. All comments and related material submitted after the meeting must either be submitted to our online docket via
The public meeting will be held at the United States Coast Guard Headquarters Transpoint Building, Room 2501, 2100 Second Street Southwest, Washington, DC 20593, approximately 1 mile from the Waterfront-SEU Metro Station. Due to building security requirements, each visitor must present two forms of government-issued photo identification in order to gain entrance to the building.
You may submit written comments identified by docket number USCG–2012–0720 before or after the meeting using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. Our online docket is available on the Internet at
If you have questions concerning the meeting, please call or email Lieutenant Andrew Gibbons, U.S. Coast Guard; telephone 202–372–1485, email
We encourage you to participate in this matter 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 notice (USCG–2012–0720) and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.
To submit your comment online, go to
To view comments, as well as documents mentioned in this notice 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
The Coast Guard will hold a public meeting regarding environmental topics related to the development of the IMO Polar Code. The public meeting will be held on Tuesday, August 28, 2012 from 9:30 a.m. to 4 p.m., EST at the United States Coast Guard Headquarters Transpoint Building, Room 2501, 2100 Second Street Southwest, Washington, DC 20593, approximately 1 mile from the Waterfront-SEU Metro Station. Due to building security requirements, each visitor must present two forms of government-issued photo identification in order to gain entrance to the building.
The purpose of this public meeting is to discuss relevant topics for consideration in development of environmental sections of the IMO Polar Code. The public meeting will address additional risks and hazards unique to the Arctic and Antarctic regions and any additional safeguards to be considered in the environmental sections of the IMO Polar Code. The primary topics that will be considered at the public meeting include:
• International Convention for the Prevention of Pollution from Ships (MARPOL Annexes I–VI);
• International Convention for the Control and Management of Ships' Ballast Water and Sediments;
• International Convention on the Control of Harmful Anti-fouling Systems on Ships; and
• Other considerations including voyage planning, greywater, underwater noise, marine mammals, heavy grade fuel oil (HFO), and pollution response.
Please note that the public meeting has a limited number of seats and may close early if all business is finished. Also, teleconferencing will be available. Those interested in teleconferencing
Members of the public may attend this meeting up to the seating capacity of the room. To facilitate the security process related to building access, or to request reasonable accommodation, those who plan to attend should contact the meeting coordinator, Lieutenant Andrew Gibbons, at the telephone number or email address indicated under the
Members of the public are encouraged to participate and join in discussions, subject to the discretion of the moderator. If you bring written comments to the meeting, you may submit them to Coast Guard personnel specified at the meeting to receive written comments. These comments will be submitted to our online public docket. All comments received will be posted without change to
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Lieutenant Andrew Gibbons at the telephone number or email address indicated under the
60–Day Notice.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice is published in the
During this 60 day period, USCIS will be evaluating whether to revise the Form I–129CW. Should USCIS decide to revise Form I–129CW we will advise the public when we publish the 30-day notice in the
Written comments and suggestions regarding items contained in this information collection notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Office of Policy and Strategy, Laura Dawkins, Chief, Regulatory Coordination Division, 20 Massachusetts Avenue NW., Washington, DC 20529. Comments may be submitted to DHS via email at
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
We may also be contacted at: USCIS, Office of Policy and Strategy, Regulatory Coordination Division, 20 Massachusetts Avenue NW., Washington, DC 20529, Telephone number 202–272–1470.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7262, Washington, DC 20410; telephone (202) 708–1234; TTY number for the hearing- and speech-impaired (202) 708–2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with the December 12, 1988 court order in
Office of the Assistant Secretary for Policy Development and Research, HUD.
Notice of Proposed Fiscal Year (FY) 2013 Fair Market Rents (FMRs).
Section 8(c)(1) of the United States Housing Act of 1937 (USHA) requires the Secretary to publish FMRs periodically, but not less than annually, adjusted to be effective on October 1 of each year. The primary uses of FMRs are to determine payment standards for the Housing Choice Voucher (HCV) program, to determine initial renewal rents for some expiring project-based Section 8 contracts, to determine initial rents for housing assistance payment contracts in the Moderate Rehabilitation Single Room Occupancy program, and to serve as rent ceilings in the HOME program. Today's notice provides proposed FY 2013 FMRs for all areas that reflect the estimated 40th and 50th percentile rent levels trended to April 1, 2013. The FY 2013 FMRs are based on using 5-year, 2006–2010 data collected by the American Community Survey (ACS). These data are updated by one-year ACS data using areas where statistically valid one-year ACS data is available. The Consumer Price Index (CPI) rent and utility indexes are used to further update the data from 2010 to the end of 2011. HUD continues to use ACS data in different ways according to how many two-bedroom standard-quality and recent-mover sample cases are available in the FMR area or its Core-Based Statistical Area (CBSA).
The proposed FY 2013 FMR areas are based on current Office of Management and Budget (OMB) metropolitan area definitions and include HUD modifications that were first used in the determination of FY 2006 FMR areas. Changes to the OMB metropolitan area definitions through December 2009 are incorporated; there have been no further metropolitan area definitions changes.
The proposed FY 2013 FMRs in this notice reflect several updates to the methodology used to calculate FMRs. First, HUD has updated the bedroom ratios used to calculate 0, 1, 3 and 4 bedroom FMRs based on the 2 bedroom FMR. The new bedroom ratios are constructed using 2006–2010 5-year ACS data. The methodology for calculating the bedroom ratios is very similar to the method used when the bedroom ratios were based on 2000 decennial census long-form data. Second, these FMRs reflect a new trend factor calculation methodology which HUD stated would be implemented in its proposed FY 2012 FMR publication on August 19, 2011 (76 FR 52058). This trend factor is based on national gross rent data and will change annually.
Interested persons are invited to submit comments regarding the proposed FMRs to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410–0001. Communications must refer to the above docket number and title and should contain the information specified in the “Request for Comments” section. There are two methods for submitting public comments.
1.
2.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.
For technical information on the methodology used to develop FMRs or a listing of all FMRs, please call the HUD USER information line at 800–245–2691 or access the information on the HUD USER Web site
Questions related to use of FMRs or voucher payment standards should be directed to the respective local HUD program staff. Questions on how to conduct FMR surveys or concerning further methodological explanations may be addressed to Marie L. Lihn or Peter B. Kahn, Economic and Market Analysis Division, Office of Economic Affairs, Office of Policy Development and Research, telephone 202–708–0590. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800–877–8339. (Other than the HUD USER information line and TDD numbers, telephone numbers are not toll-free.)
Section 8 of the USHA (42 U.S.C. 1437f) authorizes housing assistance to aid lower-income families in renting safe and decent housing. Housing assistance payments are limited by FMRs established by HUD for different geographic areas. In the HCV program, the FMR is the basis for determining the “payment standard amount” used to calculate the maximum monthly subsidy for an assisted family (see 24 CFR 982.503). In general, the FMR for an area is the amount that would be needed to pay the gross rent (shelter rent plus utilities) of privately owned, decent, and safe rental housing of a modest (non-luxury) nature with suitable amenities. In addition, all rents subsidized under the HCV program must meet reasonable rent standards. HUD's regulations at 24 CFR 888.113 permit it to establish 50th percentile FMRs for certain areas.
Section 8(c) of the USHA requires the Secretary of HUD to publish FMRs periodically, but not less frequently than annually. Section 8(c) states, in part, as follows:
Proposed fair market rentals for an area shall be published in the
HUD's regulations at 24 CFR part 888 provide that HUD will develop proposed FMRs, publish them for public comment, provide a public comment period of at least 30 days, analyze the comments, and publish final FMRs. (See 24 CFR 888.115.)
In addition, HUD's regulations at 24 CFR 888.113 set out procedures for HUD to assess whether areas are eligible for FMRs at the 50th percentile. Minimally qualified areas
In FY 2012 there were 21 areas using 50th-percentile FMRs. Of these 21 areas, 7 of them have completed three years of program participation and are due for re-evaluation. The following table lists these 7 areas.
Only 5 of the 7 areas up for re-evaluation will continue to be 50th-percentile FMR areas:
The Washington-Arlington-Alexandria, DC–VA–MD HMFA did not deconcentrate and will not be eligible for evaluation for three years, until the FY 2016 FMRs are evaluated. Additionally, the Grand Rapids-Wyoming, MI HMFA “graduated” from the 50th- percentile FMR program. This means that the concentration of HCV tenants is below what is required to be eligible for a 50th-percentile FMR. Under current 50th percentile regulations, the Grand Rapids-Wyoming, MI HMFA will be evaluated annually and may return to the program in the future.
Of the remaining 14 50th-percentile FMR areas that were not eligible for review in FY 2013, only one area, Bergen-Passaic, NJ HMFA will complete three years in the program next year and be reviewed for the FY 2014 FMRs. Lastly, the Richmond, VA HUD Metro FMR Area, which graduated from the 50th percentile program in FY 2012, re-enters the program in FY 2013 and will next be evaluated in FY 2016.
In summary, there will be 20 50th-percentile FMR areas in FY 2013. These areas are indicated by an asterisk in Schedule B, where all FMRs are listed by state.
This section provides a brief overview of how the FY 2013 FMRs are computed. For complete information on how FMR areas are determined, and on how each area's FMRs are derived, see the online documentation at
The proposed FY 2013 FMRs are based on current OMB metropolitan area definitions and standards that were first used in the FY 2006 FMRs. OMB changes to the metropolitan area definitions through December 2009 are incorporated. There have been no area definition changes published by OMB since the publication of the FY 2012 FMRs; therefore, the FY 2013 area definitions are the same as those used in FY 2012. HUD anticipates that OMB will publish new area definitions in 2013. Depending on the timing of this release, HUD will incorporate the new area definitions into either the FY 2014 or FY 2015 proposed FMRs.
The U.S. Census Bureau released standard tabulations of 5-year ACS data collected between 2006 through 2010 in December of 2011. For FY 2013 FMRs, HUD used the 2006–2010 5-year ACS data to update the base rents set in FY 2012 using the 2005–2009 5-year ACS data.
FMRs are historically based on gross rents for recent movers (those who have moved into their current residence in the last 24 months). However, due to the way the 5-year ACS data are constructed, HUD developed a new methodology for calculating recent-mover FMRs in FY 2012. As in FY 2012, all areas are assigned as a base rent the estimated two-bedroom standard quality 5-year gross rent from the ACS.
No local area rent surveys were conducted in 2011 or 2012 by HUD or PHAs, but the surveys conducted in 2010, for Williamsport, PA and Pike County, PA continue to be applied.
Following the assignment of the standard quality two-bedroom rent described above, HUD applies a recent mover factor to these rents. In preparation for calculating the Proposed FY 2013 FMRs, the Department reviewed the methodology for calculating the recent mover factor from the FY 2012 process and made several improvements. The primary change is that HUD no longer compares the standard quality gross rent to the recent mover gross rent to determine if the two statistics are significantly different.
In general, HUD uses the 1 year ACS based two-bedroom statistically reliable recent mover gross rent estimate from the smallest geographic area encompassing the FMR area to calculate the recent mover factor. Some areas' recent mover factors will be calculated using data collected just for the FMR area. Other areas' recent mover factor will be based on larger geographic areas. For metropolitan areas that are sub-areas of larger metropolitan areas, the order is subarea, metropolitan area, state metropolitan area, and state. Metropolitan areas that are not divided follow a similar path from FMR area, to state metropolitan areas, to state. In nonmetropolitan areas the recent mover factor is based on the FMR area, the state nonmetropolitan area, or if that is not available, on the basis of the whole state. The recent mover factor is calculated as the percentage change between the 5-year 2006–2010 two-bedroom gross rent and the 1 year 2010 recent mover two-bedroom gross rent for the recent mover factor area. Recent mover factors are not allowed to lower the standard quality base rent; therefore, if the 5-year standard quality rent is larger than the comparable 1 year recent mover rent, the recent mover factor is set to 1. The process for calculating each area's recent mover factor is detailed in the FY 2013 Proposed FMR documentation system available at:
This process produces an “as of” 2010 recent mover two-bedroom base gross rent for the FMR area.
The ACS based “as of” 2010 rent is updated through the end of 2011 using the annual change in CPI from 2010 to 2011. As in previous years, HUD uses Local CPI data for FMR areas with at least 75 percent of their population within Class A metropolitan areas covered by local CPI data. HUD uses Census region CPI data for FMR areas in Class B and C size metropolitan areas and nonmetropolitan areas without local CPI update factors. Following the application of the appropriate CPI update factor, HUD converts the “as of” 2011 CPI adjusted rents to “as of” December 2011 rents by multiplying each rent by the national December 2011 CPI divided by the national annual 2011 CPI value. HUD does this in order to apply an exact amount of the annual trend factor to place the FY 2013 FMRs as of the mid-point of the 2013 fiscal year.
On March 9, 2011 (76 FR 12985), HUD published a notice requesting public comment regarding the manner in which it calculates the trend factor used in determining FMR estimates to meet the statutory requirement that FMRs be “trended so the rentals will be current for the year to which they apply.” HUD's notice provided several proposed alternatives to the current trend factor and requested comments on the alternatives as well as suggestions of other ideas. In its publication of the proposed FY 2012 FMRs on August 19, 2011, (76 FR 52058) HUD discussed these comments and announced that a new trend factor would be used in the FY 2013 FMRs. HUD calculates the trend factor as the annualized change in median gross rents as measured between the 1 year 2005 ACS and the 1 year 2010 ACS. The median gross rent in 2005 was $728 and $855 in 2010. The overall change is 17.45% and the annualized change is 3.27%. Over a 15-month time period, the effective trend factor is 4.1%
HUD calculates the primary FMR estimates for two-bedroom units. This is generally the most common sized rental unit and, therefore, the most reliable to survey and analyze. Formerly, after each Decennial Census, HUD calculated rent relationships between two-bedroom units and other unit sizes and used them to set FMRs for other units. HUD did this because it is much easier to update two-bedroom estimates and to use pre-established cost relationships with other bedroom sizes than it is to develop independent FMR estimates for each bedroom size. For FY 2013 Proposed FMRs, HUD has updated the bedroom ratio adjustment factors using 2006–2010 5-year ACS data using similar methodology to what was implemented when calculating bedroom ratios using 2000 Census data to establish rent ratios.
HUD again made adjustments to the bedroom ratios using 2006–2010 5-year ACS data for areas with local bedroom-size intervals above or below what are considered reasonable ranges, or where sample sizes are inadequate to accurately measure bedroom rent differentials. Experience has shown that highly unusual bedroom ratios typically reflect inadequate sample sizes or peculiar local circumstances that HUD would not want to utilize in setting FMRs (e.g., luxury efficiency apartments that rent for more than typical one-bedroom units). HUD established bedroom interval ranges based on an analysis of the range of such intervals for all areas with large enough samples to permit accurate bedroom ratio determinations. These ranges are: efficiency FMRs are constrained to fall between 0.59 and 0.81 of the two-bedroom FMR; one-bedroom FMRs must be between 0.74 and 0.84 of the two-bedroom FMR; three-bedroom FMRs must be between 1.15 and 1.36 of the two-bedroom FMR; and four-bedroom FMRs must be between 1.24 and 1.64 of the two-bedroom FMR. HUD adjusts bedroom rents for a given FMR area if the differentials between bedroom-size FMRs were inconsistent with normally observed patterns (i.e., efficiency rents are not allowed to be higher than one-bedroom rents and four-bedroom rents are not allowed to be lower than three-bedroom rents).
HUD further adjusts the rents for three-bedroom and larger units to reflect HUD's policy to set higher rents for these units than would result from using unadjusted market rents. This adjustment is intended to increase the likelihood that the largest families, who have the most difficulty in leasing units, will be successful in finding eligible program units. The adjustment adds bonuses of 8.7 percent to the unadjusted three-bedroom FMR estimates and adds 7.7 percent to the unadjusted four-bedroom FMR estimates. The FMRs for unit sizes larger than four bedrooms are calculated by adding 15 percent to the
For low-population, nonmetropolitan counties with small or statistically insignificant 2006–2010 5-year ACS recent-mover rents, HUD uses state non-metropolitan data to determine bedroom ratios for each bedroom size. HUD made this adjustment to protect against unrealistically high or low FMRs due to insufficient sample sizes.
The FMR used to establish payment standard amounts for the rental of manufactured home spaces in the HCV program is 40 percent of the FMR for a two-bedroom unit. HUD will consider modification of the manufactured home space FMRs where public comments present statistically valid survey data showing the 40th-percentile manufactured home space rent (including the cost of utilities) for the entire FMR area.
All approved exceptions to these rents that were in effect in FY 2012 were updated to FY 2013 using the same data used to estimate the HCV program FMRs. If the result of this computation was higher than 40 percent of the new two-bedroom rent, the exception remains and is listed in Schedule D. The FMR area definitions used for the rental of manufactured home spaces are the same as the area definitions used for the other FMRs.
Public housing authorities in the Dallas, TX HMFA continue to be the only PHAs managing their voucher programs using Small Area Fair Market Rents (SAFMRs). These FMRs are listed in Schedule B addendum. The department anticipates announcing additional PHAs authorized to operate using SAFMRs in the notice of Final FY 2013 FMRs.
SAFMRs are calculated using a rent ratio determined by dividing the median gross rent across all bedrooms for the small area (a ZIP code) by the similar median gross rent for the metropolitan area of the ZIP code. This rent ratio is multiplied by the current two- bedroom rent for the entire metropolitan area containing the small area to generate the current year two-bedroom rent for the small area. In small areas where the median gross rent is not statistically reliable, HUD substitutes the median gross rent for the county containing the ZIP code in the numerator of the rent ratio calculation. For proposed FY 2013 SAFMRs, HUD has implemented two changes to the rent ratio calculation methodology. First, HUD has updated the 2005–2009 5-year ACS based ZIP code median gross rent data with 2006–2010 5-year ZIP Code Tabulation Area (ZCTA) median gross rent data. Next, HUD has expanded the criteria for determining the statistical reliability of the small area rent data in order to ensure that more SAFMRs are based on the data for the small area as opposed to using data from the parent county as a proxy.
HUD seeks public comments on the methodology used to calculate FY 2013 Proposed FMRs and the FMR levels for specific areas. Comments on FMR levels must include sufficient information (including local data and a full description of the rental housing survey methodology used) to justify any proposed changes. Changes may be proposed in all or any one or more of the unit-size categories on the schedule. Recommendations and supporting data must reflect the rent levels that exist within the entire FMR area.
For the supporting data, HUD recommends the use of professionally conducted surveys to test the accuracy of FMRs for areas where there is a sufficient number of Section 8 units to justify the survey cost of approximately $25,000—$35,000. Areas with 2,000 or more program units usually meet this cost criterion, and areas with fewer units may meet it if actual rents for two-bedroom units are significantly different from the FMRs proposed by HUD.
PHAs in nonmetropolitan areas may, in certain circumstances, conduct surveys of groups of counties. HUD must approve all county-grouped surveys in advance. PHAs are cautioned that the resulting FMRs may not be identical for the counties surveyed; each individual FMR area will have a separate FMR based on the relationship of rents in that area to the combined rents in the cluster of FMR areas. In addition, PHAs are advised that counties where FMRs are based on the combined rents in the cluster of FMR areas will not have their FMRs revised unless the grouped survey results show a revised FMR statistically different from the combined rent level.
The survey methodology has recently changed with mail surveys being the preferred method for conducting surveys, because of the lower cost and greater number of survey results. These surveys, however, take almost twice as long to conduct and random digit dialing surveys may be conducted as well. The methodology for both types of surveys and the survey instruments is posted on the HUD USER Web site, at the bottom of the FMR page:
Other survey methodologies are acceptable in providing data to support comments if the survey methodology can provide statistically reliable, unbiased estimates of the gross rent. Survey samples should preferably be randomly drawn from a complete list of rental units for the FMR area. If this is not feasible, the selected sample must be drawn to be statistically representative of the entire rental housing stock of the FMR area. Surveys must include units at all rent levels and be representative by structure type (including single-family, duplex, and other small rental properties), age of housing unit, and geographic location. The 2006–2010 5-year ACS data should be used as a means of verifying if a sample is representative of the FMR area's rental housing stock.
Most surveys cover only one- and two-bedroom units, which has statistical advantages. If the survey is statistically acceptable, HUD will estimate FMRs for other bedroom sizes using ratios based on the 2006–2010 5-year ACS data. A PHA or contractor that cannot obtain the recommended number of sample responses after reasonable efforts should consult with HUD before abandoning its survey; in such situations, HUD may find it appropriate to relax normal sample size requirements.
HUD will consider increasing manufactured home space FMRs where public comment demonstrates that 40 percent of the two-bedroom FMR is not adequate. In order to be accepted as a basis for revising the manufactured home space FMRs, comments must include a pad rental survey of the mobile home parks in the area, identify the utilities included in each park's rental fee, and provide a copy of the applicable public housing authority's utility schedule.
As stated earlier in this Notice, HUD is required to use the most recent data available when calculating FMRs. Therefore, in order to re-evaluate an area's FMR, HUD requires more current
This Notice involves the establishment of fair market rent schedules, which do not constitute a development decision affecting the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this Notice is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Accordingly, the Fair Market Rent Schedules, which will not be codified in 24 CFR part 888, are proposed to be amended as shown in the Appendix to this notice:
Metropolitan area CBSAs (referred to as MSAs) may be modified to allow for subarea FMRs within MSAs based on the boundaries of old FMR areas (OFAs) within the boundaries of new MSAs. (OFAs are the FMR areas defined for the FY 2005 FMRs. Collectively they include 1999-definition MSAs/Primary Metropolitan Statistical Areas (PMSAs), metro counties deleted from 1999-definition MSAs/PMSAs by HUD for FMR purposes, and counties and county parts outside of 1999-definition MSAs/PMSAs referred to as nonmetropolitan counties.) Subareas of MSAs are assigned their own FMRs when the subarea 2000 Census Base Rent differs by at least 5 percent from (i.e., is at most 95 percent or at least 105 percent of) the MSA 2000 Census Base Rent, or when the 2000 Census Median Family Income for the subarea differs by at least 5 percent from the MSA 2000 Census Median Family Income. MSA subareas, and the remaining portions of MSAs after subareas have been determined, are referred to as HMFAs to distinguish these areas from OMB's official definition of MSAs.
The specific counties and New England towns and cities within each state in MSAs and HMFAs are listed in Schedule B.
Schedule B shows the FMRs for zero-bedroom through four-bedroom units. The Schedule B addendum shows Small Area FMRs for PHAs operating using Small Area FMRs within the Dallas, TX HMFA. The FMRs for unit sizes larger than four bedrooms are calculated by adding 15 percent to the four-bedroom FMR for each extra bedroom. For example, the FMR for a five-bedroom unit is 1.15 times the four-bedroom FMR, and the FMR for a six-bedroom unit is 1.30 times the four-bedroom FMR. FMRs for single-room-occupancy (SRO) units are 0.75 times the zero-bedroom FMR.
a. The FMR areas in Schedule B are listed alphabetically by metropolitan FMR area and by nonmetropolitan county within each state. The exception FMRs for manufactured home spaces in Schedule D are listed alphabetically by state.
b. The constituent counties (and New England towns and cities) included in each metropolitan FMR area are listed immediately following the listings of the FMR dollar amounts. All constituent parts of a metropolitan FMR area that are in more than one state can be identified by consulting the listings for each applicable state.
c. Two nonmetropolitan counties are listed alphabetically on each line of the non-metropolitan county listings.
d. The New England towns and cities included in a nonmetropolitan county are listed immediately following the county name.
Fish and Wildlife Service, Interior.
Notice of availability; request for comment/information.
We, the Fish and Wildlife Service (Service), announce the availability of an incidental take permit (ITP) application and Habitat Conservation Plan (HCP). Wayne Cimato (applicant) requests an ITP under the Endangered Species Act of 1973, as amended (Act). The applicant anticipates taking about 1 acre of Florida scrub-jay habitat in Charlotte County, Florida, for the construction of a single-family residence and associated
Written comments on the ITP application and HCP should be sent to the South Florida Ecological Services Office (see
You may request documents by email, U.S. mail, or fax (see below). These documents are also available for public inspection by appointment during normal business hours at the office below. Send your comments or requests by any one of the following methods.
Ms. Trish Adams, HCP Coordinator, South Florida Ecological Services Office, Vero Beach, Florida (see
Wayne Cimato (applicant) anticipates taking 1 acre of habitat used for breeding, feeding, and sheltering by the Florida scrub-jay (
We received an application for an incidental take permit (ITP), along with a proposed habitat conservation plan (HCP). The applicant requests a 2-year permit under section 10(a)(1)(B) of the Act (87 Stat. 884; 16 U.S.C. 1531
The applicant proposes to mitigate for the loss of 1 acre of occupied scrub-jay habitat by on-site establishment of a 2-acre conservation easement to be managed by Charlotte Harbor Environmental Center, along with a fee of $6,000.00 for perpetual maintenance of the donated land, within 180 days of permit issuance or before the commencement of clearing and construction activities, whichever is sooner.
The Service has made a preliminary determination that the applicant's project, including the proposed mitigation and minimization measures, will individually and cumulatively have a minor or negligible effect on the species covered in the HCP. Therefore, issuance of the ITP is a “low-effect” action and qualifies as a categorical exclusion under the National Environmental Policy Act (NEPA) (40 CFR 1506.6), as provided by the Department of the Interior Manual (516 DM 2 Appendix 1 and 516 DM 6 Appendix 1), and as defined in our Habitat Conservation Planning Handbook (November 1996).
We base our determination that issuance of the ITP qualifies as a low-effect action on the following three criteria: (1) Implementation of the project would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) implementation of the project would result in minor or negligible effects on other environmental values or resources; and (3) impacts of the plan, considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not result, over time, in cumulative effects to environmental values or resources that would be considered significant. As more fully explained in our environmental action statement and associated Low-Effect Screening Form, the applicant's proposed project qualifies as a “low-effect” project. This preliminary determination may be revised based on our review of public comments that we receive in response to this notice.
The Service will evaluate the HCP and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. The Service will also evaluate whether issuance of the section 10(a)(1)(B) ITP would comply with section 7 of the Act by conducting an intra-Service section 7 consultation. The results of this consultation, in combination with the above findings, will be used in the final analysis to determine whether or not to issue the ITP. If it is determined that the requirements of the Act are met, the ITP will be issued for the incidental take of the Florida scrub-jay.
If you wish to submit comments or information, you may do so by any one of several methods. Please reference permit number TE74559A–0 in such comments. You may mail comments to the Service's South Florida Ecological Services Office (see
Before including your address, phone number, email address, or other personal identifying information in your comments, 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.
This notice is provided pursuant to Section 10 of the Act and NEPA regulations (40 CFR 1506.6).
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
The U.S. Fish and Wildlife Service (Service) hereby gives notice of
The FEA, issued on May 18, 2010, evaluates the environmental impacts that would result from the Commission approving the applications for license surrender. The Penobscot River Restoration Project (PRRP) seeks to restore diadromous fish to the Penobscot River and key tributaries in accordance with the Lower Penobscot River Basin Comprehensive Settlement Agreement (Agreement), to which the U.S. Department of the Interior (Department) is a signatory. The Service intends to approve mechanisms to assist with funding the PRRP because it will provide substantial benefits for diadromous fish. Based on the Service's independent evaluation, adoption of the FEA would meet the Department's and the Service's National Environmental Policy Act (NEPA) procedures and guidelines, as the Service is funding the precise actions, the effects of which have already been analyzed by the Commission. As part of that process, the Service is recirculating the FEA as its final Environmental Assessment in accordance with the Service's adoption requirements.
We will accept comments received or postmarked on or before August 20, 2012. Comments submitted electronically using the Federal eRulemaking Portal (see
We request that you send comments only by the methods described above. We will post all information received on
Steve Shepard, Maine Field Office, by mail at 17 Godfrey Drive, Suite #2, Orono Maine 04473; by telephone at (207) 866–3344, extension 116; or by electronic mail at
The Service hereby gives notice of its intent to adopt the Commission's existing FEA for the Application for Surrender of License of the Veazie, Great Works, and Howland Projects (FERC Project Nos. 2403, 2312 and 2721, respectively) (Project). The FEA, issued on May 18, 2010, evaluates the environmental impacts that would result from the Commission approving the applications for license surrender for the Veazie, Great Works, and Howlands hydroelectric projects. The FEA makes it clear that surrender of the licenses would lead to removal of Veazie and Great Works Dams and construction of a nature-like fish bypass around the Howland Dam, which are key elements of the PRRP. The dams are located in the towns of Veazie, Old Town, and Howland in Penobscot County, Maine.
The PRRP seeks to restore diadromous fish to the Penobscot River and key tributaries in accordance with the Lower Penobscot River Basin Comprehensive Settlement Agreement (Agreement), to which the Department is a signatory. The Service intends to approve grants, cooperative agreements, memoranda of agreement or understanding, or other administrative mechanisms to assist with funding the PRRP because the project will provide substantial benefits for diadromous fish.
The May 2010 FEA assessed the environmental effects of five alternatives of the PRRP: (1) No action; (2) the proposed action (the removal of the Veazie and Great Works Dams and the construction of a nature-like fish bypass at the Howland Dam); (3) the removal of all three dams; (4) the removal of the Veazie and Great Works Dams and surrender in place at the Howland Project; and (5) the surrender in place of all three projects. The Service commented on the draft FEA and is satisfied that all of its comments have been adequately addressed by the Commission in the FEA. Based on its review, the Service finds that the FEA would satisfy the Department's and the Service's NEPA compliance requirements with respect to the Service's decision to provide funds for the PRRP. Therefore, by this notice, the Service is recirculating the FEA for written public comment to meet its NEPA (40 CFR 1506.3 and 1506.6) requirements for the approval of future administrative mechanisms or funds in support of the PRRP. The Service encourages interested persons to review the FEA and submit written comments.
Those who do not have access to the Web site or cannot visit our office can request copies by telephone at (207) 866–3344 or by letter to the Maine Field Office (see
The dams are located in the towns of Veazie, Old Town, and Howland in Penobscot County, Maine. They are currently operated as hydroelectric facilities under a Federal license with the Commission.
The Commission's FEA was based on license applications from the Penobscot River Restoration Trust, a not-for-profit organization founded to implement the PRRP on behalf of the parties involved in the Agreement. The Service is a party to the Agreement, along with other State and Federal agencies, nongovernmental organizations, and PPL Corporation, which owned the hydroelectric facilities and three dams at the time of the Agreement. The specific purpose of the PRRP is to restore diadromous fish to the Penobscot River. Diadromous fish are species that use both marine and freshwater habitats during their life cycles. The species can be anadromous like Atlantic salmon, which are born and grow in freshwater, migrate out to sea to finish growing, and migrate back to freshwater, and for many species their natal river, to spawn. The species can also be catadromous like American eel, which are born and grow at sea, migrate to freshwater rivers, ponds, and lakes where they finish growing, and
The FEA evaluates five alternatives, including the no action alternative. Details of these alternatives and their environmental effects are described in the FEA. The Service intends to approve grants, cooperative agreements, memoranda of agreement or understanding, or other administrative mechanisms to assist with funding the PRRP. Those future Federal actions trigger the need for compliance with NEPA. Based on its review, the Service finds that the FEA adequately addresses appropriate alternatives and their environmental effects and accurately describes the future actions that the Service may fund. The Service finds, therefore, that the FEA meets the Department's and the Service's NEPA procedures and guidelines and is appropriate for adoption.
The Service invites the public to comment on the Service adopting the FEA in order to comply with NEPA in association with future decisions to fund the PRRP (see
If you submit a comment via
Comments and materials we receive, as well as documents associated with the notice, will be available for public inspection on
Based on the information summarized above, the Service intends to adopt the Commission's FEA to fully comply with the regulations for implementing NEPA for Federal funding decisions the Service may make in the future. After the close of the comment period, the Service anticipates issuing a Finding of No Significant Impact (FONSI) in conjunction with adopting the FEA. The FONSI will be available on the Internet at
This notice is provided pursuant to NEPA regulations (40 CFR 1506.3 and 1506.6).
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species, marine mammals, or both. With some exceptions, the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) prohibit activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before September 4, 2012. We must receive requests for marine mammal permit public hearings, in writing, at the address shown in the
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358–2280; or email
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import two male cheetahs (
The applicant requests a permit to import one male captive-born Amur tiger (
The applicant requests a permit to export the sport-hunted trophy of one male Addax
The applicant requests a permit to export the sport-hunted trophy of one male Addax
The applicant requests a permit to take up to 10 southern sea otters (
The applicant requests renewal of their permit to import biological samples collected from wild, captive-held, and/or captive-born specimens of endangered animal species from worldwide locations, for the purpose of scientific research. No animals may be intentionally killed for the purpose of collecting such samples. Any invasively collected samples can only be collected by trained personnel. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the addax (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess addax (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests to renew the permit for to take polar bears (
On July 27, 2012, (77 FR 44264), we published a notice receipt of permit applications for that contained incorrect information for the applicant. The correct information should read as follows:
The applicant requests renewal of the permit to authorize import, export, and acquisition of dead specimens, including whole carcasses, heads, and temporal bones from marine otter (
Concurrent with publishing this notice in the
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and the National Historic Preservation Act of 1966 (NHPA), as amended, the Bureau of Land Management (BLM) has prepared a Final Environmental Impact Statement (EIS) and a Programmatic Agreement (PA), which is included as an Appendix to the EIS, for the Southern Nevada Water Authority's (SNWA) Clark, Lincoln, and White Pine Counties Groundwater Development Project (SNWA Project), and by this notice is announcing the availability of the Final EIS.
The Department of the Interior will not issue a final decision on the proposal for a minimum of 60 days after the date that the Environmental Protection Agency publishes its Notice of Availability of the Final EIS in the
The Final EIS will be mailed to those parties who participated in the process. Written requests for a copy of the Final EIS or the PA for the SNWA Project may be submitted to the BLM at the address below or by any of the following methods:
•
• Download the document from the BLM's Web site at
•
•
Review copies are available in the following locations:
Penny Woods, Project Manager, telephone: 775–861–6466; address: 1340 Financial Blvd., Reno, NV 89502; email;
The BLM served as the lead agency for the preparation of this EIS. The BLM worked with 16 cooperating agencies including: Federal—Fish and Wildlife Service, Bureau of Reclamation, Bureau of Indian Affairs, National Park Service, Forest Service, Army Corps of Engineers, U.S. Air Force-Nellis Air Force Base; State—Nevada Department of Wildlife, State of Utah; Counties and County Organizations—Central Nevada Regional Water Authority, White Pine, Lincoln, and Clark counties (NV); and Juab, Millard, and Tooele counties (UT).
The Final EIS describes and analyzes the SNWA's rights-of-way (ROWs) on public land for the SNWA Project. Project components include a system of groundwater conveyance and treatment facilities in southeastern Nevada which would transport groundwater from Spring, Delamar, Dry Lake, and Cave valleys pursuant to water rights permits issued by the Nevada State Engineer (NSE) and from Snake Valley pursuant to water right applications that are currently pending before the NSE. The Final EIS addresses the ROW request as submitted by the SNWA; alternative alignments of pipelines, power lines, and other ancillary facilities; alternative pumping locations/scenarios; and a no action alternative. The Final EIS also analyzes, conceptually, future facilities such as placement of water wells, collector pipelines and groundwater pumping.
A PA has been prepared pursuant to the regulations of the Advisory Council on Historic Preservation (ACHP) to comply with section 106 of the NHPA and the implementing regulations at 36 CFR part 800. The executed PA was signed by the BLM, the Nevada State Historic Preservation Officer (SHPO), the ACHP and the SNWA, and negotiated with other consulting parties through consultation. The terms of the executed PA set forth the conditions for satisfying the SNWA's obligations for the proposed project under section 106 of the NHPA.
The exact amount of groundwater available to the proposed project is dependent upon future action by the NSE. The EIS and ROW application are not for the purpose of supporting the permitting of water rights or authorizing of such rights. The NSE is solely responsible for granting water rights.
Between the Draft EIS and the Final EIS one alternative—Alternative F—was developed in response to public comments, input from the applicant, and the agency's need to analyze a broader range of alternatives. Alternatives considered in the Final EIS include:
Proposed Action—Distributed Pumping at 1989 Application Quantities: This alternative requires ROWs for a main pipeline of up to 96 inches in diameter, lateral pipelines, and associated ancillary facilities. This alternative considers conveyance of the full quantity of SNWA's water rights applications in Spring, Snake, Cave, Dry Lake, and Delamar valleys. Under this alternative, groundwater wells would be distributed across five hydrologic basins. Under the proposed action, the SNWA could be granted a ROW that would permit the development and operation of a system of regional water facilities that could be used to convey up to 217,655 acre-feet per year (afy) of groundwater, including 184,655 afy of the SNWA groundwater rights (if permitted by the NSE) with the remaining capacity reserved for future use by Lincoln County.
The proposed ROW project would include approximately 306 miles of a buried water pipeline between 16 and 84 inches in diameter; approximately 323 miles of 230 kilovolt (kV), 69 kV and 25 kV overhead power lines; two primary electrical substations, five secondary substations, three pressure-reducing facilities; five pumping stations; six regulating tanks; a 40-million-gallon buried storage reservoir; a 165 million-gallon-per-day water treatment facility; and associated access roads.
Alternative A—Distributed Pumping at Reduced Quantities. This alternative requires ROWs for a main pipeline of up to 96 inches in diameter, lateral pipelines, and associated ancillary facilities. This alternative considers conveyance of less than the full quantity of SNWA's applications in Spring, Cave, Dry Lake, and Delamar valleys and an
Alternative B—Points of Diversion Pumping at Application Quantities. This alternative requires ROWs for a main pipeline of up to 96 inches in diameter, lateral pipelines, and associated ancillary facilities. Alternative B would develop and convey the same groundwater volume as the Proposed Action. However, groundwater would be developed within a 1-mile radius of the 34 application Points of Diversion locations.
Alternative C—Intermittent Pumping at Reduced Quantities. This alternative requires ROWs for a main pipeline of up to 96 inches in diameter, lateral pipelines, and associated ancillary facilities. The development pattern for this alternative would be the same as Alternative A. However, a lower overall volume of groundwater would be pumped over time as compared to any of the other alternatives.
Alternative D—Distributed Pumping at Reduced Quantities in Lincoln County Only. The pipeline and groundwater development for this alternative is limited to Clark and Lincoln counties; no facilities would be constructed in White Pine County. This alternative requires ROWs for a main pipeline of up to 78 inches in diameter, lateral pipelines, and associated ancillary facilities. Groundwater development considerations would be the same as that analyzed under Alternative A without the Snake Valley and the White-Pine-County portion of Spring Valley groundwater amounts.
Alternative E—Distributed Pumping at Reduced Quantities—Spring, Cave, Dry Lake, and Delamar valleys. The pipeline and groundwater development for this alternative is limited to four groundwater development basins (Spring, Cave, Dry Lake, and Delamar valleys), with no facilities extending into Snake Valley, and no groundwater development occurring there. This alternative requires ROWs for a main pipeline of up to 78 inches in diameter, lateral pipelines, and associated ancillary facilities.
Alternative F—Distributed Pumping at Perennial Yield Quantities—Spring, Cave, Dry Lake, and Delamar valleys. Alternative F would not include groundwater development in Snake Valley. This alternative includes development of the unappropriated groundwater resources in Spring, Cave, Dry Lake, and Delamar valleys. This alternative considers the perennial yield amount for each of these basins, less existing committed groundwater rights, and up to the maximum of the SNWA groundwater application quantity.
No-Action Alternative—Pursuant to the Southern Nevada Public Lands Management Act of 1998 and the Lincoln County Conservation, Recreation, and Development Act of 2004, the BLM must grant the SNWA's ROW requests in Clark County and Lincoln County. However, the No-Action Alternative in this Final EIS describes baseline conditions without construction of the SNWA Project, as a benchmark for the comparison of the Proposed Action and alternatives.
Route Alternatives. Alignment Options 1 through 4 were also analyzed in the Final EIS. They include local-scale option locations for certain facilities (pipelines, power lines): Alignment Option 1—Humboldt-Toiyabe Power Line Alignment—In this option, the Humboldt-Toiyabe 230-kV power line would parallel an existing transmission line over the Schell Creek Range between the Gonder Substation and Spring Valley.
Alignment Option 2—North Lake Valley Pipeline and Power Line Alignments—This option would change the location of the mainline pipeline and associated power line in North Lake Valley.
Alignment Option 3—Muleshoe Substation and Power Line Alignment—This option depends on the implementation of at least one major regional power line project in the SNWA Project area.
Alignment Option 4—North Delamar Valley Pipeline Alignment—This option would be the same as the Proposed Action, except that the pipeline and power line in northern Delamar Valley would follow the same alignment along Poleline Road.
Agency Preferred Alternative. In selecting the preferred alternative, the BLM considered all information that has been received consistent with its environmental review, ROW permitting responsibilities, and the NSE's jurisdiction over the SNWA's groundwater applications. The preferred alternative is the main conveyance pipeline alignment contained in Alternative F as described in the Final EIS which does not include development in Snake Valley and would be limited to water volumes approved by the NSE. In addition, Alignment Option 1—Humboldt-Toiyabe Power Line Alignment would be selected in combination with the main conveyance pipeline alignment described in Alternative F. Mitigation and monitoring identified in Chapter 3 and other sections of the Final EIS may be included as part of future decisions.
Alternative F was not included in the Draft EIS but was developed in response to public and applicant comments and the agency's desire to provide a more comprehensive analysis of the range of alternatives. Alternative E (no development in Snake Valley) was in the Draft EIS and received numerous public and agency comments noting the probable reduction in impacts in close proximity to Great Basin National Park.
In addition, the environmental benefits include the construction of conveyance facilities within a designated BLM utility corridor and/or adjacent to existing BLM-granted ROWs to limit the fragmentation of habitat and natural features and the transportation of future-developed water from Spring, Delamar, Cave and Dry Lake valleys in the most direct route that is technologically advantageous for the transport, delivery, and operation of the system. Alignment Option 1—the
To understand the impacts of the Preferred Alternative, one should consider the impacts of Alternatives E and F and understand that the preferred Alternative's impacts would be between the two. The amount of groundwater development analyzed in Alternative F is greater than that allocated by the NSE. The amount of groundwater development analyzed in Alternative E is closer to that allocated by the NSE. Both alternatives analyze the same main conveyance pipeline alignment and differ only in the assessment of the possible groundwater to be developed.
This is the initial EIS in a tiered NEPA evaluation process. As described in Council on Environmental Quality Regulations, a tiered NEPA process can be used for Proposed Actions such as the SNWA Project when specific locations have not been defined for all phases. Under NEPA, tiering involves a two-fold approach wherein general analyses are first covered in a broad EIS and more detailed issues are tiered (referenced) to that broader EIS. Once the broader EIS is completed, subsequent narrower statements or environmental assessments incorporate the general discussions from the broader EIS by reference, allowing the subsequent document to concentrate on the issues specific to the project or project phase. The NEPA regulations encourage Federal agencies to tier environmental documents for multi-stage projects to eliminate repetitive discussions of the same issues and to focus on the issues that are ready for decision at each level of environmental review.
The BLM conducted scoping in two periods: April 8 to August 1, 2005 and July 19 to October 18, 2006. The BLM received a total of 1,210 substantive letters during scoping. Key issues identified by individuals, groups and governmental entities include water supply and use, competing or conflicting land uses, and cumulative impacts and connected actions.
On June 10, 2011 the BLM published a Notice of Availability of the Draft EIS in the
The majority of the concerns that were raised by Federal and state agencies, local and tribal governments, interested groups, and the public on the Draft EIS were focused on impacts to cultural resources, air quality, water resources, water dependent biological resources, human resources both within the area of development and in Las Vegas, wildlife, monitoring/mitigation of the project and cumulative impacts from the long-term development of the resources.
40 CFR 1506.6, 40 CFR 1506.10.
Bureau of Reclamation, Interior.
Notice of availability.
The Bureau of Reclamation, as the National Environmental Policy Act Federal lead agency, and the California Department of Parks and Recreation (CDPR), as the California Environmental Quality Act State lead agency, have made available for public review and comment the San Luis Reservoir State Recreation Area Resource Management Plan/General Plan (RMP/GP) Draft Environmental Impact Statement/Revised Draft Environmental Impact Report (EIS/EIR). The Draft RMP/GP EIS/EIR describes and presents the environmental effects of the No Action/No Project Alternative and three Action Alternatives. A public meeting will be held to receive comments from individuals and organizations on the Draft RMP/GP EIS/EIR.
Submit written comments on the Draft RMP/GP EIS/EIR on or before
A public meeting has been scheduled to receive oral or written comments regarding environmental effects. The meeting will be held from 6:30 p.m. to 9:00 p.m. on August 23, 2012, in Gustine, California.
Send written comments on the Draft RMP/GP EIS/EIR to Mr. Dave Woolley, Bureau of Reclamation, 1243 N Street, Fresno, CA 93721, or by email to
The public meeting will be held at the San Luis Reservoir State Recreation Area Headquarters, 31426 Gonzaga Road, Gustine, CA 95322.
Copies of the Draft RMP/GP EIS/EIR may be requested from Mr. Dave Woolley, by writing to: Bureau of Reclamation, 1243 N Street, Fresno, CA 93721; by calling 559–487–5049 (TDD 559–487–5933); or by emailing
Mr. Dave Woolley, Bureau of Reclamation, at 559–487–5049 (TTY 1–800–735–2929) or
The Draft RMP/GP EIS/EIR analyzes the direct, indirect, and cumulative effects to the physical, biological, and socioeconomic environment that may result from various resource management alternatives contained in the subject document.
The purposes of the RMP/GP EIS/EIR include: (1) Identifying the current and most appropriate future uses of land and water resources within the RMP/GP Area; (2) identifying the long-term resource programs and implementation guidelines to manage and develop recreation, natural, and cultural resources; and (3) developing strategies and approaches to protect and preserve the natural, recreational, aesthetic, and cultural resources.
The RMP/GP was initially released with a Draft EIR in 2005 for compliance with California Environmental Quality Act. The RMP/GP is being reissued with a joint Draft EIS/Revised Draft EIR for the purposes of both National Environmental Policy Act and California Environmental Quality Act compliance.
The RMP/GP area consists of over 27,000 acres owned by the Bureau of Reclamation (Reclamation) and includes the water surfaces of San Luis Reservoir, O'Neill Forebay, Los Banos Creek Reservoir, and adjacent recreation lands
The RMP/GP area is owned by Reclamation and was built as part of the water storage and delivery system of reservoirs, aqueducts, power plants, and pumping stations operated under the California State Water Project and Central Valley Project. Construction began on San Luis Reservoir in 1963 and was completed in 1967 with planned joint-use by the State Water Project and the Central Valley Project. The California Department of Parks and Recreation was given the responsibility to plan, design, construct, maintain, and operate the recreation areas surrounding the reservoirs.
The new plan will: (1) Enhance natural resources and recreational opportunities without interrupting reservoir operations; (2) provide recreational opportunities to meet the demands of a growing population with diverse interests; (3) ensure diversity of recreational opportunities and quality of the recreational experience; (4) protect natural, cultural, and recreational sources while providing resource education opportunities and stewardship; and (5) provide updated management direction for establishing a new management agreement with the State of California.
The Draft EIS/Revised Draft EIR outlines the formulation and evaluation of alternatives designed to address these issues through a representation of the varied interests at the Plan Area. The No Action/No Project Alternative (Alternative 1) would result in the continuation of current management practices. Action Alternative 2 (Limited New Access and Development) emphasizes resource protection and limited new development. Action Alternative 3 (Moderate New Access and Development) balances natural and cultural resource protection and recreation opportunities. Action Alternative 4 (Maximum New Access and Development) provides the most overall recreation facility development.
The Draft RMP/GP EIS/EIR has been developed within the authorities provided by Congress through the Reclamation Recreation Management Act of 1992 (Pub. L. 102–575, Title 28, 16 U.S.C. 460L) and other applicable agency and Department of the Interior policies.
Copies of the Draft RMP/GP EIS/EIR are available for public review at the following locations:
• Bureau of Reclamation, Mid-Pacific Region, Regional Library, 2800 Cottage Way, Sacramento, CA 95825.
• Bureau of Reclamation, South-Central California Area Office, 1243 N Street, Fresno, CA 93721.
• Four Rivers Sector Office, 31426 Gonzaga Road, Gustine, CA 95322
• Los Banos Library, 1312 South 7th Street, Los Banos, CA 93635.
• California Department of Parks and Recreation, Northern Service Center, One Capitol Mall, Suite 500, Sacramento, CA 95814.
• Bureau of Reclamation, Denver Office Library, Building 67, Room 167, Denver Federal Center, 6th and Kipling, Denver, CO 80225.
• Natural Resources Library, U.S. Department of the Interior, 1849 C Street NW., Main Interior Building, Washington, DC 20240–0001.
A brief presentation, including a project overview, will open the public meeting. This will be followed by an open house during which individual concerns and questions will be addressed through interaction with the project team.
If special assistance is required at the public meeting, please contact Mr. Dave Woolley at 559–487–5049, (TTY 1–800–735–2929), or by emailing
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.
Drug Enforcement Administration (DEA), Department of Justice.
Notice with request for comments.
This notice proposes initial year 2013 aggregate production quotas for controlled substances in schedules I and II of the Controlled Substances Act (CSA) and assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine.
Electronic comments must be submitted and written comments must be postmarked on or before September 4, 2012. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after midnight Eastern Time on the last day of the comment period.
To ensure proper handling of comments, please reference “Docket No. DEA–365” on all electronic and written correspondence. DEA encourages that all comments be submitted electronically through
John W. Partridge, Chief, Liaison and Policy Section, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152, Telephone: (202) 307–4654.
Please note that all comments received are considered part of the public record and made available for public inspection online at
If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.
Personal identifying information and confidential business information identified and located as set forth above will be redacted, and the comment, in redacted form, will be posted online and placed in the DEA's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the
Section 306 of the CSA (21 U.S.C. 826) requires the Attorney General to establish aggregate production quotas for each basic class of controlled substance listed in schedules I and II and for ephedrine, pseudoephedrine, and phenylpropanolamine. This responsibility has been delegated to the Administrator of the DEA by 28 CFR 0.100. The Administrator, in turn, has redelegated this function to the Deputy Administrator, pursuant to 28 CFR 0.104.
The proposed year 2013 aggregate production quotas represent those quantities of schedule I and II controlled substances, and the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine, to be manufactured in the United States in 2013 to provide for the estimated medical, scientific, research, and industrial needs of the United States, lawful export requirements, and the establishment and maintenance of reserve stocks. These quotas include imports of ephedrine, pseudoephedrine, and phenylpropanolamine but do not include imports of controlled substances for use in industrial processes.
In determining the proposed 2013 aggregate production quotas and assessment of annual needs, DEA has taken into account the criteria that DEA is required to consider in accordance with 21 U.S.C. 826(a), 21 CFR 1303.11 (aggregate production quotas for controlled substances), and 21 CFR 1315.11 (assessment of annual needs for ephedrine, pseudoephedrine, and phenylpropanolamine). DEA proposes the aggregate production quotas and assessment of annual needs for 2013 by considering (1) total net disposal of the class or chemical by all manufacturers and chemical importers during the current and two preceding years; (2) trends in the national rate of net disposal of the class or chemical; (3) total actual (or estimated) inventories of the class or chemical and of all substances manufactured from the class or chemical, and trends in inventory accumulation; (4) projected demand for such class or chemical as indicated by procurement and chemical import quotas requested pursuant to 21 CFR 1303.12, 1315.32, and 1315.34; and (5) other factors affecting the medical, scientific, research, and industrial needs in the United States, lawful export requirements, and reserve stocks, as the Deputy Administrator finds relevant. Other factors DEA considered in calculating the aggregate production quotas, but not the assessment of annual needs, include product development requirements of both bulk and finished dosage form manufacturers, and other pertinent information. In determining the proposed 2013 assessment of annual needs, DEA used the calculation methodology previously described in the 2010 and 2011 assessment of annual needs (74 FR 60294 and 75 FR 79407, respectively).
DEA also specifically considered that inventory allowances granted to individual manufacturers may not always result in the availability of sufficient quantities to maintain an adequate reserve stock pursuant to 21 U.S.C. 826(a), as intended. See 21 CFR 1303.24. This would be concerning if a natural disaster or other unforeseen event resulted in substantial disruption to the amount of controlled substances available to provide for legitimate public need. As such, DEA proposes to include in all schedule II aggregate production quotas, and certain schedule I aggregate production quotas (gamma-hydroxybutyric acid and tetrahydrocannabinols), an additional 25% of the estimated medical, scientific, and research needs as part of the amount necessary to ensure the establishment and maintenance of reserve stocks. The resulting established aggregate production quota will reflect these included amounts. This action will not affect the ability of manufacturers to maintain inventory allowances as specified by regulation. DEA expects that maintaining this reserve in certain established aggregate production quotas will mitigate adverse public affects if an unforeseen event resulted in substantial disruption to the amount of controlled substances available to provide for legitimate public need, as determined by DEA. DEA does not anticipate utilizing the reserve in the absence of these circumstances.
The Deputy Administrator, therefore, proposes that the year 2013 aggregate production quotas and assessment of annual needs for the following schedule I and II controlled substances and for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine, expressed in grams of anhydrous acid or base, be established as follows:
The Deputy Administrator further proposes that aggregate production quotas for all other schedule I and II controlled substances included in 21 CFR 1308.11 and 1308.12 be established at zero. Pursuant to 21 CFR 1303.13 and 21 CFR 1315.13, upon consideration of the relevant factors, the Deputy Administrator may adjust the 2013 aggregate production quotas and assessment of annual needs as needed.
Pursuant to 21 CFR 1303.11 and 21 CFR 1315.11, any interested person may submit written comments on or objections to these proposed determinations. Based on comments received in response to this Notice, the Deputy Administrator may hold a public hearing on one or more issues raised. In the event the Deputy Administrator decides in his sole discretion to hold such a hearing, the Deputy Administrator will publish a notice of any such hearing in the
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Prohibited Transaction Class Exemption for Cross-Trades of Securities by Index and Model-Driven Funds,” to the Office of Management and Budget (OMB) for review and approval for continued use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.).
Submit comments on or before September 4, 2012.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the
Submit comments about this request to the Office of Information and
Contact Michel Smyth by telephone at 202–693–4129 (this is not a toll-free number) or by email at
44 U.S.C. 3507(a)(1)(D).
The Prohibited Transaction Class Exemption for Cross-Trades of Securities by Index and Model-Driven Funds permits cross-trades of securities between index and model-driven funds managed by investment managers and among such funds and certain large accounts to which such investment managers act as a trading adviser in connection with a specific portfolio-restructuring program. To ensure managers have complied with exemption requirements, the DOL has included in the exemption certain recordkeeping and disclosure obligations designed to safeguard plan assets by periodically providing information to plan fiduciaries, who generally must be independent about the cross-trading program.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Employee Retirement Income Security Act Summary Annual Report Requirement,” to the Office of Management and Budget (OMB) for review and approval for continued use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Submit comments on or before September 4, 2012.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site,
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503, Telephone: 202–395–6929/Fax: 202–395–6881 (these are not toll-free numbers), email:
Michel Smyth by telephone at 202–693–4129 (this is not a toll-free number) or by email at
44 U.S.C. 3507(a)(1)(D).
Employee Retirement Income Security Act of 1974 section 104(b)(3), 29 U.S.C. 1024(b)(3), and regulations codified at 29 CFR 2520.104b–10 require employee benefit plans to furnish a summary of the plan's annual report to participants and specified beneficiaries for purposes of disclosure of basic financial information.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Mine Safety and Health Administration, Labor.
Request for public comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to assure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Mine Safety and Health Administration is soliciting comments concerning the extension of the information collection for 30 CFR 44.9, 44.10, and 44.11. OMB last approved this information collection request on January 8, 2010. The package expires on January 31, 2013.
All comments must be postmarked or received by midnight Eastern Time on October 2, 2012.
Comments concerning the information collection requirements of this notice must be clearly identified with “OMB 1219–0065” and sent to the Mine Safety and Health Administration (MSHA). Comments may be sent by any of the methods listed below.
•
•
•
Greg Moxness, Chief, Economic Analysis Division, Office of Standards, Regulations, and Variances, MSHA, at
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 811(c), provides that a mine operator or a representative of miners may petition the Secretary of Labor (Secretary) to modify the application of a mandatory safety standard. A petition for modification may be granted if the Secretary determines (1) that an alternative method of achieving the results of the standard exists and that it will guarantee, at all times, no less than the same measure of protection for the miners affected as that afforded by the standard, or (2) that the application of the standard will result in a diminution of safety to the miners affected.
Upon receipt of a petition, MSHA publishes a notice in the
The Mine Safety and Health Administration (MSHA) is soliciting comments concerning the proposed extension of the information collection related to this safety standard on petitions for modification of mandatory safety standards. MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
• Evaluate the accuracy of the MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Address the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submissions of responses) to minimize the burden of the collection of information on those who are to respond.
The public may examine publicly available documents, including the public comment version of the supporting statement, at MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, VA 22209–3939. OMB clearance requests are available on MSHA's Web site at
The information contained in an approved petition for modification is used by MSHA during inspections to determine compliance with the relevant safety standard. MSHA has updated the data with respect to the number of respondents and responses, as well as the total burden hours and total annual cost burden supporting this information collection extension request.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
44 U.S.C. 3506(c)(2)(A).
Copyright Royalty Board, Library of Congress.
Notice requesting comments.
The Copyright Royalty Judges are soliciting comments on a motion of Phase I claimants for partial distribution in connection with the 2010 satellite royalty funds. The Judges are also requesting comments as to the existence of Phase I and Phase II controversies with respect to the distribution of 2010 satellite royalty funds.
Comments are due on or before September 4, 2012.
Comments may be sent electronically to
Lakeshia Keys, Program Specialist, by telephone at (202) 707–7658 or email at
On June 20, 2012, representatives of the Phase I claimant categories (the “Phase I Claimants”)
The Judges also seek comment on the existence and extent of any controversies to the 2010 satellite royalty funds at Phase I or Phase II with respect to those funds that would remain if the motion for partial distribution is granted.
The Motion of the Phase I Claimants for Partial Distribution is posted on the Copyright Royalty Board Web site at
Copyright Royalty Board, Library of Congress.
Notice requesting comments.
The Copyright Royalty Judges are soliciting comments on a motion of Phase I claimants for partial distribution in connection with the 2010 cable royalty funds. The Judges are also requesting comments as to the existence of Phase I and Phase II controversies with respect to the distribution of 2010 cable royalty funds.
Comments are due on or before September 4, 2012.
Comments may be sent electronically to
Lakeshia Keys, Program Specialist, by telephone at (202) 707–7658 or email at
Each year cable systems must submit royalty payments to the Register of Copyrights as required by the statutory license set forth in section 111 of the Copyright Act for the retransmission to cable subscribers of over-the-air television and radio broadcast signals.
On June 20, 2012, representatives of the Phase I claimant categories (the “Phase I Parties”)
The Judges also seek comment on the existence and extent of any controversies to the 2010 cable royalty funds at Phase I or Phase II with respect to those funds that would remain if the partial distribution is granted.
The Motion of Phase I Claimants for Partial Distribution is posted on the Copyright Royalty Board Web site at
Merit Systems Protection Board.
Notice.
In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board (MSPB) is submitting a request for a three-year extension of an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. This ICR describes the nature of the information collection and its estimated burden and cost.
Submit written comments on or before September 4, 2012.
Submit your comments concerning this ICR by one of the following methods:
Dr. Dee Ann Batten by phone at (202) 254–4495; by email at
Under PRA (44 U.S.C. 3501–3520), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. The MSPB intends to ask for a three-year renewal of its Generic Clearance Request for Voluntary Customer Surveys, OMB Control No. 3124–0012. On April 30, 2012, MSPB sought public comments on this ICR pursuant to 5 CFR 1320.8(d).
Executive Order 12862, “Setting Customer Service Standards,” mandates agencies to identify their customers and survey them to determine the kind and quality of services they want and their level of satisfaction with existing services. The MSPB's customers and stakeholders include persons who file appeals with MSPB for agency actions taken against them (appellants), their representatives, and representatives of the agency which took the action.
These surveys will be used to evaluate how well we are serving our customers in terms of their perceptions of timeliness, fairness, accessibility, and sensitivity to their situation in deciding their appeals. We also have used customer surveys to determine the usefulness of the reports issued by the Office of Policy & Evaluation. As a result of these surveys we have established baseline performance measures for both our appeals process and merit systems review responsibilities.
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 19, 2012, the National Science Foundation published a notice in the
Nuclear Regulatory Commission.
Week of August 6, 2012.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
a.
This meeting will be webcast live at the Web address—
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301–415–6200, TDD: 301–415–2100, or by email at
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an email to
Postal Service
Notice of modification to existing system of records.
The United States Postal Service® is proposing to modify a Customer Privacy Act System of Records. These modifications reflect the needs of two new Postal Service programs to assist customers with package and mail tracking. Also, there is an update to the current system manager's title.
The revision will become effective without further notice on September 4, 2012 unless comments received on or before that date result in a contrary determination.
Comments may be mailed or delivered to the Records Office, United States Postal Service, 475 L'Enfant Plaza SW., Room 9431, Washington, DC 20260–2201. Copies of all written comments will be available at this address for public inspection and photocopying between 8 a.m. and 4 p.m., Monday through Friday.
Jane Eyre, Manager, Records Office, 202–268–2608.
This notice is in accordance with the Privacy Act requirement that agencies publish their amended systems of records in the
In its continuing effort to improve its value-added services, the Postal Service will launch two new programs in 2012. The first will assist business mailers with tracking mail pieces sent to their customers. The tracking of these mail pieces will utilize the 11-digit ZIP Code and/or an Intelligent Mail Barcode. The second will strengthen the digital relationship with consumers and aid all customers with package tracking and visibility within the Postal Service network and through other carrier networks.
Additionally, in June, 2012, the Postal Service made additional management and organizational changes.
The Postal Service is enhancing our customers' visibility of their mailings. The first program will automate the process to provide business mailers with mail piece induction information. The second program will integrate tracking information from multiple carriers.
Lastly, in regards to the system manager title update, there is a continuing need to reflect changes in the identity or title of responsible officials.
The Postal Service is modifying one system of records listed below. Pursuant to 5 U.S.C. 552a(e)(11), interested persons are invited to submit written data, views, or arguments on this proposal. A report of the proposed modifications has been sent to Congress and to the Office of Management and Budget for their evaluation. The Postal Service does not expect this amended notice to have any adverse effect on individual privacy rights. The affected system is as follows:
Mail Management and Tracking Activity.
Accordingly, for the reasons stated, the Postal Service proposes changes in the existing system of records as follows:
Mail Management and Tracking Activity.
1.
5.
7.
3. To provide customers with information about the status of mailings within the USPS network or other carrier networks.
4. To provide business mailers with information about the status of mailings within the USPS mail processing network.
By customer name, customer ID(s), logon ID, mailing address(es), 11-digit ZIP Code, or any Intelligent Mail Barcode.
5. Mailpiece images will be retained up to 3 days.
7. USPS and other carrier network tracking records are retained for up to 30 days for mail and up to 90 days for packages and special services.
President, Digital Solutions, United States Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260.
Chief Information Officer, United States Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260.
Chief Marketing/Sales Officer and Executive Vice President, United States Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of July 2012. A copy of each application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
Diane L. Titus at (202) 551–6810, SEC, Division of Investment Management, Office of Investment Company Regulation, 100 F Street NE., Washington, DC 20549–8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Rule 2102 (Hours of Business) to extend the expiration of the pilot rule.
The text of the proposed rule change is available on the Exchange's Internet Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend ISE Rule 2102 to extend the expiration of the pilot rule. Initial amendments to ISE Rule 2102 to allow the Exchange to pause trading in an individual stock when the primary listing market for such stock issues a trading pause were approved by the Securities and Exchange Commission (“Commission”) on June 10, 2010 on a pilot basis to end on December 10, 2010.
On September 10, 2010, ISE Rule 2102 was amended to expand the pilot rule to apply to the Russell 1000® Index and other specified exchange traded products.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the pilot program to continue uninterrupted, thereby avoiding the investor confusion that could result from a temporary interruption in the pilot program. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an Email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Rule 2128 (Clearly Erroneous Trades) to extend the expiration of the pilot rule.
The text of the proposed rule change is available on the Exchange's Internet Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend ISE Rule 2128 (Clearly Erroneous Trades) to extend the expiration of the pilot rule. Amendments to ISE Rule 2128 to provide for uniform treatment of certain clearly erroneous execution reviews and transactions that occur before a trading pause is in effect on the Exchange were approved by the Securities and Exchange Commission (“Commission”) on September 10, 2010 on a pilot basis to end on April 11, 2011.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the pilot program to continue uninterrupted, thereby avoiding the investor confusion that could result from a temporary interruption in the pilot program. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send 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”),
CME proposes to make clarifying changes to CME Rule 819 and certain Chapter 8F Rules. The text of the proposed rule change is available at the CME's Web site at
In its filing with the Commission, CME included statements concerning the purpose and basis for the proposed rule changes and discussed any comments it received on the proposed rule changes. The text of these statements and comments may be examined at the places specified in Item III below. CME has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of these statements.
CME proposes to make certain clarifying changes to CME Rule 819, 8F002, 8F004 and 8F008. The proposed changes do not affect CME's credit default swap clearing (“CDS”) offering. The proposed effective date for the revisions is August 1, 2012.
In order to clarify that the lien on collateral held by the CME clearing house includes both property of clearing members and customer performance bond, CME proposes to change language in both CME Rule 819 and Rule 8F008. The clarifying language is intended to align CME Rules 819 and 8F008 with current CME Rule 8H008, which governs CDS clearing and states, in pertinent part: “Each CDS Clearing Member hereby grants to the Clearing House a first priority and unencumbered lien to secure all obligations of such CDS Clearing Member to the Clearing House against any property and collateral deposited with the Clearing House by the CDS Clearing Member.”
In addition, CME proposes to revise CME Rule 8F004 in order to: (a) Clarify that the minimum capital requirements for firms that clear credit default swaps and/or interest rate swaps are not governed by Rule 8F004 but rather by current Rules 8G004 and 8H004; and (b)
Finally, CME proposes a technical amendment to the definition of “OTC Derivatives” in CME Rule 8F002 to reflect that section 2(h) of the Commodity Exchange Act (“CEA”) no longer provides exemptive relief.
CME notes that it has already certified the proposed changes that are the subject of this filing to its primary regulator, the Commodity Futures Trading Commission (“CFTC”), in CME Submission 12–241.
CME believes the proposed changes are consistent with the requirements of the Exchange Act including Section 17A in that they make clarifying changes that will facilitate the prompt and accurate clearance and settlement of securities transactions and derivatives agreements, contracts and transactions and will help assure the safeguarding of securities and funds which are in the custody or control of the clearing agency and, in general, help to protect investors and the public interest.
CME further notes that the proposed changes are limited to its business as a derivatives clearing organization under the CEA and therefore do not significantly affect any securities clearing operations of the clearing agency or any related rights or obligations of the clearing agency or persons using such service. CME notes that the policies of the CEA with respect to clearing are comparable to a number of the policies underlying the Exchange Act, such as promoting market transparency for over-the-counter derivatives markets, promoting the prompt and accurate clearance of transactions and protecting investors and the public interest.
CME does not believe that the proposed rule change will have any impact, or impose any burden, on competition.
CME has not solicited, and does not intend to solicit, comments regarding this proposed rule change. CME has not received any unsolicited written comments from interested parties.
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:
• Electronic comments may be submitted by using the Commission's Internet comment form (
• Paper comments should be sent 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–CME–2012–31 and should be submitted on or before August 24, 2012.
Section 19(b) of the Act
In its filing, CME requested that the Commission approve these proposed rule changes prior to the thirtieth day after the date of publication of the notice of the filing. CME has articulated three reasons for so granting approval. First, CME notes that the products covered by this filing, and the CME's operations as a derivatives clearing organization for such products, are regulated by the CFTC under the CEA. Second, the proposed rule changes affect the futures and swaps that CME clears and therefore relate solely to its futures and swaps clearing activities and do not significantly relate to the CME's functions as a clearing agency for security-based swaps. Third, the clarifying changes will help promote the prompt and accurate clearance of transactions and therefore are designed to protect investors and the public interest.
The Commission finds good cause for granting approval of the proposed rule changes prior to the thirtieth day after publication of the notice of filing because: (i) The proposed rule changes do not significantly affect any of CME's securities clearing operations or any related rights or obligations of CME or persons using such service; (ii) CME has indicated that not providing accelerated approval would have a significant impact on its business as a designated clearing organization; and (iii) the activity relating to CME's non-security clearing operations for which CME is seeking approval is subject to regulation by another federal regulator.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq proposes to modify the port fees charged to members and non-members for ports used to enter orders into Nasdaq systems, in connection with the use of other trading telecommunication protocols.
The text of the proposed rule change is below. Proposed new language is in italics.
(a)–(f) No change.
(g) Other Port Fees.
The following port fees shall apply in connection with the use of other trading telecommunication protocols:
• $500 per month for each port pair, other than Multicast ITCH® data feed pairs, for which the fee is $1000 per month
• An additional $200 per month for each port used for entering orders or quotes over the Internet.
• An additional $600 per month for each port used for market data delivery over the Internet.
(h) No change.
In its filing with the Commission, Nasdaq 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. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is proposing to amend Nasdaq Rule 7015 (Access Services) to modify the monthly fee it charges for ports used to enter orders in Nasdaq trading systems, such as the Nasdaq Market Center and the Nasdaq Options Market [sic], in connection with the use of other trading telecommunication protocols.
Specifically, the fee change is to establish an optional new $2,500 per month port fee for those customers that elect to take the hardware-based TotalView-ITCH equities depth feed that uses field-programmable gate array (“FPGA”) technology,
Currently, in accordance with Nasdaq Rule 7015(g), customers receiving TotalView-ITCH pay $1,000 per multicast ITCH data feed port pair for the software-version of the depth feed. This optional new port fee enables a customer to opt to receive both the software- and hardware-based versions for a total of $2,500, meaning that for an additional $1,500 per month a customer can receive the hardware-based version. This new pricing option is available to all members and non-members and is in response to industry demand, as well as due to changes in the technology to distribute and consume market data.
Competition for depth data is considerable and the Exchange believes that this proposal clearly evidences such competition. The Exchange is offering a new port fee in order to keep pace with changes in the industry and evolving customer needs as new technologies emerge and products continue to develop and change. It is entirely optional and is geared towards attracting new customers, as well as retaining existing customers.
The proposed port fee is based on pricing conventions and distinctions that exist in Nasdaq's current fee schedule, and the fee schedules of other exchanges. These distinctions for the proposed port fee for hardware-based delivery of Nasdaq Depth data are based on a careful analysis of empirical data and the application of time-tested pricing principles already accepted by the Commission and discussed in greater depth in the Statutory Basis section below. Also, the costs associated with the port fee using the hardware-based delivery system for Nasdaq Depth data are higher than a software-based solution due to increased operating expenditures associated with creating, shipping, installing and maintaining the new equipment and codebase. Because it uses a distinct technology, the overall costs of creation and maintenance of the hardware-based version of TotalView-ITCH are higher than the software-based version.
The proposed port fee for the hardware-based delivery of Nasdaq Depth data is completely optional. Accordingly, Nasdaq is offering his new port fee for the hardware-based delivery of Nasdaq Depth data so that customers may elect to receive Nasdaq direct data content in a predictable manner throughout the trading day.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
On July 21, 2010, President Barack Obama signed into law H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), which amended Section 19 of the Act. Among other things, Section 916 of the Dodd-Frank Act amended paragraph (A) of Section 19(b)(3) of the Act by inserting the phrase “on any person, whether or not the person is a member of the self-regulatory organization” after “due, fee or other charge imposed by the self-regulatory organization.” As a result, all SRO rule proposals establishing or changing dues, fees, or other charges are immediately effective upon filing regardless of whether such dues, fees, or other charges are imposed on members of the SRO, non-members, or both. Section 916 further amended paragraph (C) of Section 19(b)(3) of the Exchange Act to read, in pertinent part, “At any time within the 60-day period beginning on the date of filing of such a proposed rule change in accordance with the provisions of paragraph (1) [of Section 19(b)], the Commission summarily may temporarily suspend the change in the rules of the self-regulatory organization made thereby, 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 this title. If the Commission takes such action, the Commission shall institute proceedings under paragraph (2)(B) [of Section 19(b)] to determine whether the proposed rule should be approved or disapproved.”
Nasdaq believes that these amendments to Section 19 of the Act reflect Congress' intent to allow the Commission to rely upon the forces of competition to ensure that fees for market data are reasonable and equitably allocated. Although Section 19(b) had formerly authorized immediate effectiveness for a “due, fee or other charge imposed by the self-regulatory organization,” the Commission adopted a policy and subsequently a rule stipulating that fees for data and other products available to persons that are not members of the self-regulatory organization must be approved by the Commission after first being published for comment. At the time, the Commission supported the adoption of the policy and the rule by pointing out that unlike members, whose representation in self-regulatory organization governance was mandated by the Act, non-members should be given the opportunity to comment on fees before being required to pay them, and that the Commission should specifically approve all such fees. Nasdaq believes that the amendment to Section 19 reflects Congress' conclusion that the evolution of self-regulatory organization governance and competitive market structure have rendered the Commission's prior policy on non-member fees obsolete. Specifically, many exchanges have evolved from member-owned not-for-profit corporations into for-profit investor-owned corporations (or subsidiaries of investor-owned corporations). Accordingly, exchanges no longer have narrow incentives to manage their affairs for the exclusive benefit of their members, but rather have incentives to maximize the appeal of their products to all customers, whether members or non-members, so as to broaden distribution and grow revenues. Moreover, we believe that the change also reflects an endorsement of the Commission's determinations that reliance on competitive markets is an appropriate means to ensure equitable and reasonable prices. Simply put, the change reflects a presumption that all fee changes should be permitted to take effect immediately, since the level of all fees are constrained by competitive forces.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
For the reasons stated above, Nasdaq believes that the proposed fee is fair and equitable, and not unreasonably discriminatory. As described above, the proposed fee is based on pricing conventions and distinctions that exist in Nasdaq's current fee schedule, and the fee schedules of other exchanges. These distinctions (
As described in greater detail below, if Nasdaq has calculated improperly and the market deems the proposed fees to be unfair, inequitable, or unreasonably discriminatory, firms can diminish or discontinue the use of their data because the proposed fee is entirely optional to all parties. Firms are not required to purchase Nasdaq Depth data or to utilize any specific pricing alternative if they do choose to purchase Nasdaq Depth data. Nasdaq is not required to make depth data available or to offer specific pricing alternatives for potential purchases. Nasdaq can discontinue offering a pricing alternative (as it has in the past) and firms can discontinue their use at any time and for any reason (as they often do), including due to their assessment of the reasonableness of fees charged. Nasdaq continues to create new pricing policies aimed at increasing fairness and equitable allocation of fees among users, and Nasdaq believes this is another useful step in that direction.
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Notwithstanding its determination that the Commission may rely upon competition to establish fair and equitably allocated fees for market data, the
There is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. 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 the prospect of a taking order seeing and reacting to a posted order on a particular platform, the posting of the order would accomplish little. Without trade executions, exchange data products cannot exist. 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 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 to 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 customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the broker-dealer chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the broker-dealer will choose not to buy it. Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to that broker-dealer decreases, for two reasons. First, the product will contain less information, because executions of the broker-dealer's orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that broker-dealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the broker-dealer is directing orders will become correspondingly more valuable.
Thus, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
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 the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the 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 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 platform 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
The market for market data products is 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.
Broker-dealers currently have numerous alternative venues for their order flow, including ten 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. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
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 Nasdaq, NYSE, NYSE MKT, NYSEArca, and BATS.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple broker-dealers' production of proprietary data products. The potential sources of proprietary products are virtually limitless.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing proprietary book data on the Internet. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace.
Market data vendors provide another form of price discipline for proprietary data products because they control the primary means of access to 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. Retail broker-dealers, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. Nasdaq and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully.
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, TracECN, BATS Trading and Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While broker-dealers have previously published their proprietary data individually, Regulation NMS encourages market data vendors and broker-dealers to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg, and Thomson Reuters.
The court in
Competition among platforms has driven Nasdaq continually to improve its platform data offerings and to cater to customers' data needs. For example, Nasdaq has developed and maintained multiple delivery mechanisms (IP, multi-cast, and compression) that enable customers to receive data in the form and manner they prefer and at the lowest cost to them. Nasdaq offers front end applications such as its “Bookviewer” to help customers utilize data. Nasdaq has created new products like TotalView Aggregate to complement TotalView-ITCH and Level 2/NQDS, because offering data in multiple formatting allows Nasdaq to better fit customer needs. Nasdaq offers data via multiple extranet providers, thereby helping to reduce network and total cost for its data products. Nasdaq has developed an online administrative system to provide customers transparency into their data feed requests and streamline data usage reporting. Nasdaq has also expanded its Enterprise License options that reduce the administrative burden and costs to firms that purchase market data.
Despite these enhancements and a dramatic increase in message traffic, Nasdaq's fees for market data have remained flat. In fact, as a percent of total customer costs, Nasdaq data fees have fallen relative to other data usage costs—including bandwidth,
The vigor of competition for depth information is significant and the Exchange believes that this proposal clearly evidences such competition. Nasdaq is offering a new port fee in order to keep pace with changes in the industry and evolving customer needs. It is entirely optional and is geared towards attracting new customers, as well as retaining existing customers.
The Exchange has witnessed competitors creating new products and innovative pricing in this space over the course of the past year. Nasdaq continues to see firms challenge its pricing on the basis of the Exchange's explicit fees being higher than the zero-priced fees from other competitors such as BATS. In all cases, firms make decisions on how much and what types of data to consume on the basis of the total cost of interacting with Nasdaq or other exchanges. Of course, the explicit data fees are but one factor in a total platform analysis. Some competitors have lower transactions fees and higher data fees, and others are vice versa. The market for this depth information is highly competitive and continually evolves as products develop and change.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (“Fee Schedule”). 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,
The Exchange proposes to amend the Fee Schedule, as described below, and implement the fee changes on August 1, 2012.
The Exchange proposes to introduce a new Tier and corresponding credit in the Fee Schedule for ETP Holders, including Market Makers that execute an average daily volume (“ADV”) of “Retail Orders” during the particular month that is 0.40% or more of the U.S. Consolidated ADV (“CADV”).
The Exchange also proposes to specify in the Fee Schedule that an ETP Holder that qualifies for the Retail Order Tier will not be eligible to qualify for the Tape A, Tape B or Tape C Step Up Tier rates or the Tape C Step Up Tier 2 rate because these ETP Holders that qualify for the proposed Retail Order Tier would already receive a higher credit for Retail Orders that provide liquidity on the Exchange.
An ETP Holder would be required to designate certain of its order entry ports at the Exchange as “Retail Order Ports” and attest, in a form and/or manner prescribed by the Exchange, that all orders submitted to the Exchange via such Retail Order Ports are Retail Orders. An ETP Holder would be required to designate its Retail Order Ports, including adding new Retail Order Ports or removing existing Retail Order Ports that would no longer be used to submit Retail Orders, no later than the fifth trading day of the month in which the desired change is to become effective. The proposed Retail Order Tier would be optional for ETP Holders. Accordingly, an ETP Holder that does not opt to identify qualified orders as Retail Orders would choose not to (i) designate any of its ports as Retail Order Ports, (ii) make an attestation to the Exchange, or (iii) maintain the policies and procedures described below.
Additionally, an ETP Holder would be required to have written policies and procedures reasonably designed to assure that it will only designate orders as Retail Orders if all requirements of a Retail Order are met. Such written policies and procedures must require the ETP Holder to (i) exercise due diligence before entering a Retail Order to assure that entry as a Retail Order is in compliance with the requirements specified by the Exchange, and (ii) monitor whether orders entered as Retail Orders meet the applicable requirements. If the ETP Holder represents Retail Orders from another broker-dealer customer, the ETP Holder's supervisory procedures must be reasonably designed to assure that the orders it receives from such broker-dealer customer that it designates as Retail Orders meet the definition of a Retail Order. The ETP Holder must (i) obtain an annual written representation, in a form acceptable to the Exchange, from each broker-dealer customer that sends it orders to be designated as Retail Orders that entry of such orders as Retail Orders will be in compliance with the requirements specified by the Exchange, and (ii) monitor whether its broker-dealer customer's Retail Order flow continues to meet the applicable requirements.
The Exchange further proposes that it may disqualify an ETP Holder from qualifying for the Retail Order Tier if the Exchange determines, in its sole discretion, that an ETP Holder has failed to abide by the requirements proposed herein, including, for example, if an ETP Holder designates orders submitted to the Exchange as Retail Orders but those orders fail to meet any of the requirements of Retail Orders. Tiered or Basic Rates would apply based on the ETP Holder's qualifying levels for an ETP Holder that is disqualified from qualifying for the Retail Order Tier.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”), in general, and furthers the objectives of Section 6(b)(4) of the Act, in particular, because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities and does not unfairly discriminate between customers, issuers, brokers or dealers.
The Exchange believes that the proposed rule change is reasonable, equitable and not unfairly discriminatory because it would encourage ETP Holders to send additional Retail Orders to the Exchange for execution in order to qualify for an incrementally higher credit for such executions that add liquidity on the Exchange. In this regard, the Exchange believes that maintaining or increasing the proportion of Retail Orders in exchange-listed securities that are executed on a registered national securities exchange (rather than relying on certain available off-exchange execution methods) would contribute to investors' confidence in the fairness of their transactions and would benefit all investors by deepening the Exchange's liquidity pool, supporting the quality of price discovery, promoting market transparency and improving investor protection.
The Exchange believes that the rate proposed for the Retail Order Tier credit is reasonable because it is directly related to an ETP Holder's level of Retail Order executions during the month. The Exchange also believes that the proposed rate is reasonable because it is consistent with certain other credits, such as the Investor Tier 2 credit of $0.0032, available to ETP Holders that satisfy certain criteria that is related to the ETP Holder's level of trading activity on the Exchange. In this regard, the Exchange also believes that the proposed Retail Order Tier credit is equitable and not unfairly discriminatory because it would not be the only manner of qualifying for a credit of $0.0032 per share. Additionally, the Exchange believes that the proposed Retail Order Tier credit is equitable and not unfairly discriminatory because it would incentivize ETP Holders to submit Retail Orders to the Exchange and would result in a credit that is reasonably related to an exchange's market quality that is associated with higher volumes.
The Exchange believes that requiring an ETP Holder to submit an ADV of Retail Orders during a month of 0.40% or more of CADV is reasonable, equitable and not unfairly discriminatory because this percentage is within a range that the Exchange
The Exchange believes that excluding an ETP Holder that qualifies for the Retail Order Tier from the Tape A, Tape B and Tape C Step Up Tier rates and the Tape C Step Up Tier 2 rate is reasonable, equitable and not unfairly discriminatory because such orders would already receive a higher credit for such executions that provide liquidity on the Exchange.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send 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 extend the pilot period of recent amendments to Rule 11890, concerning clearly erroneous transactions, so that the pilot will now expire on February 4, 2013.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
The provisions of paragraphs (C), (c)(1), (b)(i), and (b)(ii) of this Rule, as amended on September 10, 2010, shall be in effect during a pilot period set to end on
(a)–(f) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
On September 10, 2010, the Commission approved, for a pilot period to end December 10, 2010, a proposed rule change submitted by the Exchange, together with related rule changes of the BATS Exchange, Inc., NASDAQ OMX BX, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., International Securities Exchange LLC, New York Stock Exchange LLC, NYSE MKT LLC (formerly, NYSE Amex LLC), NYSE Arca, Inc., and National Stock Exchange, Inc., to amend certain of their respective rules to set forth clearer standards and curtail discretion with respect to breaking erroneous trades.
On May 31, 2012, the Commission approved, on a pilot basis, the National Market System Plan to Address Extraordinary Market Volatility.
Accordingly, the Exchange is filing to further extend the pilot program until February 4, 2012.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the pilot program to continue uninterrupted, thereby avoiding the investor confusion that could result from a temporary interruption in the pilot program. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an Email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to extend the pilot period of the trading pause for individual NMS stocks other than rights and warrants, so that the pilot will now expire on February 4, 2013.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
In circumstances in which Nasdaq deems it necessary to protect investors and the public interest, Nasdaq, pursuant to the procedures set forth in paragraph (c):
(1)–(10) No change.
(11) shall, between 9:45 a.m. and 3:35 p.m., or in the case of an early
(A) The price move shall be 10% or more with respect to securities included in the S&P 500® Index, Russell 1000® Index, and a pilot list of Exchange Traded Products;
(B) The price move shall be 30% or more with respect to all NMS stocks not subject to section (a)(11)(A) of this Rule with a price equal to or greater than $1; and
(C) The price move shall be 50% or more with respect to all NMS stocks not subject to section (a)(11)(A) of this Rule with a price less than $1.
The determination that the price of a stock is equal to or greater than $1 under paragraph (a)(11)(B) above or less than $1 under paragraph (a)(11)(C) above shall be based on the closing price on the previous trading day, or, if no closing price exists, the last sale reported to the Consolidated Tape on the previous trading day.
At the end of the trading pause, Nasdaq will re-open the security using the Halt Cross process set forth in Nasdaq Rule 4753. In the event of a significant imbalance at the end of a trading pause, Nasdaq may delay the re-opening of a security.
Nasdaq will issue a notification if it cannot resume trading for a reason other than a significant imbalance.
Price moves under this paragraph will be calculated by changes in each consolidated last-sale price disseminated by a network processor over a five minute rolling period measured continuously. Only regular way in-sequence transactions qualify for use in calculations of price moves. Nasdaq can exclude a transaction price from use if it concludes that the transaction price resulted from an erroneous trade.
If a trading pause is triggered under this paragraph, Nasdaq shall immediately notify the single plan processor responsible for consolidation of information for the security pursuant to Rule 603 of Regulation NMS under the Securities Exchange Act of 1934. If a primary listing market issues an individual stock trading pause, Nasdaq will pause trading in that security until trading has resumed on the primary listing market or notice has been received from the primary listing market that trading may resume. If the primary listing market does not reopen within 10 minutes of notification of a trading pause, Nasdaq may resume trading the security.
The provisions of this paragraph shall be in effect during a pilot set to end on
(b)–(c) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
On June 10, 2010, the Commission granted accelerated approval for a pilot period to end December 10, 2010, for a proposed rule change submitted by the Exchange, together with related rule changes of the BATS Exchange, Inc., NASDAQ OMX BX, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., International Securities Exchange LLC, New York Stock Exchange LLC (“NYSE”), NYSE MKT LLC (“NYSE MKT”) (formerly, NYSE Amex LLC), NYSE Arca, Inc. (“NYSE Arca”), and National Stock Exchange, Inc. (collectively, the “Exchanges”), to pause trading during periods of extraordinary market volatility in S&P 500 stocks.
On May 31, 2012, the Commission approved, on a pilot basis, the National Market System Plan to Address Extraordinary Market Volatility.
The Exchange believes that the pilot program has been successful in reducing the negative impacts of sudden, unanticipated price movements in the securities covered by the pilot. The Exchange also believes that an additional extension of the pilot is warranted so that it may continue to apply the circuit breaker to reduce the negative impacts of sudden, unanticipated price movements until it is replaced by the limit up/limit down mechanism.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the pilot program to continue uninterrupted, thereby avoiding the investor confusion that could result from a temporary interruption in the pilot program. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send 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–NASDAQ–2012–087. 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 Commissions Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to extend the pilot period of the trading pause for individual NMS stocks other than rights and warrants, so that the pilot will now expire on February 4, 2013.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
Rule 3100. Trading Halts on PSX
(a) Authority to Initiate Trading Halts or Pauses
In circumstances in which the Exchange deems it necessary to protect investors and the public interest, and pursuant to the procedures set forth in paragraph (c):
(1)–(3) No change.
(4) If a primary listing market issues an individual stock trading pause in any of the Circuit Breaker Securities, as defined herein, the Exchange will pause trading in that security until trading has resumed on the primary listing market. If, however, trading has not resumed on the primary listing market and ten minutes have passed since the individual stock trading pause message has been received from the responsible single plan processor, the Exchange may resume trading in such stock. The provisions of this paragraph (a)(4) shall be in effect during a pilot set to end on
(b)—(c) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
On June 10, 2010, the Commission granted accelerated approval for a pilot period to end December 10, 2010, of proposed rule changes submitted by the BATS Exchange, Inc., NASDAQ OMX BX, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., International Securities Exchange LLC, The NASDAQ Stock Market LLC (“NASDAQ”), New York Stock Exchange LLC (“NYSE”), NYSE MKT LLC (“NYSE MKT”) (formerly, NYSE Amex LLC), NYSE Arca, Inc. (“NYSE Arca”), and National Stock Exchange, Inc. (collectively, the “Exchanges”), to pause trading during periods of extraordinary market volatility in S&P 500 stocks.
In connection with its resumption of trading of NMS Stocks through the NASDAQ OMX PSX system, the Exchange adopted Rule 3100(a)(4) so that it could participate in the pilot program.
On May 31, 2012, the Commission approved, on a pilot basis, the National Market System Plan to Address Extraordinary Market Volatility.
The Exchange believes that the pilot program has been successful in reducing the negative impacts of sudden, unanticipated price movements in the securities covered by the pilot. The Exchange also believes that an additional extension of the pilot is warranted so that it may continue to apply the circuit breaker to reduce the negative impacts of sudden, unanticipated price movements until it is replaced by the limit up/limit down mechanism.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the pilot program to continue uninterrupted, thereby avoiding the investor confusion that could result from a temporary interruption in the pilot program. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an Email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to extend the pilot period of amendments to Rule 3312, concerning clearly erroneous transactions, so that the pilot will now expire on February 4, 2013.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
The provisions of paragraphs (a)(2)(C), (b), and (c)(1) of this Rule, as amended by SR–Phlx–2010–125, shall be in effect during a pilot period set to end on
(a)–(f) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
On September 10, 2010, the Commission approved, for a pilot period to end December 10, 2010, a proposed rule change submitted by the BATS Exchange, Inc., NASDAQ OMX BX, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., International Securities Exchange LLC, The NASDAQ Stock Market LLC, New York Stock Exchange LLC, NYSE MKT LLC (formerly, NYSE Amex LLC), NYSE Arca, Inc., and National Stock Exchange, Inc. (collectively, the “Exchanges”), to amend certain of their respective rules to set forth clearer standards and curtail discretion with respect to breaking erroneous trades.
On May 31, 2012, the Commission approved, on a pilot basis, the National Market System Plan to Address Extraordinary Market Volatility.
Accordingly, the Exchange is filing to further extend the pilot program until February 4, 2013.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the pilot program to continue uninterrupted, thereby avoiding the investor confusion that could result from a temporary interruption in the pilot program. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send 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.
60 Day Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new and/or currently approved information collection.
Submit comments on or before October 2, 2012.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collections, to Nathaniel Bishop, Program Analyst, Office of Economic Development, Small Business Administration, 409 3rd Street, 6th Floor, Washington, DC 20416.
Nathaniel Bishop, Program Analyst, 202–205–7007
Part of the Government Performance Results Act (GPRA) mandated evaluation of Small Business Administration (SBA) business counseling and training programs and Small Business Administration strategic plan is to examine the impact of counseling and information services on nascent, start- up and in-business clients. The survey will measure effects on counseling and information transfer on the respondent's evaluation of the effectiveness, usefulness, and relevancy of the services provided and whether these services/actions led to the creation of jobs and an increase in business start-ups and gross revenue.
U.S. Small Business Administration.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for the State of Florida (FEMA–4068–DR), dated 07/03/2012.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for the State of Florida, dated 07/03/2012 is hereby amended to establish the incident period for this disaster as beginning 06/23/2012 and continuing through 07/26/2012.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Florida (FEMA–4068–DR), dated 07/09/2012.
Economic Injury (EIDL) Loan Application Deadline Date: 04/09/2013.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Florida, dated 07/09/2012, is hereby amended to establish the incident period for this disaster as beginning 06/23/2012 and continuing through 07/26/2012.
All other information in the original declaration remains unchanged.
In accordance with the Code of Federal Regulations 13—Business Credit and Assistance § 123.512, the following interest rate is effective for Military Reservist Economic Injury Disaster Loans approved on or after July 20, 2012.
Special Inspector General for Afghanistan Reconstruction.
Notice of Proposed Privacy Act Systems of Records.
In accordance with the Privacy Act of 1974, as amended, the Special Inspector General for Afghanistan Reconstruction (SIGAR) gives notice of its intent to create the SIGAR system of records titled, SIGAR–11: Social Media Records, and SIGAR–12: Internal Electronic Collaboration Tools. The Social Media system will assist SIGAR by providing new ways to connect and share information, and solicit and receive feedback freely with the public. The Internal Electronic Collaboration Tools will collect information related to new procedures for the collection of information related to internal electronic collaboration tools which use Microsoft SharePoint, including the SIGAR Intranet and social media tools within the Internet.
Comments must be received no later than September 4, 2012. The new system of records will be effective October 2, 2012 unless SIGAR receives comments that would result in a contrary determination.
Comments should be sent to Kate Gastner, Public Information Manager, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202–3934. Comments will be made available for inspection upon written request. SIGAR will make such comments available for public inspection in the Office of Privacy, Records, and Disclosure, 9th Floor, 1550 Crystal Drive, Arlington, VA 22202, on official business days between the hours of 9 a.m. and 5 p.m. Eastern time. You can make an appointment to inspect comments by telephoning (703) 545–6000. All comments, including attachments and other supporting materials, received are part of the public record and subject to public disclosure. You should submit only information that you wish to make available publicly.
Kate Gastner, Public Information Manager, Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202–3934, (703) 545–5993.
On January 28, 2008, the President signed into law the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181), which created the Special Inspector General for Afghanistan Reconstruction (SIGAR). SIGAR is responsible for coordinating and conducting audits and investigations to promote efficiency and effectiveness of reconstruction programs, and to detect and prevent waste, fraud, and abuse of taxpayers' dollars. Under 5 U.S.C. 301, heads of Executive or military departments may prescribe regulations governing the conduct of its employees and the custody, use, and preservation of the department's records, papers, and property. To facilitate SIGAR's audits, investigations, and other operations, it plans to create the following systems of records:
SIGAR–11 Social Media Records;
SIGAR–12 Internal Electronic Collaboration Tools.
The Report of the a new system of records, as required by 5 U.S.C. 552a(r) of the Privacy Act, has been submitted to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated November 30, 2000.
Sections 552a(e)(4) and (11) of title 5, United States Code, provide that an agency publish a notice of the establishment or revision of a record system which affords the public a 30-day period in which to submit comments. To meet this requirement, descriptions of the two new systems of records are published in their entirety below.
SIGAR is creating the SIGAR Social Media system of records to allow SIGAR to interact with the public using third party or commercial social media applications. While SIGAR may use social media applications to connect with the public in an official capacity, information provided by an individual to register with the third party site is rarely shared with SIGAR. Information collected and stored by the social media applications is subject to the third party privacy policies posted on their Web sites. SIGAR may receive contact information from the third party site for individuals who wish to have further contact with SIGAR for addition communications such as dissemination of information for upcoming events, notification of an emergency or breaking news, or felicitation of feedback about a program.
Information provided by SIGAR on social media sites is also available on SIGARs public Web sites. If SIGAR is requesting feedback from the public through the use of social media site, an alternative SIGAR email address will also be provided so that the public may interact with SIGAR without having to use the social media site. When an individual submits an email to SIGAR, SIGAR will maintain that individual's email, and any other personal information provided in their email, in accordance with applicable records retention policies. All interactions by the public are voluntary.
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.
SIGAR is implementing internal electronic collaboration tools utilizing the Microsoft SharePoint platform. These tools will upgrade SIGAR's intranet, allow users to set up team collaboration workspaces, facilitate sharing of documents, policies and information, and allow limited social networking through the SharePoint “MySites” feature. The Intranet, built on these tools, will include SIGAR policies, procedures, forms, organization charts, news clips, and links to other sites that are helpful to staff members. The intranet will include content regarding program offices, services and support, and projects and activities. The MySites feature will allow SIGAR users to set up a personal profile, identify subject matter areas about which they are knowledgeable, upload pictures, publics notes, tags, content, and messages that are similar to email. Users will be able to manually select “colleagues” which the colleague may approve or deny, and create and join groups. Overall, the internal collaboration tools will provide invaluable dissemination and exchange
All SIGAR users will need to use the internal electronic collaboration tools to perform their official duties, for example, to use the Intranet to obtain business phone numbers of other SIGAR users, to view internal policies, to link to specific SharePoint sites containing SIGAR business information, or use SharePoint sites containing SIGAR business information, or use SharePoint workspaces with other team members. The use of MySites is purely voluntary; those who use MySites will have some control over which other users may see their personal information. However, Intranet sites administrators and other SIGAR staff members with a legitimate need to know the information for official purposes will have full access to view all content, including all personal content posted through MySites. Intranet users will be clearly informed, that if they use MySites, they have no reasonable expectation of privacy in any information they post, as with any other information passing through or stored on SIGAR equipment.
The Internal Electronic Collaboration Tools system of records will contain SIGAR business information, business contact information and photographs, at times personal contact information, and any personal information a user chooses to post within MySites.
Both systems will be effective as proposed at the end of the comment period (the comment period will end 30 days after the publication of this notice in the
Special Inspector General for Afghanistan Reconstruction (SIGAR), 9th Floor, 1550 Crystal Drive, Arlington, VA 22202–4135.
Individuals who contact SIGAR through a social media outlet or other electronic means, including submitting feedback to SIGAR, correspondent with SIGAR as a result of the agency's outreach using social networks, or requesting to be contacted by SIGAR.
This system may contain information pass through a social media site to facilitate interaction with SIGAR such as, but not limited to: First name, last name, username, email address, home or work address, contact information, and phone numbers. It may also include input and feedback from the public, such as comments, emails, videos, and other images, which may include tags, geotags or geographic metadata. Depending on the circumstances of the individual's interaction and the social media site being used, it may include data provided to SIGAR such as date of birth, age, security questions, IP addresses, passwords, financial data, educational, business, or volunteer affiliation.
Presidential Memorandum to the Heads of Executive Departments and Agencies on Transparency and Open Government, January 21, 2009. OMB M–10–06, Open Government Directive, Dec. 8, 2009. OMB M–10–23, Guidance for Agency Use of Third-Party Web sites and Application, June 25, 2010.
The purpose of this system is to allow SIGAR to interact with the public and provide additional transparency to the public through the use of social media. Registration information, username, comments, and suggestions made by the public on third party social networks where SIGAR has an official presence may be collected by third party social networks for registration or use of social media sites. Information and comments provided may be utilized by SIGAR to facilitate interaction with the public, to disseminate information regarding an upcoming event, to notify the public of an emergency or breaking news, or solicit feedback about SIGAR's programs. SIGAR may also respond to information received directly from individuals who provide feedback from social media outreach using alternate methods, such as an email directly to SIGAR.
Disclosures outside SIGAR may be made without the consent of the individual to whom the record pertains under the routine uses listed:
(1) (a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The U.S. Department of Justice (DOJ);
(ii) A court or an adjudicative or other administrative body;
(iii) A party in litigation before a court or an adjudicative or other administrative body; or
(iv) Any SIGAR employee acting in his or her individual capacity if SIGAR or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) SIGAR or any component of SIGAR;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any SIGAR employee acting in his or her official capacity;
(D) Any SIGAR employee acting in his or her individual capacity if SIGAR or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that SIGAR is likely to be affected by the proceeding; and
(ii) SIGAR deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purpose for which the records were compiled.
(2) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if the covered individual is deceased, has made to the office.
(3) To the Executive Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf, or for a purpose compatible for which the records are collected or maintained.
(4) To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, Tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(5) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(6) To Federal, state, territorial, local, Tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance,
(7) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(8) To state and local governments and Tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(9) To an expert, consultant, or contractor (including employees of the contractor) of SIGAR that performs services requiring access to these records on SIGAR's behalf to carry out the purposes of the system.
(10) To appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) SIGAR has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by SIGAR or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made to such agencies, entities and persons who are reasonably necessary to assist in connection with SIGAR's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(11) To the Office of Management and Budget during the coordination and clearance process in connection with
legislative affairs as mandated by OMB Circular A–19.
(12) To the Department of the Treasury to recover debts owed to the United States.
(13) To a consumer reporting agency if the disclosure requirements of the Debt Collection Act, as outlined at 31
U.S.C. 3711(e)(1), have been met.
(14) To the news media and the public, with the approval of the Public Affairs Officer in consultation with Counsel and the Senior Agency Official for Privacy, where there exists a legitimate public interest in the disclosure of the information, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
Paper records are contained in file folders in file cabinets; electronic records are contained in removable drives, computers, email, and electronic databases.
Information may be retrieved by full-text search, names, image, video, email address, user name, or date received.
Paper records are maintained in locked cabinets and desks. Electronic records are controlled through established SIGAR computer center procedures (personnel screening and physical security), and they are password protected. Access is limited to those whose official duties require access to the records.
Records are retained and disposed of in accordance with SIGAR social media proposed records schedule. The disposition is temporary, and records will be destroyed when no longer needed for agency business.
Policy official is the Director for Communications and Congressional Relations, 2530 Crystal Drive, Arlington, VA 22202–3934.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Office of the Special Inspector General for Afghanistan Reconstruction, Headquarters, Privacy Act Officer, 2530 Crystal Drive, Arlington, VA 22202.
The request should include the requestor's complete name, time period for which records are sought, and the office location(s) where the requestor believes the records are located.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Director, Privacy, Records and Disclosure, Office of the Special Inspector General for Afghanistan Reconstruction, Headquarters, 2530 Crystal Drive, Arlington, VA 22202. The request should include the requestor's complete name, time period for which records are sought, and the office location(s) where the requestor believes the records are located.
Same as Notification Procedures above.
Individuals who interact with SIGAR through social media networks or who communicate electronically with SIGAR in response to public outreach.
None.
Internal Electronic Collaboration Tools.
Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR), 9th Floor, 1550 Crystal Drive, Arlington, VA 22202–4135, and in SIGAR field offices in Afghanistan.
SIGAR employees, interns, contractors, consultants and detailees who are given access to the SIGAR network.
SIGAR user name, title, business and personal contact information, and organizational chart and hierarchy information. Those users who elect to participate in MySites will be able to publish additional personal information, such as personal photographs, information about their family status (such as whether they are married or have children), their hobbies, subject matter areas of SIGAR business about which they are knowledgeable, personal activities, notes, messages and other content. Also, the Internal Electronic Collaboration Tools will contain documents in electronic form covered by other SIGAR Privacy Act System of Record Notices.
Public Law 110–181, Section 1229, National Defense Authorization Act for Fiscal Year 2008; 5 U.S.C. App. 3, Inspector General Act of 1978, as amended; 40 U.S.C. 524, Section 202(b), Federal Property and Administrative Services Act of 1949; and 5 U.S.C. Section 301, Government Organization and Employees.
The purpose of the new system of records is to enhance and improve efficiencies in the dissemination and exchange of information within SIGAR and allow colleagues to connect with each other. The internal electronic
The information in this system will be routinely used by SIGAR users to disseminate and share information, collaborate and communicate with each other with the goal of more efficiently conducting SIGAR business. Also, the Internal Electronic Collaboration Tools system will contain documents in electronic form covered by other System of Record Notices, and the routine uses for those System of Record Notices apply. In addition, information in this system may be disclosed in accordance with the blanket routine uses that appear in the SIGAR's Privacy Act Systems of Records Notices, see,
Electronic records, including emails, spreadsheet, PDF files, other documents and content maintained in or through this system are stored on the SIGAR network and other electronic media as needed, such as encrypted hard drives and back-up media. Print-outs of records in the system are stored in file folders, binders, and similar filing methods.
Records are retrieved by name of the employee, intern, consultant, or contractor who has access to the SIGAR network.
Electronic records are controlled through established SIGAR computer center procedures (personnel screening and physical security), and are password protected. Access is limited to those whose official duties require access to the records.
The records will be maintained and dispositioned in accordance with records disposition schedules approved by the National Archives and Records Administration.
Assistant Inspector General for Management and Support, 2530 Crystal Drive, Arlington, VA 22202–3934.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director, Privacy, Records and Disclosure, Office of the Special Inspector General for Afghanistan Reconstruction, Headquarters, 2530 Crystal Drive, Arlington, VA 22202.
The request should include the requester's complete name, time period for which records are sought, and the office location(s) where the requester believes the records are located.
Individuals seeking access to information about themselves contained in this system should address written inquiries to Director, Privacy, Records and Disclosure, Office of Special Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington, VA 22202.
The request should include the requestor's complete name, time period for which records are sought, and the office location(s) where the requestor believes the records are located.
Same as Notification Procedures above.
The Internal Electronic Collaboration Tools system will contain documents in electronic form covered by other System of Record Notices, and the exemptions for those Systems of Record Notices apply.
Department of State.
Notice, correction.
On April 4, 2012, notice was published on page 20476 of the
For further information, including a list of the additional objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Department of Transportation (DOT), Office of the Secretary of Transportation (OST), Office of Small and Disadvantaged Business Utilization (OSDBU).
Notice of Funding Availability; Extension of closing and award dates
This action extends the closing and award dates for a Notice of Funding Availability for the Small Business Transportation Resource Center that was published on July19, 2012, 77 FR 36034. USDOT OSDBU is extending the closing date to allow eligible entities time to adequately submit a proposal.
The submission period for the Notice of Funding Availability published on July 19, 2012 closing on July 31, 2012 is extended until August 13, 2012, 5:00pm Eastern Standard Time. Also, the notice of award for the competed region on or before August 16, 2012 is extended until August 27, 2012.
Proposals must be electronically submitted to OSDBU via email at
For further information concerning this notice, contact Ms. Patricia Martin, U.S. Department of Transportation, Office of Small and Disadvantaged Business Utilization, 1200 New Jersey Avenue SE. W56–462, Washington, DC, 20590. Telephone: 1–800 532 1169. Email:
In the June 19, 2012 document (Notice No. USDOT–OST–OSDBU–SBTRC2012–10; Docket Number: DOT–OST–2009–0092), the Department of Transportation (DOT), Office of the Secretary (OST), Office of Small and Disadvantaged Business Utilization (OSDBU) announces the opportunity for; (1) Business centered community-based organizations; (2) transportation-related trade associations; (3) colleges and universities; (4) community colleges or; (5) chambers of commerce, registered with the Internal Revenue Service as 501 C(6) or 501 C(3) tax-exempt organizations, to compete for participation in OSDBU's Small Business Transportation Resource Center (SBTRC) program in the Central Region.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of meeting of Motor Carrier Safety Advisory Committee (MCSAC).
FMCSA announces that MCSAC will hold a meeting on Monday–Wednesday, August 27–29, 2012. On Monday, August 27, 2012, MCSAC will be provided with briefings on the major motor carrier safety provisions of the recently enacted Moving Ahead for Progress in the 21st Century (MAP–21) [Pub. L. 112–140] surface transportation act and the Agency's Compliance, Safety, and Accountability (CSA) program and assigned a new task concerning CSA. Additionally, the MCSAC will establish a subcommittee on CSA to provide concepts, ideas, and recommendations on the program. On Monday afternoon, the Cross-Border Trucking Pilot Subcommittee will convene for a status update from the Agency. On Tuesday, August 28, 2012, MCSAC will be given a new task to provide ideas and concepts concerning the Regulatory Flexibility Act Section 610 review process and will hear presentations on that topic. Wednesday morning, August 29, 2012, will be reserved for MCSAC's Motorcoach Hours-of-Service (HOS) subcommittee. All three days of the meeting will be open to the public.
Copies of all MCSAC Task Statements and an agenda for the entire meeting will be made available in advance of the meeting at
Ms. Shannon L. Watson, Senior Advisor to the Associate Administrator for Policy, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 385–2395,
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Elizabeth Turner at (617) 494–2068,
Section 4144 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU, Public Law 109–59, 119 Stat. 1144, August 10, 2005) required the Secretary of Transportation to establish the MCSAC. The MCSAC provides advice and recommendations to the FMCSA Administrator on motor carrier safety programs and regulations, and operates in accordance with the Federal Advisory Committee Act (FACA, 5 U.S.C. App 2).
Oral comments from the public will be heard during the last half-hour of the meetings on Monday and Tuesday and during the last 15 minutes of the meeting on Wednesday. Should all public comments be exhausted prior to the end of the specified period, the comment period will close. Members of the public may submit written comments on the topics to be considered during the meeting by Wednesday, May 16, 2012, to Federal Docket Management System (FDMC) Docket Number FMCSA–2006–26367 using any of the following methods:
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Federal Transit Administration, DOT.
Notice of request to rescind Buy America waiver and call for comments.
The Vehicle Production Group LLC (VPG) has asked the Federal Transit Administration (FTA) to rescind the Buy America non-availability waiver it issued on June 21, 2010, for minivans and minivan chassis. According to VPG, it manufactures minivans and minivan chassis that comply with all Buy America requirements under 49 CFR 661.11, including the final assembly requirement that was the subject of the June 2010 waiver. FTA seeks public comment before deciding whether to grant the request. If granted, the waiver would no longer apply; all minivans and minivan chassis purchased with federal funds would have to comply with the final assembly requirement of 49 CFR 661.11.
Comments must be received by September 4, 2012. Late-filed comments will be considered to the extent practicable.
Please submit your comments by one of the following means, identifying your submissions by docket number FTA–2012–0029:
1.
2.
3.
4.
Mary J. Lee, FTA Attorney-Advisor, at (202) 366–0985 or
The purpose of this notice is to seek public comment on whether the Federal Transit Administration (FTA) should rescind the non-availability waiver it issued on June 21, 2010 (75 FR 35123). The waiver exempts minivans and minivan chassis from the Buy America final assembly requirements outlined at 49 CFR part 661, stating that it would remain in effect until such a time as a domestic source became available. If this waiver is rescinded, all minivans or minivan chassis purchased with Federal funds must comply with all Buy America requirements of 49 U.S.C. 5323(j), as implemented at 49 CFR 661.11. Among other things, compliance would require that final assembly for all minivans and minivan chassis take place in the United States.
The Vehicle Production Group LLC (VPG) asked FTA to rescind the minivan waiver. VPG manufactures the MV–1, a minivan assembled by AM General LLC (AM General) at AM General's plant in Mishawaka, Indiana. VPG certifies that the MV–1 complies with Buy America requirements for both domestic content and final assembly. Moreover, VPG maintains that it manufactures its MV–1 minivans in sufficient quantity to meet the current and future demand on FTA-funded projects.
With certain exceptions, FTA's Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 U.S.C. 5323(j)(1). One exception, or waiver, is allowed if “the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality.” 49 U.S.C. 5323(j)(2)(B). FTA issued a non-availability waiver on June 21, 2010, for minivans and minivan chassis after finding that these items were not available from a domestic source that was willing and able to provide U.S.-made minivans and minivan chassis to FTA grantees in compliance with the Buy America rules.
Although FTA is not required to publish a notice in the
The purpose of this notice is to publish VPG's request and to seek comment from all interested parties. Comments will help FTA to understand completely the facts surrounding VPG's request. Therefore, FTA seeks comment from all interested parties regarding a potential rescission of the waiver, the merits of VPG's request, and any effects such an action may have. A full copy of VPG's request has been placed in docket number FTA–2012–0029.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before September 4, 2012.
Comments should refer to docket number MARAD–2012–0081. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel MISS TRISS is:
The complete application is given in DOT docket MARAD–2012–0081 at
Anyone is able to search the electronic form of all 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 DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before October 2, 2012 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
To obtain additional information, or copies of the information collection and instructions, or copies of any comments received, contact Elaine Christophe, at (202) 622–3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The Department of the Treasury and the Internal Revenue Service, as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to take this opportunity to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
Currently, the IRS is seeking comments concerning the following forms, and reporting and record-keeping requirements:
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before October 2, 2012 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
To obtain additional information, or copies of the information collection and instructions, or copies of any comments received, contact Elaine Christophe, at (202) 622–3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The Department of the Treasury and the Internal Revenue Service, as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to take this opportunity to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
Currently, the IRS is seeking comments concerning the following forms, and reporting and record-keeping requirements:
Section 365 of the USA Patriot Act of 2001 (Pub. L. 107–56), adding new section 5331 to title 31 of the United States Code, authorized the Financial Crimes Enforcement Network to collect the information reported on Form 8300 and 8300–SP. In a joint effort to develop a dual use form, IRS and FinCEN worked together to ensure that the transmission of the data collected to FinCEN on Forms 8300 and 8300–SP do not violate the provisions of section 6103. FinCEN makes the Forms 8300 and 8300–SP available to law enforcement through its Bank Secrecy Act information sharing agreements.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is amending its adjudicatory rules of practice. This rule makes changes to the NRC's adjudicatory process that the NRC believes will promote fairness, efficiency, and openness in NRC adjudicatory proceedings. This rule also corrects errors and omissions that have been identified since the major revisions to the NRC's rules of practice in early 2004.
The effective date is September 4, 2012.
Please refer to Docket ID NRC–2008–0415 when contacting the NRC about the availability of information for this final rule. You may access information and comment submittals related to this final rule, which the NRC possesses and are publicly available, by any of the following methods:
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Tison Campbell, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–8579, email:
In a final rulemaking published in the
On February 28, 2011, the NRC proposed amendments to its rules of practice and procedure in 10 CFR Part 2. (76 FR 10781). After evaluating public comments on the proposed rule and making some modifications, the NRC is promulgating a final rule. These changes will promote fairness, efficiency, and openness in NRC adjudicatory proceedings. The final rule corrects errors and omissions that have been identified since the 2004 major revisions to the NRC's rules of practice.
The new and amended requirements in the final rule will not be retroactively applied to presiding officer determinations and decisions issued prior to the effective date of the final rule (e.g., a presiding officer order in response to a petition or motion), nor will these requirements be retroactively imposed on participants, such that a participant would have to compensate for past activities that were accomplished in conformance with the requirements in effect at the time, but would no longer meet the new or amended requirements in the final rule. Further, in ongoing adjudicatory proceedings, if there is a dispute over an adjudicatory obligation or situation arising prior to the effective date of the new rule, the former rule provisions would be used. However, the new or amended requirements will be effective and govern all obligations and disputes that arise after the effective date of the final rule. For example, if a Board issues a scheduling order before the effective date of the final rule that incorporates § 2.336(d), which currently requires parties to update their disclosures every 14 days, that obligation would change to every month on a day specified by the Board (unless the parties agree otherwise) once the effective date of the rule is reached. Therefore, Licensing Boards should be aware of the effective date of the final rule and take the necessary steps to notify parties of their obligations once the final rule becomes effective.
The public comment period for the proposed rule closed on May 16, 2011. In response to the proposed rule, the NRC received three comment letters—one from an organization representing industry (Agencywide Documents Access and Management System (ADAMS) Accession No. ML11137A119), one from a public interest group that has participated in NRC proceedings (ADAMS Accession No. ML11137A118), and one from an individual with experience participating in NRC proceedings (ADAMS Accession No. ML11119A231). None of the commenters supported the rule exactly as proposed. One commenter suggested changes to the proposed rule, responded to the NRC's questions for public comments, commented on the NRC's proposed changes to part 2, and provided one comment that is outside the scope of this rulemaking. Another
In Section VI of the Supplementary Information section of the proposed rule, the NRC presented two issues for which it solicited stakeholder comments. The following paragraphs restate these issues, summarize the comments received from stakeholders, and present the NRC's resolution of the public comments.
Section 2.336 contains the general procedures governing disclosure of information before a hearing in contested NRC adjudicatory proceedings. Under current § 2.336(b)(3), the NRC staff must disclose all documents supporting the staff's review of the application or proposed action that is the subject of the proceeding without regard to whether the documents are relevant to the parties' admitted contentions. In the proposed rule, the NRC solicited public comment on whether it should revise § 2.336(b)(3) to limit the staff's mandatory disclosure obligations to documents that are relevant to the admitted contentions.
After reviewing the public comments and considering the proposal to make changes to the scope of the staff's disclosure obligations, the NRC has decided to adopt a revised § 2.336 that will limit the scope of the staff's mandatory disclosures to documents relevant to the admitted contentions. The NRC believes that this change will reduce the burden on both the NRC staff and other parties to NRC proceedings. This change will allow participants to focus on the issues in dispute instead of being forced to sort through thousands of pages of documents that are not relevant to the matters being adjudicated. The NRC staff will continue to provide documents to the public through public ADAMS, and nothing in this rulemaking affects the scope of the staff's ongoing record-retention and disclosure obligations outside the adjudicatory process. This change affects only the scope of the documents that must be included in the staff's mandatory disclosures in NRC proceedings.
The NRC also requested comments on whether it should add a new requirement to the end of § 2.336(d) to clarify that the duty of mandatory disclosure with respect to new information or documents relevant to an admitted contention ends when the presiding officer issues a decision resolving the contention or at a time specified by the presiding officer or the Commission. None of the commenters objected to this proposal. The NRC is adopting this change.
(a)
This change does not affect the NRC staff's continued obligation to provide documents to the public through public ADAMS, the NRC's official agency records system, outside the adjudicatory process. Additional information about using public ADAMS to find documents related to a specific licensing action or licensee is discussed in the NRC's response to the comments on Question 1(b).
If the scope of disclosures is reduced and if the staff continues its “crabbed interpretation” of its disclosure obligations, then public participants will have no choice but to file weekly Freedom of Information Act (FOIA) requests for all NRC staff documents. (Roisman-Q1a)
Disclosure of documents through public ADAMS is not a new practice, and if parties believe that incorrect ADAMS references have been provided, they should contact the NRC staff to obtain a correct ADAMS reference or a copy of the document (if the ADAMS reference cannot be provided).
(b)
Further, the NRC has recently updated public ADAMS and the Electronic Hearing Docket, which should make it easier for members of the public to find documents. The new public ADAMS is incorporated into the NRC's public Web site search, which allows the public to search for ADAMS documents from the NRC's homepage using simple Google-like searches. The new public ADAMS (available at
(c)
The NRC should consult with experts in discovery, such as law professors or the Sedona Conference, to develop a more efficient and effective process for disclosing documents. (Roisman-Q1c)
This rulemaking is not the proper forum to raise problems with the staff's disclosures in a specific proceeding. If a party has concerns about staff disclosures in a specific proceeding, those concerns should be raised with the presiding officer for that proceeding.
(d)
(e)
The NRC requested public comments regarding possible amendments to § 2.311. Section 2.311 provides requirements for the interlocutory review of rulings by a presiding officer granting or denying a hearing request or intervention petition, including requests or petitions filed after the deadline in § 2.309(b). Current § 2.311(c) allows the requestor or petitioner to appeal an order wholly denying an intervention petition or hearing request. Therefore, if the presiding officer grants the intervention petition and denies the admissibility of one or more proposed contentions, the petitioner may not appeal the denial of any proposed contentions until the presiding officer issues a final initial decision at the end of the proceeding. Conversely, any party other than the petitioner may immediately appeal the order on the grounds that the requestor or petitioner lacks standing or that all of the petitioner's proposed contentions were inadmissible. Although this basic scheme for interlocutory review of intervention petitions and hearing requests has been in place since 1972 (
After reviewing the two options and the one public comment received on this proposal, the NRC has decided not to modify its standards for interlocutory appeals. The one public comment received on this issue (from an industry group) did not support changing the appeals process. The lack of public comments on this issue suggests that there is not a clamor for a change in the standards for interlocutory appeals. Thus, while an argument can be made in support of a change, the NRC finds no compelling justification to change the current process.
Further, the commenter does not support Option 2 because Commission review of initial decisions on petitions to intervene is important to ensure timely and efficient hearings. The commenter believes that this option would result in a significant expansion of the number and type of contentions litigated before licensing boards. These additional contentions would be contrary to the NRC's goal of increasing the efficiency of the hearing process. This option would also remove the “harmonizing” effect of Commission review, which corrects for the differences between licensing boards. (NEI-Q2)
The Commission recently reinforced this point in
This Commission decision does not mean that all contentions based on previously available information are inadmissible; rather, this decision focuses on a document that “collects, summarizes and places into context the facts [or previously available information] supporting [a] contention.”
The NRC should also clarify that the requirements in this section are in addition to the § 2.309(c) criteria and also apply to NRC SERs. (NEI–4)
The NRC included § 2.309(c)(5) in the proposed rule to provide clarity to the participants about an issue that has caused confusion for both participants and presiding officers. After further reflection, the NRC has decided not to adopt this change as part of the final rule. Instead, the NRC has added a clarifying discussion to this
Further, the NRC wants to make it clear to participants in its adjudicatory proceedings that when a draft or final NRC NEPA document contains information that was previously available and that is not significantly different from information in the applicant's environmental report, there is a presumption that the participant could have used that information to support a contention challenging the environmental report. Similarly, if
Finally, the NRC disagrees with the commenter that proposed § 2.309(c)(5) or a similar standard should apply to SERs. It is well-established in NRC case law that safety contentions must challenge the adequacy of the application, not the adequacy of the staff's review.
The NRC agrees with the second part of this comment—that § 2.323(a) should be amended to clarify that the timing requirement applies to all motions. As previously stated, the purpose of this rulemaking is to correct errors and omissions in the NRC rules. The NRC is thus amending § 2.323(a) to state that “all motions,” instead of “a motion,” must be made within ten days after the occurrence or circumstance from which the motion arises. However, because, in practice, § 2.309(c) motions (e.g., motions for leave to file new or amended contentions) have not been subject to the motion requirements in § 2.323, the NRC is amending § 2.323 to clarify that these motions are not subject to the requirements of this section. For instance, the 10-day timing requirement in § 2.323(a) does not apply to § 2.309(c) motions, but rather final § 2.309(c)(1) does.
1. The rule's strict application would not serve the purposes for which it was adopted.
2. The person seeking the waiver has alleged “special circumstances” that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule.
3. Those circumstances are “unique” to the facility rather than common to a large class of facilities.
4. A waiver of the rule is necessary to reach a significant safety or environmental problem. (NEI–5)
If the NRC adopts these changes in the final rule, the commenter requests that the relevant time period for disclosures mirror that in the final § 2.336 proposed by the commenter. (NEI–10)
The 45-day period in the current rule provides a deadline by which mandatory disclosures must be made should the parties not agree on a proposed discovery plan. Subpart G allows the parties to agree on changes to, among other things, the “timing, form, or requirement for disclosures under § 2.704, including a statement as to when disclosures under § 2.704(a)(1) were made or will be made.”
The NRC has also considered the commenter's concerns about mandatory disclosure supplements, and has decided to adopt modified disclosure update provisions in final §§ 2.704 and 2.709. The final disclosure update provisions in §§ 2.704 and 2.709 parallel the schedule in § 2.336(d). Final §§ 2.704 and 2.709, like final § 2.336(d), require monthly disclosure updates on a date specified by the presiding officer, unless the parties agree to a different date or frequency. These sections allow
The NRC is also amending § 2.709(a)(6) to contain the same 45-day period as in current § 2.704(a)(3). In addition, the NRC is amending § 2.336(b) to exclude all subpart G proceedings from the § 2.336 disclosure provisions, which parallels the exclusion in § 2.336(a).
Implementing these wholesale changes to the NRC's adjudicatory procedures would result in further delay because a new proposed rule would have to be prepared before a final rule implementing these suggestions could be adopted. Many of the changes in this final rulemaking are being adopted to correct problems identified within the current rules. For example, in most proceedings, the parties negotiate around the 14-day disclosure requirement to provide additional time to prepare disclosure updates. This final rule addresses this problem and provides additional guidance to parties by providing for monthly disclosure updates that capture all of the documents produced or obtained two weeks before the deadline.
The NRC may, however, consider these proposals when it next considers a comprehensive revision to its rules of practice and procedure—where these major changes would more appropriately be considered.
The North Anna COL proceeding, where the applicant changed reactor designs after the hearing started, is an extreme example of this practice. The NRC is “subverting the letter and intent” of 10 CFR Part 52 and is depriving the public of its opportunity to review and comment on the licensing proceedings. Notice of the publication of the Design Control Document for the new design, which is effectively a new application, should have been published in the
The current title of 10 CFR Part 2, “Rules of Practice for Domestic Licensing Proceedings and Issuance of Orders,” does not accurately reflect the scope of part 2, nor does it track the language of the Administrative Procedure Act (APA). The NRC is adopting a new title for 10 CFR Part 2, “Agency Rules of Practice and Procedure,” which better reflects the scope of the subparts and mirrors the language of the APA.
Current § 2.305(c)(4) refers to “any paper,” which could be interpreted to exclude electronic documents filed through the NRC's E-Filing system. To eliminate this ambiguity, final § 2.305(c)(4) will refer to “each document,” instead of “any paper.” The NRC has evaluated the public comments received on this issue and has decided to amend this section to allow participants to file limited certificates of service with documents filed through the E-Filing system. This limited certificate of service for documents served through only the E-Filing system does not need to contain the names and addresses of the participants served; a simple statement that the document has been served through the E-Filing system is all that is required. Documents that are not filed through the E-Filing system must include a traditional certificate of service—complete with the names, addresses, and method and date of service for all participants served. And documents that are served through both the E-Filing system and another method of service must include both a list of participants served through the E-Filing system and the name, address, and method and date of service for anyone served by the other method.
The NRC retains a record of all participants served through the E-Filing system. Further, after a participant serves a document through the E-Filing system, the system sends to all served participants a notification email, which contains the names and email addresses of all the participants that were served the document through the E-Filing system. The NRC also encourages the presiding officer and all participants to keep a record of the attorneys and representatives of record for each party to the proceeding. This practice will allow parties to quickly identify the appropriate contact for other parties without having to search in the Electronic Hearing Docket or ADAMS.
Further, the NRC notes that § 2.304 requires that electronic documents be signed using a participant's digital certificate; in such circumstances, it is not necessary to submit an electronic copy of the document that includes a traditional signature.
Current paragraph 2.305(g)(1) does not provide an address for service upon the NRC staff when a filing is not being made through the E-Filing system and no attorney representing the NRC staff has filed a notice of appearance in the proceeding. Final paragraph (g)(1) is amended to provide addresses to be used to accomplish service on the NRC staff when a filing is not being made through the E-Filing system and no attorney representing the NRC staff has filed a notice of appearance in the proceeding.
Section 2.309 contains the generally applicable procedures for requesting hearings and submitting petitions to intervene in NRC proceedings, and sets forth the requirements for submitting contentions and establishing legal standing to participate in NRC proceedings. The NRC is making several changes to § 2.309.
After reviewing the proposed rule, which would have added a cross-reference to the timing provision in § 2.205 to § 2.309(b)(5), the NRC realized that there are other sections in part 2 that impose different filing deadlines than those found in current § 2.309(b). Current § 2.309(b)(5) references orders issued under § 2.202, but does not reference other sections that might impose different deadlines to file a request for a hearing, a demand for a hearing, or a petition to intervene. For example, § 2.205 notices of violation, like § 2.202 orders, provide “twenty (20) days * * * or other time specified in the notice” for individuals to file an answer. This provision does not match the 60 days allowed by § 2.309(b), which could be interpreted as applying to § 2.205 notices of violation. Because there are a number of provisions in part 2 that impose different filing deadlines, the NRC is removing § 2.309(b)(5) and amending § 2.309(b) to clarify that the more specific provisions of part 2, such as §§ 2.103(b), 2.202, and 2.205, control when there is a discrepancy between the specific and general timing provisions.
Current § 2.309(c)(1) contains eight balancing factors that determine whether to grant or admit “nontimely” hearing requests, intervention petitions, or contentions. These factors include the three factors for standing—also found at § 2.309(d)(1)(ii) through (iv)—and the following five factors: good cause for the failure to file on time; the availability of other means to protect the requestor's or petitioner's interest; the extent to which the requestor's or petitioner's interest will be represented by other parties; the extent to which the requestor's or petitioner's interest will broaden the issues or delay the proceeding; and the extent to which the requestor's or petitioner's participation may reasonably be expected to assist in developing a sound record.
In practice, whether a “nontimely” hearing request, intervention petition, or contention is granted or admitted usually depends on whether the participant has shown good cause. The “good cause” factor is given the most weight out of the current factors, and “[i]f a petitioner cannot show good cause, then its demonstration on the other factors must be `compelling.'”
In addition, current § 2.309(f)(2) identifies three factors to be considered in determining whether to admit a new or amended contention filed after the initial filing. These factors include whether the new or amended contention is based on information that was not previously available, whether the information that was not previously available is materially different from information that was previously available, and whether the new or amended contention has been submitted in a timely fashion after the availability of the new information.
The similarity between §§ 2.309(c)(1) and (f)(2) has created some confusion and resulted in differing approaches to evaluating filings filed after the deadline in § 2.309(b). For example, in
This final rule simplifies the requirements governing hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in § 2.309(b) by (1) referring to “nontimely filings” as “filings after the deadline;” (2) clarifying the applicability of § 2.307 to certain filings (i.e., hearing requests, intervention petitions, and motions for leave to file new or amended contentions) that might be or are being filed after the deadline; (3) amending § 2.309(c) to permit filings after the deadline only if the filing satisfies the three factors found in current § 2.309(f)(2)(i) through (iii); (4) clarifying that the general requirements for motions in § 2.323 do not apply to § 2.309(c) filings; and (5) adding clarifying information regarding the need to address interest and standing.
As of this final rule, the NRC will no longer use the terms “late-filed” or “nontimely” with regard to filings (i.e., hearing requests, intervention petitions, and motions for leave to file new or amended contentions) and will instead focus on whether the filing was filed before or after the deadline in § 2.309(b). Therefore, the NRC will refer to contentions previously referred to as “late-filed contentions” as new or amended contentions filed after the deadline and “late-filed” hearing requests and intervention petitions as new hearing requests or new intervention petitions filed after the deadline. The current NRC case law using the terms “late-filed” or “nontimely” continues to apply in ruling on filings after the deadline. The NRC will discontinue using the terms “late-filed” or “nontimely” with regard to contentions for two reasons: (1) To avoid the potential negative implication created by these terms and instead to place emphasis on the fact-specific determination required by final § 2.309(c)(1); and (2) to allow all the requirements for filings after the deadline (currently contained in §§ 2.309(c) and 2.309(f)(2)) to be combined into one place in the regulations (in final § 2.309(c)(1)). The NRC is also making a conforming change to § 2.326(d) to replace the reference to nontimely filings with a reference to new or amended contentions filed after the deadline in § 2.309(b).
Final § 2.309(c) also clarifies that participants must file a motion for leave to file new or amended contentions after the deadline. Because a new petitioner is not a party to the proceeding, new hearing requests and new intervention petitions filed after the deadline do not need to be accompanied by or included in a motion for leave to file. The petitioner must, however, still show standing and demonstrate that it has satisfied the three factors in final § 2.309(c)(1) before its contentions will be considered.
The revisions to § 2.309 do not affect participants' ability to request modifications to deadlines under § 2.307, including the deadline in § 2.309(b) for filing a hearing request, intervention petition, or new or amended contention. A participant may file such a request under § 2.307 in advance of a deadline—for example, if the participant is unable to meet a deadline because of health issues—or shortly after a deadline—for example, if unanticipated events, such as a weather event or unexpected health issues, prevented the participant from filing for a reasonable period of time after the deadline. The NRC notes that “good cause” in § 2.307 does not share the same definition that is used for “good cause” in final § 2.309(c), so certain extraordinary circumstances such as a weather event or health issues might meet the definition of “good cause” in § 2.307 (even though these circumstances would not satisfy the definition of “good cause” in final § 2.309(c)). Final § 2.309(c)(2) makes clear that participants should file such
After a § 2.307 request to extend a filing deadline is granted, assuming the participant files by the new deadline (i.e., the extended date), the participant must only satisfy the requirements that would have applied had the participant filed by the original deadline (i.e., the deadline that was extended). In other words, if a participant is granted a § 2.307 extension and files by the new deadline, the participant's filing is treated as if it were filed by the original deadline. Therefore, as an example, a participant would not need to satisfy final § 2.309(c)(1) if the participant requested under § 2.307 to extend the applicable deadline in § 2.309(b), this request was granted, and the participant filed by the new deadline. The participant would not need to satisfy final § 2.309(c)(1) under these circumstances because the participant's filing would be treated as if it were filed before the deadline in § 2.309(b) and thus final § 2.309(c)(1) would not be triggered. In contrast, a participant would need to satisfy final § 2.309(c)(1) if the participant requested under § 2.307 to extend a specific deadline and the participant filed by the new deadline. The participant would need to satisfy final § 2.309(c)(1) under these circumstances because the § 2.309(b) deadline would have passed with or without the § 2.307 extension.
Final § 2.309(c) requires all filings after the deadline in § 2.309(b) to satisfy the current § 2.309(f)(2)(i)–(iii) factors. In the proposed rule, the NRC proposed making good cause the sole factor in § 2.309(c) for filings after the deadline and adopting the three factors found in current § 2.309(f)(2) as the standard for determining whether good cause exists under § 2.309(c). After further consideration, the NRC has decided that while the three factors from current § 2.309(f)(2) will be the sole bases for deciding whether to consider filings after the deadline with respect to the substance of the filing; a clarification will be added to final § 2.309(c)(2) to make it clear that requests to change the deadline itself should be made under § 2.307.
The change to current § 2.309(c) and current § 2.309(f)(2) simplifies the review of filings after the deadline. Assuming that a participant or party has demonstrated standing under § 2.309(d), all of the standards for filings after the deadline are in final § 2.309(c). By eliminating the factors in current § 2.309(c)(1)(v)–(viii) and consolidating the standards for filings after the deadline in final § 2.309(c), the final rule allows the parties, participants, and presiding officer to focus their resources on the most relevant questions with regard to whether a filing after the deadline will be considered—whether the filing meets the three factors from current § 2.309(f)(2).
Further, final § 2.309(c)(2) clarifies that § 2.323, which contains the general requirements for motions, does not apply to hearing requests, intervention petitions, or motions for leave to file new or amended contentions filed after the deadline in § 2.309(b). Section 2.309 governs hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline. For example, the provisions in final § 2.309(i) (not those in § 2.323(c)) apply to answers (and replies to answers) to hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline.
Final paragraph (c)(3) makes it clear that, apart from satisfying the current § 2.309(f)(2) factors, a petitioner seeking admission to the proceeding after the deadline in § 2.309(b) needs to satisfy the standing and contention admissibility requirements. Final paragraph (c)(4) applies to a participant or a party who seeks admission of a new or amended contention filed after the deadline, and who has already satisfied the standing requirements in § 2.309(d).
Final § 2.309(f)(2) continues to clarify that all contentions must be based on the documents or other information available at the time the petition is filed. This section makes it clear that, if possible, participants must file environmental contentions arising under NEPA based on the applicant's environmental report. This section further clarifies that a petitioner or participant may file new or amended environmental contentions after the deadline in § 2.309(b) (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in final § 2.309(c).
As part of the proposed rule, the NRC included a new § 2.309(c)(5), which would have required (similar to the language in current § 2.309(f)(2)) new or amended contentions challenging a draft or final NRC NEPA document to show that there is a significant difference between the applicant's environmental report and the NRC NEPA document. This proposed section would have treated the “significant difference” language in current § 2.309(f)(2) as an additional requirement, beyond the proposed § 2.309(c) requirements, for environmental contentions filed after the deadline. After further consideration, the NRC has decided not to adopt proposed § 2.309(c)(5) and instead is clarifying that the “significant difference” language in current § 2.309(f)(2) is not a separate standard, but is captured by the three factors in final § 2.309(c)(1). Under the final rule, participants are still required to file their initial environmental contentions on the applicant's environmental report, even though the NRC staff's NEPA documents are the subject of the environmental portion of the hearing. New or amended environmental contentions filed after the deadline, like new or amended safety contentions filed after the deadline, need to satisfy the requirements in final § 2.309(c). The NRC does not believe that there should be an additional requirement that must be satisfied for new or amended environmental contentions filed after the deadline.
As previously specified in current § 2.309(f)(2), participants may file a new or amended contention after the deadline in § 2.309(b) based on a draft or final NRC NEPA document if the participant demonstrates good cause by (1) showing that the information that is the subject of the new or amended contention was not previously available; (2) showing that there is information in the draft or final NRC NEPA document (i.e., environmental impact statement, environmental assessment, or any supplements to these documents) that differs significantly (i.e., is “materially different”) from the information in the applicant's documents; and (3) filing the contention in a timely manner after the NRC NEPA document's issuance.
Current § 2.309(d) sets forth the standing requirements and also contains some requirements that do not generally relate to standing. To clarify and to better articulate the generally applicable standing requirements, the NRC is making several revisions to § 2.309(d). The general standing criteria in § 2.309(d)(1) remain the same. Final § 2.309(d)(2) adopts the requirements of the first sentence of current § 2.309(d)(3), which requires the
As stated, the current § 2.309(d)(2) provisions for government participation, which do not contain generally applicable standing requirements like the rest of § 2.309, are revised and moved to a new § 2.309(h). Final § 2.309(h)(1), which is based on the existing § 2.309(d)(2)(i), requires any State, local governmental body, or Federally-recognized Indian Tribe seeking to participate as a party to submit at least one admissible contention. This section also includes the requirement that each governmental entity must designate a single representative for the hearing. If a request for hearing or petition to intervene is granted, the NRC would admit as a party a single designated representative of the State, a single designated representative for each local governmental body (county, municipality, or other subdivision), and a single designated representative for each Federally-recognized Indian Tribe, as applicable. This section also requires, as provided in the statement of considerations for the 2004 part 2 revisions, that:
Where a State's constitution provides that both the Governor and another State official or State governmental body may represent the interests of the State in a proceeding, the Governor and the other State official/government body will be considered separate potential parties. Each must separately satisfy the relevant contention requirement, and each must designate its own representative (that is, the Governor must designate a single representative, and the State official must separately designate a representative).
Final § 2.309(h)(2) is based on the existing § 2.309(d)(2)(ii), which states that in any potential proceeding for a facility (the term “facility” is defined in § 2.4) located within its boundaries, the State, local governmental body, or Federally-recognized Indian Tribe seeking party status need not further establish its standing. As revised, final §§ 2.309(h)(1) and (h)(2) delete the word “affected” from the phrase “Federally-recognized Indian Tribe.” The use of “affected” in this context is proper only in a high-level radioactive waste disposal proceeding.
Current § 2.309(h), which governs the filing of answers (and replies to answers) to hearing requests and petitions to intervene, is redesignated as § 2.309(i) and is further revised. Current § 2.309(h)(1) refers to “proffered contentions,” has a preamble limiting paragraph (h) to filing deadlines for hearing requests and intervention petitions, and does not include a clear reference to new or amended contentions filed after the deadline in § 2.309(b). The same deadlines should apply to answers (and replies to answers) to motions for leave to file new or amended contentions filed after the deadline in § 2.309(b) as apply to answers (and replies to answers) to intervention petitions and hearing requests filed after the deadline. The NRC is therefore amending this section to include answers (and replies to answers) to motions for leave to file new or amended contentions after the deadline. Because this change covers filings after the deadline in § 2.309(b), the reference to “proffered contentions” in final paragraph (i)(1) (current paragraph (h)(1)) is no longer necessary and is removed. The reference in current paragraph (h)(1) to “paragraphs (a) through (g)” is changed to “paragraphs (a) through (h)” due to the addition of new paragraph (h).
Current § 2.309(i) is redesignated as § 2.309(j). Final § 2.309(j) contains a new citation reference made necessary by the new § 2.309(h). Current § 2.309(i) provides that the presiding officer will, in most cases, issue a decision on requests for hearing and petitions to intervene within 45 days after service of the request or petition, absent an extension of time from the Commission. Since this rule was introduced in 2004, however, presiding officers have not expressly sought extensions from the Commission; rather, the practice has been to issue a notice of the expected date that a decision will be issued.
Current § 2.311(b) allows parties to appeal orders of the presiding officer to the Commission concerning a request for hearing, petition to intervene, or a request to access SUNSI or SGI within ten days after the service of the order. Any party who opposes the appeal may file a brief in opposition within ten days after service of the appeal. Experience has demonstrated that the filing time provided under this section is unnecessarily short, and sometimes results in superficial appellate briefs. Most adjudicatory bodies allow substantially more time for litigants to frame appellate arguments and to perform the necessary research and analysis. Well-considered briefs enable the appellate body, here the Commission, to make faster and better-reasoned decisions. The NRC is therefore extending the time to file an appeal and a brief in opposition to an
Current paragraph 2.314(c)(3) allows anyone disciplined under § 2.314(c) to file an appeal with the Commission within ten days after issuance of the order. Experience since the 2004 revisions of part 2 has demonstrated that ten days frequently is not adequate for parties to prepare quality appeals. The NRC is therefore extending the time to file an appeal of an order disciplining a party from ten to 25 days. The NRC believes that extending the time for appeals will result in higher-quality appeals.
Current § 2.315(c) allows interested State, local governmental bodies, and Federally-recognized Indian Tribes that have not been admitted as parties under § 2.309 a reasonable opportunity to participate in hearings. The NRC is amending § 2.315(c) to clarify that States, local governmental bodies, or Federally-recognized Indian Tribes that are allowed to participate in hearings take the proceeding as they find it, consistent with longstanding NRC case law.
Section 2.319(l) is updated to clarify the scope of the power of the presiding officer to refer rulings or certify questions to the Commission, consistent with the change to § 2.323, discussed in the next section.
The NRC is amending § 2.323(a) to clarify that § 2.309(c) motions (e.g., motions for leave to file new or amended contentions filed after the deadline in § 2.309(b)) are not subject to the requirements of this section. Section 2.309(b) motions are subject to the requirements in § 2.309. For example, the 10-day timing requirement in § 2.323(a) does not apply to motions for leave to file new or amended contentions filed after the deadline; instead, the presiding officer must make a fact-specific determination under final § 2.309(c)(1) as to whether the participant had good cause for filing the motion after the deadline or whether the participant submitted the filing in a timely fashion after the information upon which the contention is based became available.
The NRC is also amending § 2.323(f) to clarify the criteria for referrals in this paragraph, and to make the referral criteria consistent with the Commission's standards for consideration of these referrals. The criterion on “prompt decision * * * necessary to prevent detriment to the public interest or unusual delay or expense” is removed. The second criterion on “the decision or ruling involves a novel issue that merits Commission review” is revised to make clear that (1) this criterion concerns the
Section 2.335 details the procedures through which a challenge to the Commission's regulations may be raised as part of an adjudicatory proceeding. The current text of the rule limits these challenges to “a party to an adjudicatory proceeding,” which would seem to exclude petitioners from challenging the Commission's regulations. The Commission recognizes that challenges to the Commission's regulations are frequently contained in petitions to intervene and requests for hearing. Further, the Commission recognizes that petitioners may have a legitimate interest in raising such challenges before they are granted party status and that Atomic Safety and Licensing Boards have allowed petitioners to raise these concerns before being admitted as parties.
Also, a contention that challenges any Commission rule is outside the scope of the proceeding because, absent a waiver, `no rule or regulation of the Commission * * * is subject to attack * * * in any adjudicatory proceeding.' Similarly, any contention that amounts to an attack on applicable statutory requirements must be rejected by a licensing board as outside the scope of the proceeding. A petitioner may, however, within the adjudicatory context submit a request for waiver of a rule under 10 CFR 2.335, and outside the adjudicatory context file a petition for rulemaking under 10 CFR 2.802 or a request that the NRC Staff take enforcement action under 10 CFR 2.206.
Current § 2.336(b) contains the NRC staff's mandatory disclosure obligations. For instance, under current § 2.336(b)(3), the NRC staff must disclose all documents supporting the staff's review of the application or proposed action that is the subject of the proceeding without regard to whether the documents are relevant to the admitted contentions.
The 2004 revision to part 2 imposed mandatory disclosure requirements on all parties that were intended to reduce the overall burden of discovery in NRC adjudicatory proceedings. The NRC is concerned that the overall burden of discovery in NRC proceedings has not actually been reduced. The NRC believes that the primary source of the burden stems from the NRC staff's disclosure of hundreds or thousands of documents that are not relevant to any admitted contention. Disclosure of voluminous material by the staff also burdens other parties to the proceeding with having to search through hundreds or thousands of irrelevant documents to find the material that is relevant to the admitted contentions (other parties' disclosures are already limited to documents relevant to the admitted contentions; the staff's disclosures are not).
All parties also are required to produce privilege logs (a list of discoverable documents that are not being disclosed because the party asserts a privilege to protect the documents). Due to the large number of documents that are captured by the current regulations, the NRC staff must prepare a log of privileged documents,
The NRC is therefore amending § 2.336(b) to limit the scope of the staff's mandatory disclosure obligations to documents relevant to the initially admitted contentions and admitted new or amended contentions filed after the deadline in § 2.309(b). As a general matter, § 2.336(b) applies to all documents meeting the description in that provision whenever they're created, whether that be before or after the submission of the application.
Current § 2.336(d) requires parties to update their mandatory disclosures every 14 days. Experience with adjudications since early 2004 has demonstrated that the current disclosure provisions are much more burdensome for litigants than was initially anticipated. Part of the burden is the frequency of required updates to the mandatory disclosures. The NRC is therefore replacing the requirement to disclose information or documents within 14 days of discovery with a continuing duty to provide a monthly disclosure update. Final § 2.336(d) directs the presiding officer to select a day during the month (e.g., the first day of the month or the first Thursday in the month) when disclosure updates will be due. Alternatively, the parties may agree to a different due date or frequency for the disclosure updates.
Each disclosure update under final § 2.336(d) includes documents subject to disclosure under this section that have not been disclosed in a prior update. Documents that are developed, obtained, or discovered during the two weeks before the due date are not required to be included in that update (but if they are not included in the first update after they are discovered, then they must be included in the next update).
This change to § 2.336(d) will reduce the burden and increase the usefulness of updated disclosures. The NRC is also adding a sentence to the end of § 2.336(d), to clarify that the duty to update disclosures relevant to an admitted contention ends when the presiding officer issues a decision resolving the contention, or when otherwise specified by the presiding officer or the Commission.
Current §§ 2.340(a) and (b) currently imply that the presiding officer must reach a decision prior to the issuance of a license or license amendment, but this is not necessarily always the case. For operating licenses associated with production and utilization facilities, both the Atomic Energy Act and the NRC's regulations allow for the issuance of a license amendment upon a determination of “no significant hazards consideration.”
Finally, this section is amended to clarify that the presiding officer may make findings of fact and conclusions of law on any matter not put into controversy by the parties, but only to the extent that the presiding officer determines that a serious safety, environmental, or common defense and security matter exists, and only to the extent that the Commission, upon a required referral by the presiding officer, approves an examination of and decision on the referred matters.
Section 2.341(a)(2) currently provides the Commission with 40 days to act on a decision of a presiding officer or a petition for review. The current 40-day time frame has necessitated extensions of time in most proceedings, as 30 days is provided for the briefing period (i.e., for petitions for review, answers, and reply briefs), which often leaves the Commission insufficient time for an effective review of the filings. A 120-day Commission review period provides for a reasonable time period to review the filings without the unintended consequence of frequent or lengthy extensions. The NRC therefore is extending the time for Commission review from 40 days to 120 days. As has always been the case, the Commission may act before that time or extend that period as it deems necessary.
Section 2.341 contains requirements pertaining to the review of decisions and actions of a presiding officer by the Commission. Current § 2.341(b)(1) allows parties to file a petition for review of a full or partial initial decision by a presiding officer or any other decision or action by a presiding officer with respect to which a petition for review is authorized by this part. Under the current regulations, a petition for review must be filed with the Commission within 15 days of service of the decision. Similarly, current § 2.341(b)(3) allows other parties to file an answer supporting or opposing Commission review within ten days after service of a petition for review. And the petitioning party is allowed to file a reply brief within five days of service of any answer. Experience has demonstrated that the time allowed by the NRC's rules for petitions for review of a presiding officer's order (15 days) is unnecessarily short, and sometimes results in superficial appellate briefs.
The NRC does not expect the change in appeal deadlines to result in any unnecessary delays in making licensing decisions. Some Commission appeals of presiding officer initial decisions are completed before there is a final decision on the proposed action, and thus would not affect the timing of the final agency action. For example, this could occur when an appeal on the contested portion of a reactor licensing hearing (part 52 COL or part 50 construction permit) is completed before the Commission holds the mandatory hearing. Further, the NRC believes that the increased time to develop higher quality briefs may assist in shortening the time for Commission review in situations where the timing of a final agency action might be affected by the appellate process. Finally, even when a final presiding-officer decision approving a license comes before the Commission on a petition for review, the license can be issued immediately, notwithstanding the pendency of a petition for review.
As stated in the 2004 part 2 revisions, § 2.341 was intended to essentially restate the provisions of former § 2.786 (
The NRC is revising paragraph (f) of this section to address a perceived inconsistency in the standards for Atomic Safety and Licensing Board certifications and referrals to the Commission and Commission review of these issues. Current § 2.323(f) allows a presiding officer to refer a ruling to the Commission if a prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense, or if the presiding officer determines that the decision or ruling involves a novel issue that merits Commission review at the earliest opportunity. By contrast, current § 2.341(f) states that referred or certified rulings “will be reviewed” by the Commission only if the referral or certification “raises significant and novel legal or policy issues,
Current § 2.346(j) authorizes the Secretary to “[t]ake action on minor procedural matters.” Section 2.346(j) has served an important function because the need for the Commission to issue orders and hold affirmation sessions to dispose of adjudicatory matters can sometimes result in undesirable delays in resolving minor matters before the Commission. Many of these minor matters, by their very nature, do not have the precedential or policy significance that reasonably warrants Commission attention. Thus, by delegating authority to the Secretary to decide certain minor matters that come before the Commission, § 2.346(j) has promoted efficiency in NRC adjudications.
However, the rule's current language (i.e., “take action on minor procedural matters”) could be read to suggest that the Secretary's authority includes a more limited set of matters than intended, as matters must be both “minor” and “procedural” to qualify. To clarify the regulation, in the proposed rule, the NRC proposed amending § 2.346(j) to read as follows: “[t]ake action on procedural and other minor matters.” However, proposed § 2.346(j) could suggest that all procedural matters—no matter their precedential or policy significance—are appropriate for resolution by the Secretary. Upon further consideration, the NRC has decided to revise proposed § 2.346(j) to avoid misleading interpretations, without altering its intended meaning. Final § 2.346(j) thus reads: “[t]ake action on other minor matters.” This revision is designed to clearly authorize the range of minor matters that are appropriate for resolution by the Secretary.
Under the final rule, the Secretary will have authority to decide “other minor matters” (matters not covered by the other provisions in § 2.346) that come before the Commission, whether procedural or otherwise. The question of whether a given matter is “minor” will depend upon the matter's precedential or policy significance. Accordingly, even a matter that might arguably not be considered minor from a purely procedural standpoint, such as an unopposed withdrawal of a construction and operating license application, may fall within the scope of final § 2.346(j) because of its lack of precedential or policy significance. A number of recent orders issued by the Secretary informed the NRC's decision to adopt final § 2.346(j):
• March 10, 2011 order in the
• September 10, 2010 order in the
• March 30, 2010 order in the
• March 5, 2010 order in the
• September 11, 2009 order in the
• September 4, 2009 order in the
• April 27, 2009 order in the
• September 11, 2008 order in the
• February 13, 2008 order in the
There are a number of procedural matters that would not be considered minor, due to their precedential or policy significance, and thus would not fall within the Secretary's authority under final § 2.346(j). The following Commission decisions are examples of procedural matters that were not considered minor:
• January 24, 2011 order denying the request in a petition for rulemaking to suspend all license renewal proceedings where applications were submitted ten years in advance of license expiration, pending review of the petition for rulemaking. Resolving the suspension request required the Commission's analysis of the legal standard for suspending a proceeding.
• January 7, 2010, July 23, 2009, October 7, 2004, and January 30, 2004 notices of hearing and orders in the
• September 23, 2009 order in the
• June 5, 2008 order in the High-Level Waste Repository proceeding denying a motion to disqualify a law firm from representing the applicant due to conflicts of interest. Resolving the motion to disqualify required Commission analysis on whether the claimed conflicts of interest jeopardized the NRC's statutory responsibility to protect public health and safety.
When exercising the authority delegated to issue orders under § 2.346(j), the Secretary provides the Commissioners' offices with a draft of the order (generally three business days before the Secretary's action on the order). Internal Commission Procedures at I–2 (ADAMS Accession No. ML11269A125). This prior notification provides the Commission with an opportunity to issue the order itself if the Commission disagrees with the Secretary's determination that the matter at issue is “minor.”
In addition to amending § 2.346(j) to clarify the Secretary's authority over minor matters, the NRC is removing the reference to § 2.311 in § 2.346(e). Moreover, there are no deadlines for Commission action on appeals under final § 2.311.
Section 2.347 prohibits what are known as
The separation of functions provisions in § 2.348 prohibit certain communications between specified sets of NRC personnel on matters relevant to the merits of an ongoing adjudicatory hearing. Similar to the § 2.347 amendment discussed in the previous section, the NRC is correcting the separation of functions provisions in §§ 2.348(d)(1)(i) and (ii) by deleting the two references to § 2.204. As previously explained, unlike the other specified NRC actions, hearing rights do not attach to a demand for information. When the NRC promulgated § 2.781—the precursor to § 2.348—in 1988, the references to § 2.204 were proper. But the references became erroneous in 1991 for the reasons stated in the previous section with respect to §§ 2.347(e)(1)(i) and (ii). Accordingly, the NRC is now making conforming changes to §§ 2.348(d)(1)(i) and (ii).
Current § 2.704(a) through (c) set forth the required disclosures that parties other than the NRC staff must make in formal NRC adjudications (proceedings conducted under subpart G of 10 CFR Part 2).
In the proposed rule, the NRC suggested an amendment to this section that would have changed the due date for initial disclosures in subpart G proceedings from 45 days after the issuance of a prehearing conference order following the initial prehearing conference to 30 days after the order granting a hearing. After further consideration, and review of the public comments on this proposal, the NRC has decided not to change the deadline for initial disclosures in subpart G proceedings. The NRC has determined that modifying the 45-day period would have limited the time available to the parties to develop a proposed discovery plan and could have resulted in situations where initial disclosures would be due before the due date for the parties to submit a proposed discovery plan to the presiding officer in subpart G proceedings.
The NRC has, however, decided to adopt a modified disclosure update provision in final § 2.704(a)(3), which is similar to the proposed rule and parallels the timing provisions in final § 2.336(d). Current § 2.704(e) requires a party that has made a disclosure under § 2.704 to supplement its disclosures “at appropriate intervals * * * within a reasonable time” after the party learns that in some material respect the information disclosed was incomplete or incorrect (provided the additional or new information was not made available to other parties during the discovery process or in writing). Final § 2.704(a)(3) directs the presiding officer to select a day during the month (e.g., the first day of the month or the first Thursday in the month) when disclosure updates will be due, but allows the parties to agree to a different due date or frequency for disclosure updates. Documents that are developed, obtained, or discovered during the two weeks before the due date are not required to be included in the update (but if they are not included in the first update after they're discovered, then they must be included in the next update). Final § 2.704(e)(1) clarifies that supplemental disclosures must be made in accordance with the schedule established in final § 2.704(a)(3).
This change to § 2.704 will reduce the burden and increase the usefulness of updated disclosures. The NRC is also adding a sentence to the end of § 2.704, to clarify that a party's duty to update disclosures relevant to a disputed issue end when the presiding officer issues a decision resolving that disputed issue, or when otherwise specified by the presiding officer or the Commission.
Current § 2.705(b)(2) allows the presiding officer to “alter the limits in these rules on the number of depositions and interrogatories.” But the rules do not limit the number of depositions or interrogatories. The NRC is therefore amending this section to allow the presiding officer to set reasonable limits on the number of interrogatories and depositions. This change removes the confusion in this section and improves the efficiency of NRC adjudicatory proceedings.
The NRC is amending the NRC staff's mandatory disclosure obligations for proceedings conducted under part 2 subpart G. Current § 2.336(b) applies to NRC staff disclosures in subpart G proceedings, while § 2.336(a) (discovery for parties other than the NRC staff) does not apply to any proceeding conducted under subpart G. Section 2.336(b) requires initial disclosures to be made in NRC proceedings within 30 days of the issuance of the order granting a hearing request or intervention petition. Because subpart G (final §§ 2.704 and 2.709) requires initial
A corresponding amendment is being made to § 2.709 to specify the NRC staff's disclosure obligations in a subpart G proceeding, including the 45-day period for initial disclosures. The new section—final § 2.709(a)(6)—parallels the initial document disclosure requirements in §§ 2.704(a)(2) and (a)(3) for parties other than the NRC staff. Mirroring the language in § 2.704(a)(2), final § 2.709(a)(6)(i) requires the staff to disclose all NRC staff documents, data compilations, or other tangible things in possession, custody, or control of the NRC staff that are relevant to the disputed issues alleged with particularity in the pleadings, unless the NRC staff asserts a claim of privilege or protected status over the document, data compilation, or other tangible thing. The NRC notes that the references to “pleadings” in this section and other sections of part 2 include answers to orders, petitions to intervene, and requests for hearing. Although parties other than the NRC staff are also required by § 2.704(a)(1) to identify individuals likely to have discoverable information relevant to disputed issues, the NRC considers a similar disclosure requirement for the NRC staff to be unnecessary. The discoverable portions of any pertinent Office of Investigations report or related inspection report should identify many of the individuals likely to have discoverable information relevant to disputed issues. Final § 2.709(a)(6)(i) also requires that if a claim of privilege or protected status is made by the NRC staff for any documents, a list of these documents must be provided with sufficient information for assessing the claim of privilege or protected status.
Final § 2.709(a)(6)(ii) requires the NRC staff to provide monthly disclosure updates. Final § 2.709(a)(6)(ii) directs the presiding officer to select a day during the month (e.g., the first day of the month or the first Thursday in the month) when disclosure updates will be due. Alternatively, the parties may agree to a different due date or frequency for the disclosure updates. Documents that are developed, obtained, or discovered during the two weeks before the due date are not required to be included in that update. But if they are not included in the first update after they're discovered, then they must be included in the next update.
This change to § 2.709 will reduce the burden and increase the usefulness of updated disclosures. The NRC is also adding a sentence to the end of § 2.709, to clarify that the duty to update disclosures relevant to a disputed issue ends when the presiding officer issues a decision resolving that disputed issue, or when otherwise specified by the presiding officer or the Commission.
Section 2.709(a)(7) specifies the manner in which the NRC staff may disclose information in subpart G proceedings. For publicly available documents, data compilations, or other tangible things, the NRC staff meets its duty to disclose such information to the other parties and the presiding officer by identifying the location, the title, and a page reference to the subject information. If the publicly available documents, data compilations, or other tangible things can be accessed at either the NRC Web site,
Part 2 subpart L contains the adjudicatory procedures that the NRC uses to conduct most of its licensing proceedings. The procedures in subpart L were substantially revised in 2004 (69 FR 2182; January 14, 2004), and are intended to be used with the generally applicable provisions in subpart C. Under the provisions of part 2 as revised in 2004, a hearing conducted under subpart L meets the APA requirements for an “on the record” or “formal” hearing.
Section 2.1202 pertains to the authority and role of the NRC staff in less formal hearings. The introductory text of current § 2.1202(a) could be erroneously interpreted as suggesting that the staff is required to advise the presiding officer on the merits of contested matters. The NRC is therefore revising § 2.1202(a) to require that in subpart L proceedings, the staff's notice to parties regarding relevant staff licensing actions must include an explanation of why the public health and safety is protected and why the action is in accord with the common defense and security, despite the “pendency of the contested matter before the presiding officer.”
A conforming change to the introductory text of § 2.1403(a) is also being made to require the NRC staff to provide this explanation when the same situation arises in subpart N proceedings.
The summary-disposition motion requirements in subpart L (current § 2.1205) do not require the inclusion of a statement of material facts—an inadvertent omission during the 2004 part 2 revisions. Before the 2004 amendments to 10 CFR Part 2, the NRC's requirements governing motions for summary disposition required these motions to be accompanied by a “separate, short and concise statement of material facts as to which the moving party contends that there is no genuine issue to be heard.” Final § 2.1205 restores the requirement for a statement of material facts for which the moving party contends that there is no genuine issue. This section does not include the requirement for a “separate” statement of material facts in dispute, as the rule already requires that the statement be “attached” to the motion. The NRC is making a conforming change to § 2.710 to remove the word “separate,” which makes §§ 2.710 and 2.1205 identical in this regard
Further, the NRC received public comments asking for the removal of the affidavit requirement from § 2.1205 to make the affidavit requirements consistent for motions for summary disposition under subparts G and L.
Section 2.712(c) specifies the format for proposed findings of fact and conclusions of law in subpart G proceedings, but a similar format provision does not exist in subpart L. The NRC, therefore, is amending § 2.1209 by adding the format requirements now contained in § 2.712(c). These format requirements will aid presiding officers in subpart L proceedings by ensuring that proposed findings of fact and conclusions of law clearly and precisely communicate the parties' positions on the material issues in the proceeding, with citations to the factual record.
In 2007, the NRC removed § 2.1211 from its regulations (72 FR 49483; August 28, 2007). Paragraph 2.1210(d) contains a reference to this section, and should have been amended as part of the 2007 rulemaking. The NRC is therefore amending this section to remove the reference to § 2.1211.
The NRC is adding a new paragraph (f) to § 2.1213. Final paragraph (f) excludes, from the stay provisions, matters limited to whether a no significant hazards consideration determination for a power reactor license amendment was proper. No significant hazards consideration determinations may be made in license amendment proceedings for production or utilization facilities that are subject to the 10 CFR Part 50 requirements; challenges to these determinations are not allowed in accordance with 10 CFR 50.58(b)(6). Excluding no significant hazards consideration determinations from the stay provisions also is consistent with federal case law holding that these findings, which are not appealable to the Commission, are final agency actions.
The following changes are being made to subpart M of 10 CFR Part 2, which sets forth the procedures that are applicable to hearings on license transfer applications.
Current § 2.1300 states that the provisions of subpart M, together with subpart C, govern all adjudicatory proceedings on license transfers, but current § 2.1304 states that the procedures in subpart M “will constitute the exclusive basis for hearings on license transfer applications.” Current § 2.1304, part of the original subpart M, was effectively replaced by current § 2.1300 in the 2004 part 2 revisions, and could have been removed as part of that rulemaking. The NRC is now removing § 2.1304 and amending § 2.1300 to clarify that in subpart M hearings on license transfers, both the generally applicable intervention provisions in subpart C and the specific subpart M hearing procedures govern.
Section 2.1316(c) provides the procedures for the NRC staff to participate as a party in subpart M hearings. The NRC is updating these procedures to mirror the requirements of § 2.1202(b)(2) and (3), which set forth the NRC staff's authority and role in subpart L hearings. Final § 2.1316(c)(1) requires the NRC staff—within 15 days of the issuance of the order granting requests for hearing or petitions to intervene and admitting contentions—to notify the presiding officer and the parties whether it desires to participate as a party in the proceeding. If the staff decides to participate as a party, its notice will identify the contentions on which it will participate as a party. If the NRC staff later desires to be a party, the NRC staff would notify the presiding officer and the parties, and identify the contentions on which it wished to participate as a party, and would make the disclosures required by § 2.336(b)(3) through (5) unless accompanied by an affidavit explaining why the disclosures cannot be provided to the parties with the notice. Once the NRC staff chooses to participate as a party in a subpart M license transfer proceeding, it would have all the rights and responsibilities of a party with respect to the admitted contention or matter in controversy on which the staff chose to participate. As with § 2.1202, “the NRC staff must take the proceeding in whatever posture the hearing may be at the time that it chooses to participate as a party.” (69 FR 2228; January 14, 2004).
Current § 2.1321 contains a typographical error in paragraph (b). The NRC is amending this paragraph to correct the typographical error.
Current § 2.1407(a)(1) allows parties to appeal orders of the presiding officer to the Commission within 15 days after the service of the order. Similarly, current § 2.1407(a)(3) allows parties opposing an appeal to file a brief in opposition within 15 days of the filing of the appeal. Experience has demonstrated that the time allowed by the NRC's rules for appeals from a presiding officer's order is unnecessarily short, and sometimes results in superficial appellate briefs. Most adjudicatory bodies allow substantially more time for litigants to frame appellate arguments and to perform the necessary research and analysis. Well-considered briefs enable the appellate body, here the Commission, to make faster and better-reasoned decisions. The NRC is therefore extending the time to file an appeal and a brief in opposition to an appeal from 15 to 25 days. The NRC does not expect the proposed change in appeal deadlines to result in any delays in making licensing decisions. Some Commission appeals of presiding officer initial decisions are completed before there is a final decision on the proposed action, and thus would not affect the timing of the final agency action. For example, this could occur when an appeal on the contested portion of a reactor licensing hearing (part 52 COL or part 50 construction permit) is completed before the Commission holds the mandatory hearing. Further, the NRC believes that the increased time to develop higher quality briefs may assist in shortening the time for Commission review in situations where the timing of a final agency action might be affected by the appellate process.
The current definition of “Participant” applies to an “individual or organization,” and does not explicitly
The current definition of “NRC personnel” in § 2.4 contains outdated references to §§ 2.336 and 2.1018. The revision of “NRC personnel” updates this definition by removing references to §§ 2.336 and 2.1018, neither of which references the term “NRC personnel.”
In 2005, § 2.101 was amended to remove paragraph (e) and redesignate paragraphs (f) and (g) as paragraphs (e) and (f). (70 FR 61887; October 27, 2005). The internal references to paragraph (g) were not updated to reflect the new paragraph designations. References in this section to § 2.101(g) are being corrected to reference § 2.101(f). There are no references to former § 2.101(f) in this section.
In 2007, the NRC revised § 2.101 by adding a new paragraph (a)(9) and reserving paragraphs (a)(6)–(8). As part of this revision, the NRC should have moved paragraph (a–1) to follow paragraph (a)(9). (72 FR 57415; October 9, 2007). Because the current placement of paragraph (a–1) could cause confusion, the NRC is moving paragraph (a–1) to follow paragraph (a)(9). This change does not alter the meaning or intent of this regulation.
The NRC is making three changes to § 2.105: (1) The introductory text of paragraph (a) is revised by inserting a reference to the NRC's Web site; (2) the introductory text of paragraph (b) is revised to clarify that the referenced notice pertains to one published in the
Section 2.802(d), in accordance with the new definition of “Participant” in final § 2.4 and the amendment to the procedures for challenging the NRC's regulations in final § 2.335, is amended to replace the word “party” with “participant.”
In 2008, the NRC amended its regulations to reflect the reorganization of the Office of Nuclear Materials Safety and Safeguards and the creation of the Office of Federal and State Materials and Environmental Management Programs. (73 FR 5709; January 31, 2008). As part of these amendments, the NRC made a number of changes to part 2, but these changes were incomplete. The NRC is therefore amending §§ 2.101(a)(3) and (4), 2.106(a), 2.106(d), 2.107(c), 2.108(a), 2.108(b), 2.108(c), 2.318(b), 2.337(g)(1), (2), and (3), and 2.811(c) to include references to the Office of Federal and State Materials and Environmental Management Programs or to the Director of the Office of Federal and State Materials and Environmental Management Programs, or to replace references to the Office of Nuclear Materials Safety and Safeguards with references to the Office of Federal and State Materials and Environmental Management Programs, as appropriate.
In 2007, the NRC amended § 2.104 and removed and consolidated a number of paragraphs, including the redesignation of paragraph (e) as paragraph (c). (72 FR 49472; August 28, 2007). The NRC did not correct all of the cross-references to former paragraph (e), which should have been updated to reference current paragraph (c). The NRC is therefore amending §§ 2.103(a), 2.106(a), (c), and (d), and 61.25(c) to provide the correct reference to § 2.104(c) instead of the former § 2.104(e).
Current § 51.102(c) contains an outdated reference to “Subpart G of Part 2.” The reference is corrected to refer generally to part 2. Also, the reference to the former Atomic Safety and Licensing Appeal Board is removed from current § 51.102.
Current §§ 51.4, 51.34, 51.109(f), and 51.125 contain outdated references to the former Appeal Board, which are being removed from these sections.
Current § 12.308(a) contains an outdated reference to § 2.786, which was redesignated as § 2.341 in 2004. The NRC is replacing the now incorrect reference to § 2.786 with the correct reference to § 2.341. This section also references the 40-day review period in current § 2.341, which the NRC is increasing to 120 days in this rulemaking. To avoid any inconsistencies between the time for Commission review in final § 2.341 and § 12.308, the NRC is expanding the review period in § 12.308 from 40 to 120 days.
Current § 54.27 (pertaining to license renewal hearings for nuclear power reactors) contains an outdated reference to a 30-day period to request a hearing. As discussed in the 2004 part 2 revisions, the time in which to request a hearing under § 2.309(b) was extended to 60 days from the date a notice of opportunity for hearing is published (either in the
Throughout part 2, the terms “Presiding Officer” and “presiding officer” are used interchangeably, but with different capitalization, unlike part 51, which uses the term “presiding officer” uniformly without capitalization. The NRC is changing all references to the term “Presiding Officer” to “presiding officer” to make part 2 consistent with part 51.
This section modifies the definition of
The current definition also indicates that States, local governmental bodies, or affected Federally-recognized Indian Tribes that seek to participate under § 2.315(c) shall be considered participants. This section does not grant these governmental bodies § 2.315(c) participant status; this status is obtained only when the interested governmental body is afforded the opportunity to participate in the proceeding by the presiding officer. Governmental bodies that have requested § 2.315(c)
This section is amended to move paragraph (a–1) to follow paragraph (a)(9) and to correct typographical errors in paragraphs (a)(3) and (a)(4), and incorrect references to § 2.101(g), which should reference § 2.101(f). These changes do not alter the meaning or intent of this regulation.
This section is amended to correct an outdated reference to § 2.104(e), which should reference § 2.104(c). This change does not alter the meaning or intent of this regulation.
This section is updated to include a reference to the NRC's Web site. Paragraph (b) of this section is updated to clarify that the referenced “notice” is one that is published in the
Paragraph (a) is amended to add a reference to the Director, Office of Federal and State Materials and Environmental Management Programs. Paragraph (d) is amended to replace the reference to the Director, Office of Nuclear Material Safety and Safeguards, with a reference to the Director, Office of Federal and State Materials and Environmental Management Programs.
Paragraphs (a), (c), and (d) are amended to correct an outdated reference to § 2.104(e), which should reference § 2.104(c). This change does not alter the meaning or intent of these paragraphs.
Paragraph (c) is amended to add a reference to the Director, Office of Federal and State Materials and Environmental Management Programs.
Paragraphs (a), (b), and (c) are amended to add references to the Director, Office of Federal and State Materials and Environmental Management Programs.
Section 2.305, which currently requires any paper served in an NRC proceeding to include a signed certificate of service, is amended to clarify that filings not submitted through the E-Filing system must include a signed certificate of service that provides the name, address, and method and date of service for every participant served with the document. Final § 2.305 provides that if a document is submitted through only the E-Filing system, then its certificate of service must state only that the document was submitted through the E-Filing system. If the document is served through both the E-Filing system and some other method of service, then its certificate of service must include both a list of participants served through the E-Filing system and the name, address, and method and date of service for all participants served through the other method.
Under § 2.304(d)(1), persons submitting electronic documents to the NRC through the E-Filing system do not need to physically sign their documents; signature with a participant's digital ID certificate satisfies the requirement that a document be signed.
Section 2.305(g)(1), which does not currently provide an address for service upon the NRC staff when a filing is not being made through the E-Filing system and no attorney representing the NRC staff has filed a notice of appearance, is updated to provide participants with an address to use in these circumstances.
The NRC is removing § 2.309(b)(5) and amending § 2.309(b) to clarify that the more specific timing provisions of part 2, such as §§ 2.103(b), 2.202, and 2.205, control when there is a discrepancy between a more specific timing provision and the general timing provisions in § 2.309(b).
Section 2.309(c) is updated to consolidate the requirements for filings after the deadline and to clarify the intent of the regulations. Final § 2.309(c) incorporates the current § 2.309(f)(2)(i) through (iii) factors into final § 2.309(c)(1)(i) through (iii). Final § 2.309(c)(1) requires that a filing after the deadline (i.e., an intervention petition, hearing request, or motion for leave to file new or amended contentions filed after the deadline) must demonstrate that the three final § 2.309(c)(1)(i)–(iii) factors have been met. Meeting the final § 2.309(c)(1)(i)–(iii) factors demonstrates the existence of good cause justifying the filing after the deadline in § 2.309(b).
Final § 2.309(c)(1)(i) is met if the participant demonstrates that the information upon which the new or amended contention is based was not previously available. Final § 2.309(c)(1)(ii) is satisfied if the information that supports the filing after the deadline (and was not previously available) is materially different from previously available information. And final § 2.309(c)(1)(iii) is satisfied if a participant submits this filing in a timely fashion based on the availability of the subsequent information.
Final § 2.309(c)(2) clarifies that changes to a deadline based on good cause considerations not related to the substance of the filings continue to be governed by § 2.307, and that § 2.323, which contains the general requirements for motions, does not apply to hearing requests, intervention petitions, or motions for leave to file new or amended contentions filed after the deadline in § 2.309(b).
Final § 2.309(c)(3) clarifies that a hearing request or intervention petition filed after the deadline must specify at least one contention if the petitioner seeks admission as a party, and requires a petitioner to meet the standing and contention admissibility requirements in §§ 2.309(d) and (f); a petitioner who has already satisfied the § 2.309(d) standing requirements does not have to do so again (as specified in final § 2.309(c)(4)).
Final § 2.309(c)(4) requires that any new or amended contentions filed by a party or participant after the deadline must meet the admissibility requirements in § 2.309(f), and clarifies that a party or participant who has already demonstrated standing does not
Final § 2.309(f)(2) continues to require that all contentions be based on the documents available at the time when the petition is filed. Final § 2.309(f)(2) clarifies that environmental contentions must be based on the applicant's environmental report, but new or amended environmental contentions may be filed after the deadline in § 2.309(b) in accordance with the requirements in final § 2.309(c) (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents).
Current paragraphs (d)(2)(i) and (ii) apply only to “affected” Federally-recognized Indian Tribes, which is proper only in the context of a high-level radioactive waste disposal proceeding. Final § 2.309(h), which is the current § 2.309(d)(2), is revised to clarify that, in the case of § 2.309(h)(1) and (2), any Federally-recognized Indian Tribe that wishes to participate in any potential proceeding for a facility located within its boundaries does not need to further establish its standing. Final § 2.309(h)(3), which is the current § 2.309(d)(2)(iii), applies only to a high-level waste disposal proceeding and retains the references to affected Federally-recognized Indian Tribes; the references in this section mirror the language used in the § 2.1001 definition of
Current § 2.309(h) is redesignated as § 2.309(i) and is amended to clarify that it includes answers (and replies to answers) to intervention petitions and hearing requests filed after the deadline in § 2.309(b). Further, the reference to “proffered contentions” in paragraph (i)(1) is amended to reference “motions for leave to file new or amended contentions” because contentions filed before the deadline will be part of an intervention petition or hearing request. Finally, cross references to other paragraphs in § 2.309 are updated to reflect the addition of new paragraph (h).
Current § 2.309(i) is redesignated as § 2.309(j) and is updated to reflect new § 2.309(h). Further, this section is revised to require a presiding officer to advise the Commission and the parties if a decision on a hearing request or intervention petition cannot be issued within 45 days of the conclusion of the pre-hearing conference. The presiding officer's notification must also notify the parties when a decision will be issued.
Final § 2.311(b) extends the time to file an appeal and a brief in opposition to an appeal from ten to 25 days.
Final § 2.314(c)(3) extends the time to file an appeal to an order disciplining a party from ten to 25 days.
Final § 2.315(c) clarifies that interested States, local government bodies, and Federally-recognized tribes, who are not parties admitted to a hearing under § 2.309 and who seek to participate in the hearing, must take the proceeding as they find it. Consistent with NRC case law, these participants (under final § 2.315(c)) cannot raise issues related to contentions or issues that were resolved prior to their entry as participants in the proceeding—if a State, local governmental body, or Federally-recognized Indian Tribe chooses to participate in a proceeding late in the process, their participation is subject to any orders already issued and should not interfere with the schedule established for the proceeding.
Paragraph (b) is amended to add a reference to the Director, Office of Federal and State Materials and Environmental Management Programs
Final § 2.319(r) reincorporates former § 2.1014(h) without any changes to the original language or intent. This section requires that an admitted contention that constitutes pure issues of law, as determined by the presiding officer, must be decided on the basis of briefs or oral argument.
Final § 2.323(a) is amended to clarify that § 2.309(c) motions are not subject to the requirements of § 2.323.
Final § 2.323(f) allows the presiding officer to independently, or in response to a petition from a party, certify questions or refer rulings to the Commission if the issue satisfies one of the two § 2.323(f)(1) criteria. In each case, the presiding officer would make the initial determination as to whether the issue or petition raises significant and novel legal or policy issues, or if prompt decision by the Commission is necessary to materially advance the orderly disposition of the proceeding.
Final § 2.326(d) is updated to replace a reference to “nontimely contentions” with a reference to “new or amended contentions filed after the deadline in § 2.309(b).” As previously discussed, the NRC is no longer using the term “nontimely contentions,” which has been replaced with the term “new or amended contentions filed after the deadline in § 2.309(b).”
Current § 2.335 limits the requests for waivers or exceptions from NRC regulations to parties to a proceeding. Final § 2.335 clarifies that participants to an adjudicatory proceeding, including petitioners, may seek a waiver or exception from the NRC's regulations for a particular proceeding. This change adopts the NRC's practice of allowing petitions to intervene and requests for hearing to contain § 2.335 requests for waivers or exceptions from the NRC's regulations.
This section is amended to change the scope of the NRC staff's disclosure obligations in § 2.336(b). The disclosure obligations in final § 2.336(b) mirror those in § 2.336(a), which do not apply to proceedings conducted under subparts G and J and are limited to documents related to the admitted contentions. The NRC is therefore amending § 2.336(b)(1) through (4) to limit the documents that must be disclosed to those “that are relevant to the admitted contentions.”
This section is amended to require the filing of monthly mandatory disclosure updates, with the disclosure due date to be selected by the presiding officer;
Paragraph (g) is amended to add references to the Director, Office of Federal and State Materials and Environmental Management Programs.
Final § 2.340 clarifies that in some circumstances, the NRC may act on a license, renewed license, or license amendment prior to the completion of any contested hearing. Paragraphs (a) and (b) concern construction and operating licenses, renewed licenses, combined licenses, and amendments to these licenses. These paragraphs are amended to clarify that, in the case of a license amendment involving a power reactor, the NRC may complete action on the amendment request without waiting for the presiding officer's initial decision once the NRC makes a determination that the amendment involves no significant hazards consideration. In proceedings for the initial issuance or renewal of a construction permit, operating license, or renewed license, and proceedings for the amendment of an operating or renewed license where the NRC has not made a determination of no significant hazards consideration, these paragraphs are amended to clarify that the NRC may not act on the application until the presiding officer issues an initial decision in the contested proceeding.
Paragraph (c), which deals with initial decisions under 10 CFR 52.103(g), is amended to clarify that the presiding officer may make findings of fact and conclusions of law on the matters put into controversy by the parties, and any matter designated by the Commission to be decided by the presiding officer. Further, the amended paragraph clarifies that matters not put into controversy by the parties shall be referred to the Commission for its consideration. The Commission could, in its discretion, treat any of these referred matters as a request for action under § 2.206 and would process the matter in accordance with § 52.103(f).
Paragraphs (d) and (e), which concern manufacturing licenses under 10 CFR Part 52 and proceedings not involving production or utilization facilities, are amended to clarify that the NRC will issue, deny, or condition any permit, license, or amendment in accordance with a presiding officer's initial decision. These paragraphs are also amended to clarify that the NRC may issue a license amendment before a presiding officer's initial decision becomes effective.
This revision clarifies that in all cases, the presiding officer is limited to matters placed into controversy by the parties, and serious matters not put into controversy by the parties that concern safety, common defense and security, or the environment that the Commission has approved for review upon the presiding officer's referral of the matter.
Finally, paragraph (f) is amended to correct an inadvertent omission in the 2004 part 2 revisions. Final § 2.340(f) now includes a decision directing the issuance of a renewed license under part 54 in the list of initial decisions that are immediately effective upon issuance unless the presiding officer finds that good cause has been shown by a party why the initial decision should not become immediately effective.
Final § 2.341(b) extends the time to file a petition for review and an answer to a petition from 15 to 25 days, and extends the time to file a reply to an answer from five to ten days.
Final § 2.341 reincorporates the “deemed denied” provision of former § 2.786(c), with an additional 90 days for Commission review before petitions for review are deemed denied. The additional 90 days would allow the Commission 120 days of review time before a petition for review is deemed denied.
Similarly, the time for the Commission to act on a decision of a presiding officer or a petition for review is expanded to 120 days to bring this section into alignment with the new timeline in final § 2.341(c)(1).
Final § 2.341(f) allows, but does not require, the Commission to review certifications or referrals that meet any of the standards in this paragraph.
This section clarifies the Secretary's authority under § 2.346(j). For matters that fall within § 2.346(j), the Secretary may decide them without further Commission action, thus avoiding the need for formal Commission orders and affirmation sessions. Under current § 2.346(j), the Secretary's authority covers “minor procedural matters.” To clarify the broader intent of this rule, the NRC proposed replacing “minor procedural matters” with “procedural and other minor matters.” After further consideration, the NRC has decided to adopt a modified version of the proposed rule, which will now authorize the Secretary to take action on “other minor matters” (not covered by the other provisions in § 2.346). The final rule retains the same meaning as the proposed rule, but avoids any misleading impressions that the proposed rule might have created. Also, the reference to § 2.311 is removed from § 2.346(e) because appeals under § 2.311 do not have deadlines for Commission action.
These sections currently reference § 2.204 demands for information, which are not orders and do not entail hearing rights. Because demands for information are not adjudicatory matters, the restrictions on
This section, which continues to require initial disclosures to be made within 45 days after the issuance of a prehearing conference order following the initial prehearing conference, is amended to require the filing of monthly mandatory disclosure updates on a date specified by the presiding officer, though the parties to a proceeding may agree to a different due
The NRC is also updating § 2.704(e)(1) to clarify that a party's disclosures must be supplemented in accordance with the schedule in final § 2.704(a)(3).
This section, which currently states that the “presiding officer may alter the limits * * * on the number of depositions and interrogatories,” is amended to remove any implication created by the word “alter” that these rules impose a limit on the number of depositions and interrogatories; the rules do not impose any such limitation. Instead, the final rule clarifies that the presiding officer “may set limits on the number of depositions and interrogatories.”
This new paragraph requires the NRC staff to provide initial disclosures within 45 days after the issuance of a prehearing conference order following the initial prehearing conference. The NRC staff disclosures include all NRC staff documents relevant to disputed issues alleged with particularity in the proceedings (except for those documents, data compilations, or other tangible things, for which there is a claim of privilege or protected status), including any Office of Investigations Report and supporting Exhibits, and any Office of Enforcement documents regarding the order. The staff is also required to file a monthly disclosure update, with the disclosure due date to be selected by the presiding officer; however, the parties to a proceeding may agree to a different due date or disclosure frequency. These disclosure updates include all disclosable documents not included in a prior update. Documents that are discovered, obtained, or developed in the two weeks prior to a disclosure update may be included in the next update. Parties not disclosing any documents are expected to file an update informing the presiding officer and the other parties that that party is disclosing no documents for the period covered by that update. The duty to update disclosures relevant to a disputed issue ends when the presiding officer issues a decision resolving that disputed issue, or as specified by the presiding officer or the Commission. The staff is also required to provide, with initial disclosures and disclosure updates, a privilege log that lists the withheld documents and includes sufficient information to assess the claim of privilege or protected status. These requirements parallel the final § 2.704 requirements for parties other than the NRC staff.
This section is amended to conform to the amendments to final § 2.1205, which requires parties to attach a statement of material facts to a motion for summary disposition. This change has no effect on the current practice of including a statement of material facts with a motion; it clarifies that the statement needs to be attached to the motion and does not have to be “separate.”
This section currently allows petitioners for a rulemaking to request the suspension of an adjudicatory proceeding to which they are a party. This section is amended to allow any petitioner for a rulemaking that is a participant in a proceeding (as defined by § 2.4) to request suspension of that proceeding.
Paragraph (c) is amended to add a reference to the Director, Office of Federal and State Materials and Environmental Management Programs.
This section currently requires the NRC staff to include its position on the matters in controversy when it notifies the presiding officer of its decision on a licensing action, which could be incorrectly interpreted as requiring the staff to advise the presiding officer on the merits of the contested matters. This amended section clarifies the authority and role of the NRC staff in less formal hearings; staff notices regarding licensing actions have to include an explanation of why the public health and safety is protected and why the action is in accord with the common defense and security, despite the “pendency of the contested matter before the presiding officer.”
This section is amended to remove the requirement that parties submit an affidavit with motions for summary disposition, which makes the affidavit requirements in final § 2.1205 consistent with the requirements in § 2.710. Despite the removal of this affidavit requirement, the NRC strongly recommends that parties to NRC proceedings, particularly those conducted under subpart L, continue to include affidavits with their motions for summary disposition.
This section currently does not specify the formatting requirements for findings of fact and conclusions of law. Final § 2.1209 incorporates the § 2.712(c) formatting requirements for findings of fact and conclusions of law to ensure that proposed findings of fact and conclusions of law clearly and precisely communicate the parties' positions on the material issues in the proceeding, with exact citations to the factual record.
Paragraph (d) of this section is amended to remove a reference to a regulation that no longer exists; this change does not alter the meaning or intent of this regulation.
Current § 2.1213 does not exclude, from the stay provisions, matters limited to whether a “no significant hazards consideration” determination for a power reactor license amendment was proper. Section 50.58(b)(6) prohibits challenges to these determinations; section 2.1213 is therefore amended to exclude, from the stay provisions, matters limited to whether a no significant hazards consideration determination was proper.
The NRC is removing § 2.1304 and amending § 2.1300 to clarify that the generally applicable intervention provisions in subpart C and the specific provisions in subpart M govern in subpart M proceedings.
The NRC is removing § 2.1304 and amending § 2.1300 to clarify that the generally applicable intervention provisions in subpart C and the specific provisions in subpart M govern in subpart M proceedings.
This section currently allows the NRC staff to submit a simple notification at any point in the proceeding to become a party. The NRC is adopting the requirements in § 2.1202(b)(2) and (3) that require the NRC staff, within 15 days of the issuance of the order granting requests for hearing or petitions to intervene and admitting contentions, to notify the presiding officer and the parties whether it desires to participate as a party in the proceeding. The staff's notice must identify the contentions on which it will participate as a party; the staff can join the proceeding at a later stage by providing notice to the presiding officer, identifying the contentions on which it wishes to participate as a party, and making the disclosures required by final § 2.336(b)(3) through (5).
The second sentence of paragraph (b) is amended to correct a typographical error; this change does not alter the meaning or intent of this regulation.
This section, which is essentially identical to § 2.1202, is amended to mirror the changes made to that section.
This section is also updated to correct the reference to § 2.101(f)(8), which should reference § 2.101(e)(8); this change does not alter the meaning or intent of this regulation.
Proposed § 2.1407(a) extends the time to file an appeal and an answer to an appeal from 15 to 25 days.
This section is amended to expand the time for the Commission to review an initial decision on a fee application, either at the request of the applicant, the NRC counsel, or on its own initiative, to 120 days, which aligns this section with the new timeline in final § 2.341(c)(1).
This section is also amended to correct an outdated reference to § 2.786, which should reference § 2.341. This change does not alter the meaning or intent of this regulation.
This section is amended to remove an outdated reference to the former Atomic Safety and Licensing Appeal Board in the definition of
This section is amended to remove outdated references to “Subpart G of Part 2” and to the former Atomic Safety and Licensing Appeal Board. These changes do not alter the meaning or intent of this regulation.
This section is amended to remove outdated references to “Subpart G of Part 2” and to the former Atomic Safety and Licensing Appeal Board. These changes do not alter the meaning or intent of this regulation.
This section is amended to remove an outdated reference to the former Atomic Safety and Licensing Appeal Board. This change does not alter the meaning or intent of this regulation.
This section is amended to remove outdated references to “Subpart G of Part 2” and to the former Atomic Safety and Licensing Appeal Board. These changes do not alter the meaning or intent of this regulation.
This section replaces an outdated reference to a 30-day period to request a hearing with a reference to the correct 60-day period to request a hearing. This section retains the provision that in the absence of any hearing requests, a renewed operating license may be issued without a hearing upon 30-day notice published in the
This section is amended to correct an outdated reference to § 2.104(e), which should reference § 2.104(c). This change does not alter the meaning or intent of this regulation.
The Plain Writing Act of 2010 (Pub. L. 111–274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).
The National Technology Transfer and Advancement Act of 1995, Public Law 104–113, requires that Federal agencies use technical standards that are developed by voluntary, private sector, consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this rule, the NRC is approving changes to its procedures for the conduct of hearings in 10 CFR Part 2. This action does not constitute the establishment of a government-unique standard as defined in Office of Management and Budget (OMB) Circular A–119 (1998).
This rule involves an amendment to 10 CFR Part 2, and thus qualifies as an action for which no environmental review is required under the categorical exclusion set forth in 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rulemaking.
This rule does not contain any information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
This rule emanates from the desire to make corrections, clarifications, and conforming changes to the NRC's rules of practice and to improve the hearing process. Those amendments that merely reflect either clarifications or corrections to the adjudicatory regulations are not changes to the existing processes. These amendments would not result in a cost to the NRC or to participants in NRC adjudicatory proceedings, and a benefit would accrue to the extent that potential confusion over the meaning of the NRC's regulations is removed.
The more substantial changes in this rule do not impose costs upon either the NRC or participants in NRC adjudications, but instead bring benefits. Allowing monthly disclosure updates under § 2.336(d) will reduce burdens on participants. Fairness and equitable treatment are furthered by the changes made to the 10 CFR 2.309 filing provisions and to the 10 CFR Part 2 discovery provisions. These discovery amendments improve adjudicatory efficiency, as do the amendments made to the format requirements for findings in final § 2.1209.
The option of preserving the status quo is not preferred. Failing to correct errors and clarify ambiguities will result in continuing confusion over the meaning of the rules, which could lead to the unnecessary waste of resources. Also, experience has shown that the agency hearing process can be improved through appropriate rule changes. The NRC believes that this rule improves the fairness, efficiency, and openness of NRC hearings without imposing costs on either the NRC or participants in NRC adjudicatory proceedings.
In accordance with the Regulatory Flexibility Act, as amended, 5 U.S.C. 605(b), the NRC certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule applies in the context of NRC adjudicatory proceedings concerning nuclear reactors or nuclear materials. Reactor licensees are large organizations that do not fall within the definition of a small business found in Section 3 of the Small Business Act, 15 U.S.C. 632, within the small business standards set forth in 13 CFR Part 121, or within the size standards established by the NRC (10 CFR 2.810). Based upon the historically low number of requests for hearings involving materials licensees, it is not expected that this rule will have any significant economic impact on a substantial number of small businesses.
The NRC has determined that the backfit rule does not apply to this rule because the amendments do not involve any provisions that would impose backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis is not required for this rule.
This rule is not a major rule under the Congressional Review Act of 1996.
Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
Adversary adjudications, Award, Equal Access to Justice Act, Final disposition, Net worth, Party.
Administrative practice and procedure, Environmental impact statement, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements.
Administrative practice and procedure, Age-related degradation, Backfitting, Classified information, Criminal penalties, Environmental protection, Nuclear power plants and reactors, Reporting and recordkeeping requirements.
Criminal penalties, Low-level waste, Nuclear materials, Reporting and recordkeeping requirements, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Parts 2, 12, 51, 54, and 61.
Atomic Energy Act secs.161, 181, 191 (42 U.S.C. 2201, 2231, 2241); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); 5 U.S.C. 552; Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note).
Section 2.101 also issued under Atomic Energy Act secs. 53, 62, 63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); Nuclear Waste Policy Act sec. 114(f) (42 U.S.C. 10143(f)); National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy Reorganization Act sec. 301 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Sections 2.200–2.206 also issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101–410, as amended by section 3100(s), Pub. L. 104–134 (28 U.S.C. 2461 note). Subpart C also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Section 2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 also issued under 5 U.S.C. 557. Section 2.340 also issued under Nuclear Waste Policy Act secs. 135, 141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under 5 U.S.C. 552. Sections 2.600–2.606 also issued under sec. 102 (42 U.S.C. 4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act sec. 29 (42 U.S.C. 2039). Subpart K also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act sec. 184, 189 (42 U.S.C. 2234, 2239). Subpart N also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239).
(2) For the purpose of §§ 2.702 and 2.709 only, persons acting in the capacity of consultants to the Commission, regardless of the form of the contractual arrangements under which such persons act as consultants to the Commission; and
(a) * * *
(3) If the Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, determines that a tendered application for a construction permit or operating license for a production or utilization facility, and/or any environmental report required pursuant to subpart A of part 51 of this chapter, or part thereof as provided in paragraphs (a)(5) or (a–1) of this section are complete and acceptable for docketing, a docket number will be assigned to the application or part thereof, and the applicant will be notified of the determination. With respect to the tendered application and/or environmental report or part thereof that is acceptable for docketing, the applicant will be requested to:
(4) The tendered application for a construction permit, operating license, early site permit, standard design approval, combined license, or manufacturing license will be formally docketed upon receipt by the Director, Office of New Reactors, Director, Office of Nuclear Reactor Regulation, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, of the required additional copies. Distribution of the additional copies shall be deemed to be complete as of the time the copies are deposited in the mail or with a carrier prepaid for delivery to the designated addresses. The date of docketing shall be the date when the required copies are received by the Director, Office of New Reactors, Director, Office of Nuclear Reactor Regulation, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate. Within 10 days after docketing, the applicant shall submit to the Director, Office of New Reactors, Director, Office of Nuclear Reactor Regulation, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, an affidavit that distribution of the additional copies to Federal, State, and local officials has been completed in accordance with requirements of this chapter and written instructions furnished to the applicant by the Director, Office of New Reactors, Director, Office of Nuclear Reactor Regulation, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate. Amendments to the application and environmental report shall be filed and distributed and an affidavit shall be furnished to the Director, Office of New Reactors, Director, Office of Nuclear Reactor Regulation, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, in the same manner as for the initial application and environmental report. If it is determined that all or any part of the tendered application and/or environmental report is incomplete and therefore not acceptable for processing, the applicant will be informed of this determination, and the respects in which the document is deficient.
(9) * * *
(a–1)
(1)
(i) Part one shall include or be accompanied by any information required by §§ 50.34(a)(1) and 50.30(f) of this chapter which relates to the issue(s) of site suitability for which an early review, hearing, and partial decision are sought, except that information with respect to operation of the facility at the projected initial power level need not be supplied, and shall include the information required by §§ 50.33(a) through (e) and 50.37 of this chapter. The information submitted shall also include:
(A) Proposed findings on the issues of site suitability on which the applicant has requested review and a statement of the bases or the reasons for those findings,
(B) A range of postulated facility design and operation parameters that is sufficient to enable the Commission to perform the requested review of site suitability issues under the applicable provisions of parts 50, 51, and 100, and
(C) Information concerning the applicant's site selection process and long-range plans for ultimate development of the site required by § 2.603(b)(1).
(ii) Part two shall include or be accompanied by the remaining information required by §§ 50.30(f), 50.33, and 50.34(a)(1) of this chapter.
(iii) Part three shall include the remaining information required by §§ 50.34a and (in the case of a nuclear power reactor) 50.34(a) of this chapter.
(iv) The information required for part two or part three shall be submitted during the period the partial decision on part one is effective. Submittal of the information required for part three may precede by no more than 6 months or follow by no more than 6 months the submittal of the information required for part two.
(2)
(i) Part one shall include or be accompanied by any information required by §§ 52.79(a)(1) and 50.30(f) of this chapter which relates to the issue(s) of site suitability for which an early review, hearing, and partial decision are sought, except that information with respect to operation of the facility at the projected initial power level need not be supplied, and shall include the information required by §§ 50.33(a) through (e) and 50.37 of this chapter. The information submitted shall also include:
(A) Proposed findings on the issues of site suitability on which the applicant
(B) A range of postulated facility design and operation parameters that is sufficient to enable the Commission to perform the requested review of site suitability issues under the applicable provisions of parts 50, 51, 52, and 100; and
(C) Information concerning the applicant's site selection process and long-range plans for ultimate development of the site required by § 2.621(b)(1).
(ii) Part two shall include or be accompanied by the remaining information required by §§ 50.30(f), 50.33, and 52.79(a)(1) of this chapter.
(iii) Part three shall include the remaining information required by §§ 52.79 and 52.80 of this chapter.
(iv) The information required for part two or part three shall be submitted during the period the partial decision on part one is effective. Submittal of the information required for part three may precede by no more than 6 months or follow by no more than 6 months the submittal of the information required for part two.
(b) After the application has been docketed, each applicant for a license for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, except applicants under part 61 of this chapter, which must comply with paragraph (f) of this section, shall serve a copy of the application and environmental report, as appropriate, on the chief executive of the municipality in which the activity is to be conducted or, if the activity is not to be conducted within a municipality on the chief executive of the county, and serve a notice of availability of the application or environmental report on the chief executives of the municipalities or counties which have been identified in the application or environmental report as the location of all or part of the alternative sites, containing the docket number of the application; a brief description of the proposed site and facility; the location of the site and facility as primarily proposed and alternatively listed; the name, address, telephone number, and email address (if available) of the applicant's representative who may be contacted for further information; notification that a draft environmental impact statement will be issued by the Commission and will be made available upon request to the Commission; and notification that if a request is received from the appropriate chief executive, the applicant will transmit a copy of the application and environmental report, and any changes to such documents which affect the alternative site location, to the executive who makes the request. In complying with the requirements of this paragraph the applicant should not make public distribution of those parts of the application subject to § 2.390(d). The applicant shall submit to the Director, Office of Nuclear Material Safety and Safeguards or Director, Office of Federal and State Materials and Environmental Management Programs, as appropriate, an affidavit that service of the notice of availability of the application or environmental report has been completed along with a list of names and addresses of those executives upon whom the notice was served.
(d) The Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will give notice of the docketing of the public health and safety, common defense and security, and environmental parts of an application for a license for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, except that for applications pursuant to part 61 of this chapter, paragraph (f) of this section applies to the Governor or other appropriate official of the State in which the facility is to be located or the activity is to be conducted and will publish in the
(f) * * *
(2) * * *
(i) * * *
(D) Serve a notice of availability of the application and environmental report on the chief executives or governing bodies of the municipalities or counties which have been identified in the application and environmental report as the location of all or part of the alternative sites if copies are not distributed under paragraph (f)(2)(i)(C) of this section to the executives or bodies.
(ii) All distributed copies shall be completely assembled documents identified by docket number. However, subsequently distributed amendments may include revised pages to previous submittals and, in these cases, the recipients will be responsible for inserting the revised pages. In complying with the requirements of paragraph (f) of this section the applicant may not make public distribution of those parts of the application subject to § 2.390(d).
(5) The Director, Office of Nuclear Material Safety and Safeguards or Director, Office of Federal and State Materials and Environmental Management Programs, as appropriate, will cause to be published in the
(a) If the Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, finds that an application for a byproduct, source, special nuclear material, facility, or operator license complies with the requirements of the Act, the Energy Reorganization Act, and this chapter, he will issue a license. If the license is for a facility, or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, or for a construction authorization for a HLW repository at a geologic repository operations area under parts 60 or 63 of this chapter, or if it is to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, the Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Nuclear Material Safety and Safeguards, or Director, Office of Federal and State Materials and Environmental Management Programs, as appropriate, will inform the State, Tribal and local officials specified in § 2.104(c) of the issuance of the license. For notice of issuance requirements for licenses
(a) If a hearing is not required by the Act or this chapter, and if the Commission has not found that a hearing is in the public interest, it will, before acting thereon, publish in the
(b) A notice of proposed action published in the
(d) The notice of proposed action will provide that, within the time period provided under § 2.309(b):
(a) The Director, Office of New Reactors, Director, Office of Nuclear Reactor Regulation, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will inform the State and local officials specified in § 2.104(c) and publish a document in the
(c) The Director of Nuclear Material Safety and Safeguards will also cause to be published in the
(d) The Director, Office of Federal and State Materials and Environmental Management Programs will also cause to be published in the
(c) The Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will cause to be published in the
(a) The Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, may deny an application if an applicant fails to respond to a request for additional information within thirty (30) days from the date of the request, or within such other time as may be specified.
(b) The Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, will cause to be published in the
(1) The applicant may demand a hearing, and
(2) Any person whose interest may be affected by the proceeding may file a petition for leave to intervene.
(c) When both a notice of receipt of the application and a notice of hearing have been published, the presiding officer, upon a motion made by the staff under § 2.323, will rule whether an application should be denied by the Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, under paragraph (a) of this section.
(c) * * *
(4) Each document served (as may be required by law, rule, or order of the presiding officer) upon a participant to the proceeding must be accompanied by a signed certificate of service.
(i) If a document is served on participants through only the E-filing system, then the certificate of service must state that the document has been filed through the E-Filing system.
(ii) If a document is served on participants by only a method other than the E-Filing system, then the certificate of service must state the name, address, and method and date of service for all participants served.
(iii) If a document is served on some participants through the E-Filing system and other participants by another method of service, then the certificate of service must include a list of participants served through the E-filing system, and it must state the name, address, and method and date of service for all participants served by the other method of service.
(g) * * *
(1) Service shall be made upon the NRC staff of all documents required to be filed with participants and the presiding officer in all proceedings, including those proceedings where the NRC staff informs the presiding officer of its determination not to participate as a party. Service upon the NRC staff shall be by the same or equivalent method as service upon the Office of the Secretary and the presiding officer, e.g., electronically, personal delivery or courier, express mail, or expedited delivery service. If no attorney representing the NRC Staff has filed a notice of appearance in the proceeding and service is not being made through the E-Filing System, service will be made using the following addresses, as
The revisions and addition read as follows:
(b)
(c)
(i) The information upon which the filing is based was not previously available;
(ii) The information upon which the filing is based is materially different from information previously available; and
(iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.
(2)
(ii) Section 2.323 does not apply to hearing requests, intervention petitions, or motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section.
(3)
(4)
(d) * * *
(2)
(3)
(f) * * *
(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicant's environmental report. Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.
(h)
(2) If the proceeding pertains to a production or utilization facility (as defined in § 50.2 of this chapter) located within the boundaries of the State, local governmental body, or Federally-recognized Indian Tribe seeking to participate as a party, no further demonstration of standing is required. If the production or utilization facility is not located within the boundaries of the State, local governmental body, or Federally-recognized Indian Tribe seeking to participate as a party, the State, local governmental body, or Federally-recognized Indian Tribe also must demonstrate standing.
(3) In any proceeding on an application for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, or an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, the Commission shall permit intervention by the State and local governmental body (county, municipality or other subdivision) in which such an area is located and by any affected Federally-recognized Indian Tribe as defined in parts 60 or 63 of this chapter if the requirements of paragraph (f) of this section are satisfied with respect to at least one contention. All other petitions for intervention in any such proceeding must be reviewed under the provisions
(i)
(1) The applicant/licensee, the NRC staff, and other parties to a proceeding may file an answer to a hearing request, intervention petition, or motion for leave to file amended or new contentions filed after the deadline in § 2.309(b) within 25 days after service of the request, petition, or motion. Answers should address, at a minimum, the factors set forth in paragraphs (a) through (h) of this section insofar as these sections apply to the filing that is the subject of the answer.
(2) Except in a proceeding under § 52.103 of this chapter, the participant who filed the hearing request, intervention petition, or motion for leave to file new or amended contentions after the deadline may file a reply to any answer. The reply must be filed within 7 days after service of that answer.
(3) No other written answers or replies will be entertained.
(j)
(2) The Commission, acting as the presiding officer, shall expeditiously grant or deny the request for hearing in a proceeding under § 52.103 of this chapter. The Commission's decision may not be the subject of any appeal under § 2.311.
(b) These appeals must be made as specified by the provisions of this section, within 25 days after the service of the order. The appeal must be initiated by the filing of a notice of appeal and accompanying supporting brief. Any party who opposes the appeal may file a brief in opposition to the appeal within 25 days after service of the appeal. The supporting brief and any answer must conform to the requirements of § 2.341(c)(2). No other appeals from rulings on requests for hearing are allowed.
(c) * * *
(3) Anyone disciplined under this section may file an appeal with the Commission within 25 days after issuance of the order. The appeal must be in writing and state concisely, with supporting argument, why the appellant believes the order was erroneous, either as a matter of fact or law. The Commission shall consider each appeal on the merits, including appeals in cases in which the suspension period has already run. If necessary for a full and fair consideration of the facts, the Commission may conduct further evidentiary hearings, or may refer the matter to another presiding officer for development of a record. In the latter event, unless the Commission provides specific directions to the presiding officer, that officer shall determine the procedure to be followed and who shall present evidence, subject to applicable provisions of law. The hearing must begin as soon as possible. In the case of an attorney, if no appeal is taken of a suspension, or, if the suspension is upheld at the conclusion of the appeal, the presiding officer, or the Commission, as appropriate, shall notify the State bar(s) to which the attorney is admitted. The notification must include copies of the order of suspension, and, if an appeal was taken, briefs of the parties, and the decision of the Commission.
(c) The presiding officer will afford an interested State, local governmental body (county, municipality or other subdivision), and Federally-recognized Indian Tribe that has not been admitted as a party under § 2.309, a reasonable opportunity to participate in a hearing. The participation of any State, local governmental body, or Federally-recognized Indian Tribe shall be limited to unresolved issues and contentions, and issues and contentions that are raised after the State, local governmental body, or Federally-recognized Indian Tribe becomes a participant. Each State, local governmental body, and Federally-recognized Indian Tribe shall, in its request to participate in a hearing, designate a single representative for the hearing. The representative shall be permitted to introduce evidence, interrogate witnesses where cross examination by the parties is permitted, advise the Commission without requiring the representative to take a position with respect to the issue, file proposed findings in those proceedings where findings are permitted, and petition for review by the Commission under § 2.341 with respect to the admitted contentions. The representative shall identify those contentions on which they will participate in advance of any hearing held.
(b) The Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, the Director, Office of Federal and State Materials and Environmental Management Programs, or the Director, Office of Nuclear Material Safety and Safeguards, as appropriate, may issue an order and take any otherwise proper administrative action with respect to a licensee who is a party to a pending proceeding. Any order related to the subject matter of the pending proceeding may be modified by the presiding officer as appropriate for the purpose of the proceeding.
(l) Refer rulings to the Commission under § 2.323(f)(1), or certify questions to the Commission for its determination, either in the presiding officer's discretion, or on petition of a party under § 2.323(f)(2), or on direction of the Commission.
(r) Establish a schedule for briefs and oral arguments to decide any admitted contentions that, as determined by the presiding officer, constitute pure issues of law.
(a)
(2)
(f)
(2) A party may petition the presiding officer to certify a question to the Commission for early review. The presiding officer shall apply the criteria in § 2.341(f)(1) in determining whether to grant the petition for certification. No motion for reconsideration of the presiding officer's ruling on a petition for certification will be entertained.
(d) A motion to reopen that relates to a contention not previously in controversy among the parties must also satisfy the § 2.309(c) requirements for new or amended contentions filed after the deadline in § 2.309(b).
(b) A participant to an adjudicatory proceeding subject to this part may petition that the application of a specified Commission rule or regulation or any provision thereof, of the type described in paragraph (a) of this section, be waived or an exception be made for the particular proceeding. The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted. The petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted. The affidavit must state with particularity the special circumstances alleged to justify the waiver or exception requested. Any other participant may file a response by counter-affidavit or otherwise.
(c) If, on the basis of the petition, affidavit, and any response permitted under paragraph (b) of this section, the presiding officer determines that the petitioning participant has not made a
(e) Whether or not the procedure in paragraph (b) of this section is available, a participant to an initial or renewal licensing proceeding may file a petition for rulemaking under § 2.802.
(b) Except for proceedings conducted under subparts G and J of this part or as otherwise ordered by the Commission, the presiding officer, or the Atomic Safety and Licensing Board assigned to the proceeding, the NRC staff must, within 30 days of the issuance of the order granting a request for hearing or petition to intervene and without further order or request from any party, disclose or provide to the extent available (but excluding those documents for which there is a claim of privilege or protected status):
(1) The application (if applicable) and applicant or licensee requests that are relevant to the admitted contentions and are associated with the application or proposed action that is the subject of the proceeding;
(2) NRC correspondence with the applicant or licensee that is relevant to the admitted contentions and associated with the application or proposed action that is the subject of the proceeding;
(3) All documents (including documents that provide support for, or opposition to, the application or proposed action) that both support the NRC staff's review of the application or proposed action that is the subject of the proceeding and are relevant to the admitted contentions;
(4) Any NRC staff documents that both represent the NRC staff's determination on the application or proposal that is the subject of the proceeding and are relevant to the admitted contentions; and
(d) The duty of disclosure under this section is continuing. Parties must update their disclosures every month after initial disclosures on a due date selected by the presiding officer in the order admitting contentions, unless the parties agree upon a different due date or frequency. The disclosure update shall be limited to documents subject to disclosure under this section and does not need to include documents that are developed, obtained, or discovered during the two weeks before the due date. Disclosure updates shall include any documents subject to disclosure that were not included in any previous disclosure update. The duty to update
(g) * * *
(1) Facility construction permits. In a proceeding involving an application for construction permit for a production or utilization facility, the NRC staff shall offer into evidence any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act, any safety evaluation prepared by the NRC staff, and any environmental impact statement prepared in the proceeding under subpart A of part 51 of this chapter by the Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee.
(2) Other applications where the NRC staff is a party. In a proceeding involving an application for other than a construction permit for a production or utilization facility, the NRC staff shall offer into evidence:
(i) Any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act;
(ii) At the discretion of the NRC staff, a safety evaluation prepared by the NRC staff and/or NRC staff testimony and evidence on the contention or contested matter prepared in advance of the completion of the safety evaluation;
(iii) Any NRC staff statement of position on the contention or contested matter provided to the presiding officer under § 2.1202(a); and
(iv) Any environmental impact statement or environmental assessment prepared in the proceeding under subpart A of part 51 of this chapter by the Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee if there is any, but only if there are admitted contentions or contested matters with respect to the adequacy of the environmental impact statement or environmental assessment.
(3) Other applications where the NRC staff is not a party. In a proceeding involving an application for other than a construction permit for a production or utilization facility, the NRC staff shall offer into evidence, and (with the exception of an ACRS report) provide one or more sponsoring witnesses, for:
(i) Any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act;
(ii) At the discretion of the NRC staff, a safety evaluation prepared by the NRC staff and/or NRC staff testimony and evidence on the contention or contested matter prepared in advance of the completion of the safety evaluation;
(iii) Any NRC staff statement of position on the contention or contested matter under § 2.1202(a); and
(iv) Any environmental impact statement or environmental assessment prepared in the proceeding under subpart A of part 51 of this chapter by the Director, Office of Nuclear Reactor Regulation, Director, Office of New Reactors, Director, Office of Federal and State Materials and Environmental Management Programs, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee if there is any, but only if there are admitted contentions or contested matters with respect to the adequacy of the environmental impact statement or environmental assessment.
(a)
(2)
(i) In a contested proceeding for the initial issuance or renewal of a construction permit, operating license, or renewed license, or the amendment of an operating or renewed license where the NRC has not made a determination of no significant hazards consideration, the Commission, the Director, Office of Nuclear Reactor Regulation, or the Director, Office of New Reactors, as appropriate, after making the requisite findings, shall issue, deny, or appropriately condition the permit or license in accordance with the presiding officer's initial decision once that decision becomes effective.
(ii) In a contested proceeding for the amendment of a construction permit, operating license, or renewed license where the NRC has made a determination of no significant hazards consideration, the Commission, the Director, Office of Nuclear Reactor Regulation, or the Director, Office of New Reactors, as appropriate (appropriate official), after making the requisite findings and complying with any applicable provisions of § 2.1202(a) or § 2.1403(a), may issue the amendment before the presiding officer's initial decision becomes effective. Once the presiding officer's initial decision becomes effective, the appropriate official shall take action with respect to that amendment in accordance with the initial decision. If the presiding officer's initial decision becomes effective before the appropriate official issues the amendment, then the appropriate official, after making the requisite findings, shall issue, deny, or appropriately condition the amendment in accordance with the presiding officer's initial decision.
(b
(2)
(ii) In a contested proceeding for the amendment of a combined license under part 52 of this chapter where the NRC has made a determination of no significant hazards consideration, the Commission, the Director, Office of Nuclear Reactor Regulation, or the Director, Office of New Reactors, as appropriate (appropriate official), after making the requisite findings and complying with any applicable provisions of § 2.1202(a) or § 2.1403(a), may issue the amendment before the presiding officer's initial decision becomes effective. Once the presiding officer's initial decision becomes effective, the appropriate official shall take action with respect to that amendment in accordance with the initial decision. If the presiding officer's initial decision becomes effective before the appropriate official issues the amendment, then the appropriate official, after making the requisite findings, shall issue, deny, or appropriately condition the amendment in accordance with the presiding officer's initial decision.
(c)
(d)
(2)
(ii) In a contested proceeding for the initial issuance or renewal of a manufacturing license under subpart C of part 52 of this chapter, or the amendment of a manufacturing license, the Commission, the Director, Office of Nuclear Reactor Regulation, or the Director, Office of New Reactors, as appropriate, may issue the license, permit, or license amendment in accordance with § 2.1202(a) or § 2.1403(a) before the presiding officer's initial decision becomes effective. If, however, the presiding officer's initial decision becomes effective before the license, permit, or license amendment is issued under § 2.1202 or § 2.1403, then the Commission, the Director, Office of Nuclear Reactor Regulation, or the Director, Office of New Reactors, as appropriate, shall issue, deny, or appropriately condition the license, permit, or license amendment in accordance with the presiding officer's initial decision.
(e)
(2)
(ii) In a contested proceeding under this paragraph (e), the Commission, the Director, Office of Nuclear Material Safety and Safeguards, or the Director, Office of Federal and State Materials and Environmental Management Programs, as appropriate, may issue the permit, license, or amendment in accordance with § 2.1202(a) or § 2.1403(a) before the presiding officer's initial decision becomes effective. If, however, the presiding officer's initial decision becomes effective before the permit, license, or amendment is issued under § 2.1202 or § 2.1403, then the Commission, the Director, Office of Nuclear Material Safety and Safeguards, or the Director, Office of Federal and State Materials and Environmental
(f)
(g)–(h) [Reserved]
(i)
(1) If the Commission or the appropriate Director has made all findings necessary for issuance of the authorization, permit or license, not within the scope of the initial decision of the presiding officer; and
(2) Notwithstanding the pendency of a petition for reconsideration under § 2.345, a petition for review under § 2.341, or a motion for stay under § 2.342, or the filing of a petition under § 2.206.
(j)
(1) If the Commission or the appropriate director is otherwise able to make the finding under § 52.103(g) of this chapter that the prescribed acceptance criteria are met for those acceptance criteria not within the scope of the initial decision of the presiding officer;
(2) If the presiding officer's initial decision—with respect to contentions that the prescribed acceptance criteria have not been met—finds that those acceptance criteria have been met, and the Commission or the appropriate director thereafter is able to make the finding that those acceptance criteria are met;
(3) If the presiding officer's initial decision—with respect to contentions that the prescribed acceptance criteria will not be met—finds that those acceptance criteria will be met, and the Commission or the appropriate director thereafter is able to make the finding that those acceptance criteria are met; and
(4) Notwithstanding the pendency of a petition for reconsideration under § 2.345, a petition for review under § 2.341, or a motion for stay under § 2.342, or the filing of a petition under § 2.206.
(k)
(1) If the Commission or the appropriate Director has made all findings necessary for issuance of the license, not within the scope of the initial decision of the presiding officer; and
(2) Notwithstanding the pendency of a petition for reconsideration under § 2.345, a petition for review under § 2.341, or a motion for stay under § 2.342, or the filing of a petition under § 2.206.
(a)(1) Review of decisions and actions of a presiding officer are treated under this section; provided, however, that no party may request further Commission review of a Commission determination to allow a period of interim operation under § 52.103(c) of this chapter. This section does not apply to appeals under § 2.311 or to appeals in the high-level waste proceeding, which are governed by § 2.1015.
(2) Within 120 days after the date of a decision or action by a presiding officer, or within 120 days after a petition for review of the decision or action has been served under paragraph (b) of this section, whichever is greater, the Commission may review the decision or action on its own motion, unless the Commission, in its discretion, extends the time for its review.
(b)(1) Within 25 days after service of a full or partial initial decision by a presiding officer, and within 25 days after service of any other decision or action by a presiding officer with respect to which a petition for review is authorized by this part, a party may file a petition for review with the Commission on the grounds specified in paragraph (b)(4) of this section. Unless otherwise authorized by law, a party to an NRC proceeding must file a petition for Commission review before seeking judicial review of an agency action.
(3) Any other party to the proceeding may, within 25 days after service of a petition for review, file an answer supporting or opposing Commission review. This answer may not be longer than 25 pages and should concisely address the matters in paragraph (b)(2) of this section to the extent appropriate. The petitioning party may file a reply brief within 10 days of service of any answer. This reply brief may not be longer than 5 pages.
(c)(1) If within 120 days after the filing of a petition for review the Commission does not grant the petition, in whole or in part, the petition is deemed to be denied, unless the Commission, in its discretion, extends the time for its consideration of the petition and any answers to the petition.
(2) If a petition for review is granted, the Commission may issue an order specifying the issues to be reviewed and designating the parties to the review proceeding. The Commission may, in its
(3) Unless the Commission orders otherwise, any briefs on review may not exceed 30 pages in length, exclusive of pages containing the table of contents, table of citations, and any addendum containing appropriate exhibits, statutes, or regulations. A brief in excess of 10 pages must contain a table of contents with page references and a table of cases (alphabetically arranged), cited statutes, regulations, and other authorities, with references to the pages of the brief where they are cited.
(f) * * *
(1) A ruling referred or question certified to the Commission under §§ 2.319(l) or 2.323(f) may be reviewed if the certification or referral raises significant and novel legal or policy issues, or resolution of the issues would materially advance the orderly disposition of the proceeding.
(e) Extend the time for the Commission to grant review on its own motion under § 2.341;
(j) Take action on other minor matters.
(e)(1) * * *
(i) When a notice of hearing or other comparable order is issued in accordance with §§ 2.104(a), 2.105(e)(2), 2.202(c), 2.205(e), or 2.312; or
(ii) Whenever the interested person or Commission adjudicatory employee responsible for the communication has knowledge that a notice of hearing or other comparable order will be issued in accordance with §§ 2.104(a), 2.105(e)(2), 2.202(c), 2.205(e), or 2.312.
(d)(1) * * *
(i) When a notice of hearing or other comparable order is issued in accordance with §§ 2.104(a), 2.105(e)(2), 2.202(c), 2.205(e), or 2.312; or
(ii) Whenever an NRC officer or employee who is or has reasonable cause to believe he or she will be engaged in the performance of an investigative or litigating function or a Commission adjudicatory employee has knowledge that a notice of hearing or other comparable order will be issued in accordance with §§ 2.104(a), 2.105(e)(2), 2.202(c), 2.205(e), or 2.312.
(a) * * *
(3) Unless otherwise stipulated by the parties or directed by order of the presiding officer, these disclosures must be made within 45 days after the issuance of a prehearing conference order following the initial prehearing conference specified in § 2.329. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully completed its investigation of the case, because it challenges the sufficiency of another party's disclosures, or because another party has not made its disclosures. The duty of disclosure under this section is continuing. A disclosure update must be made every month after initial disclosures on a due date selected by the presiding officer, unless the parties agree upon a different due date or frequency. The disclosure update shall be limited to documents subject to disclosure under this section and does not need to include documents that are developed, obtained, or discovered during the two weeks before the due date. Disclosure updates shall include any documents subject to disclosure that were not included in any previous disclosure update. The duty to update disclosures relevant to a disputed issue ends when the presiding officer issues a decision resolving that disputed issue, or at such other time as may be specified by the presiding officer or the Commission.
(e) * * *
(1) When a party learns that in some material respect the information disclosed under paragraph (a) of this section is incomplete or incorrect, and if additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing, a party shall supplement its disclosures in accordance with the disclosure update schedule in paragraph (a)(3) of this section.
(b) * * *
(2) Upon his or her own initiative after reasonable notice or in response to a motion filed under paragraph (c) of this section, the presiding officer may set limits on the number of depositions and interrogatories, and may also limit the length of depositions under § 2.706 and the number of requests under §§ 2.707 and 2.708. The presiding officer shall limit the frequency or extent of use of the discovery methods otherwise permitted under these rules if he or she determines that:
(a)* * *
(6)(i) The NRC staff shall, except to the extent otherwise stipulated or directed by order of the presiding officer or the Commission, provide to the other parties within 45 days after the issuance of a prehearing conference order following the initial prehearing conference specified in § 2.329 and without awaiting a discovery request:
(A) Except for those documents, data compilations, or other tangible things for which there is a claim of privilege or protected status, all NRC staff documents, data compilations, or other tangible things in possession, custody, or control of the NRC staff that are relevant to disputed issues alleged with particularity in the pleadings, including any Office of Investigations report and supporting exhibits, and any Office of Enforcement documents, data compilations, or other tangible things regarding the order. When any document, data compilation, or other tangible thing that must be disclosed is publicly available from another source, such as the NRC Web site,
(B) A list of all documents, data compilations, or other tangible things otherwise responsive to paragraph (a)(6)(i)(A) of this section for which a claim of privilege or protected status is being made, together with sufficient information for assessing the claim of privilege or protected status of the documents.
(ii) The duty of disclosure under this section is continuing. A disclosure
(7) When any document, data compilation, or other tangible thing that must be disclosed is publicly available from another source, such as at the NRC Web site,
(a) Any party to a proceeding may move, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding. Summary disposition motions must be filed no later than 20 days after the close of discovery. The moving party shall attach to the motion a short and concise statement of the material facts as to which the moving party contends that there is no genuine issue to be heard. Any other party may serve an answer supporting or opposing the motion, with or without affidavits, within 20 days after service of the motion. The party shall attach to any answer opposing the motion a short and concise statement of the material facts as to which it is contended there exists a genuine issue to be heard. All material facts set forth in the statement required to be served by the moving party will be considered to be admitted unless controverted by the statement required to be served by the opposing party. The opposing party may, within 10 days after service, respond in writing to new facts and arguments presented in any statement filed in support of the motion. No further supporting statements or responses to the motion will be entertained.
(d) The petitioner may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a participant pending disposition of the petition for rulemaking.
(c)
(a) During the pendency of any hearing under this subpart, consistent with the NRC staff's findings in its review of the application or matter which is the subject of the hearing and as authorized by law, the NRC staff is expected to promptly issue its approval or denial of the application, or take other appropriate action on the underlying regulatory matter for which a hearing was provided. When the NRC staff takes its action, it must notify the presiding officer and the parties to the proceeding of its action. That notice must include the NRC staff's explanation why the public health and safety is protected and why the action is in accord with the common defense and security despite the pendency of the contested matter before the presiding officer. The NRC staff's action on the matter is effective upon issuance by the staff, except in matters involving:
(a) Unless the presiding officer or the Commission directs otherwise, motions for summary disposition may be submitted to the presiding officer by any party no later than 45 days before the commencement of hearing. The motions must be in writing and must include a written explanation of the basis of the motion. The moving party must attach a short and concise statement of material facts for which the moving party contends that there is no genuine issue to be heard. Motions for summary disposition must be served on the parties and the Secretary at the same time that they are submitted to the presiding officer.
Each party shall file written post-hearing proposed findings of fact and conclusions of law on the contentions addressed in an oral hearing under § 2.1207 or a written hearing under § 2.1208 within 30 days of the close of the hearing or at such other time as the presiding officer directs. Proposed findings of fact and conclusions of law must conform to the format requirements in § 2.712(c).
(d) Pending review and final decision by the Commission, an initial decision resolving all issues before the presiding officer is immediately effective upon issuance except as otherwise provided by this part (
(f) Stays are not available on matters limited to whether a no significant hazards consideration determination was proper in proceedings on power reactor license amendments.
The provisions of this subpart, together with the generally applicable intervention provisions in subpart C of this part, govern all adjudicatory proceedings on an application for the direct or indirect transfer of control of an NRC license when the transfer requires prior approval of the NRC under the Commission's regulations, governing statutes, or pursuant to a license condition. This subpart provides the only mechanism for requesting hearings on license transfer requests, unless contrary case specific orders are issued by the Commission.
(c)(1) Within 15 days of the issuance of the order granting requests for hearing/petitions to intervene and admitting contentions, the NRC staff must notify the presiding officer and the parties whether it desires to participate as a party, and identify the contentions on which it wishes to participate as a party. If the NRC staff desires to be a party thereafter, the NRC staff must notify the presiding officer and the parties, and identify the contentions on which it wishes to participate as a party, and make the disclosures required by § 2.336(b)(3) through (b)(5) unless accompanied by an affidavit explaining why the disclosures cannot be provided to the parties with the notice.
(2) Once the NRC staff chooses to participate as a party, it will have all the rights and responsibilities of a party with respect to the admitted contention/matter in controversy on which the staff chooses to participate.
(b) Written responses, rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants, and proposed written questions for the Presiding Officer to consider for submittal to persons sponsoring testimony submitted under paragraph (a) of this section. These materials shall be filed within 20 days of the filing of the materials submitted under paragraph (a) of this section, unless the Commission or Presiding Officer directs otherwise. Proposed written questions directed to rebuttal testimony for the Presiding Officer to consider for submittal to persons offering such testimony shall be filed within 7 days of the filing of the rebuttal testimony.
(a) During the pendency of any hearing under this subpart, consistent with the NRC staff's findings in its review of the application or matter that is the subject of the hearing and as authorized by law, the NRC staff is expected to promptly issue its approval or denial of the application, or take other appropriate action on the matter that is the subject of the hearing. When the NRC staff takes its action, it must notify the presiding officer and the parties to the proceeding of its action. That notice must include the NRC staff's explanation why the public health and safety is protected and why the action is in accord with the common defense and security despite the pendency of the contested matter before the presiding officer. The NRC staff's action on the matter is effective upon issuance, except in matters involving:
(a)(1) Within 25 days after service of a written initial decision, a party may file a written appeal seeking the Commission's review on the grounds specified in paragraph (b) of this section. Unless otherwise authorized by law, a party must file an appeal with the Commission before seeking judicial review.
(3) Any other party to the proceeding may, within 25 days after service of the appeal, file an answer supporting or opposing the appeal. The answer may not be longer than 20 pages and should concisely address the matters specified in paragraph (a)(2) of this section. The appellant does not have a right to reply. Unless it directs additional filings or oral arguments, the Commission will decide the appeal on the basis of the filings permitted by this paragraph.
Equal Access to Justice Act sec. 203(a)(1) (5 U.S.C. 504 (c)(1)).
(a) Either the applicant or the NRC counsel may seek review of the initial decision on the fee application, or the Commission may decide to review the decision on its own initiative, in accordance with the Commission's review procedures set out in 10 CFR 2.341. The filing of a petition for review is mandatory for a party to exhaust its administrative remedies before seeking judicial review. If neither the applicant nor NRC counsel seeks review and the Commission does not take review on its own initiative, the initial decision on the application shall become a final decision of the NRC 120 days after it is issued.
(b) * * *
(1) The expiration of the 120 day period provided in paragraph (a) of this section; or
(2) If within the 120 day period provided in paragraph (a) of this section the Commission elects to review the decision, the Commission's issuance of a final decision on review of the initial decision.
Atomic Energy Act sec. 161, 1701 (42 U.S.C. 2201, 2297f); Energy Reorganization Act secs. 201, 202, 211 (42 U.S.C. 5841, 5842, 5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note). Subpart A also issued under National Environmental Policy Act secs. 102, 104, 105 (42 U.S.C. 4332, 4334, 4335); Pub. L. 95–604, Title II, 92 Stat. 3033–3041; Atomic Energy Act sec. 193 (42 U.S.C. 2243). Sections 51.20, 51.30, 51.60, 51.80. and 51.97 also issued under Nuclear Waste Policy Act secs. 135, 141, 148 (42 U.S.C. 10155, 10161, 10168). Section 51.22 also issued under Atomic Energy Act sec. 274 (42 U.S.C. 2021) and under Nuclear Waste Policy Act sec. 121 (42 U.S.C. 10141). Sections 51.43, 51.67, and 51.109 also issued under Nuclear Waste Policy Act sec. 114(f) (42 U.S.C. 10134(f)).
(b) When a hearing is held on the proposed action under the regulations in part 2 of this chapter or when the action can only be taken by the Commissioners acting as a collegial body, the appropriate NRC staff director will prepare a proposed finding of no significant impact, which may be subject to modification as a result of review and decision as appropriate to the nature and scope of the proceeding. In such cases, the presiding officer, or the Commission acting as a collegial body, as appropriate, will issue the final finding of no significant impact.
(c) When a hearing is held on the proposed action under the regulations in part 2 of this chapter or when the action can only be taken by the Commissioners acting as a collegial body, the initial decision of the presiding officer or the final decision of the Commissioners acting as a collegial body will constitute the record of decision. An initial or final decision constituting the record of decision will be distributed as provided in § 51.93.
(f) In making the determinations described in paragraph (e) of this section, the environmental impact statement will be deemed modified to the extent that findings and conclusions differ from those in the final statement prepared by the Secretary of Energy, as it may have been supplemented. The initial decision will be distributed to any persons not otherwise entitled to receive it who responded to the request in the notice of docketing, as described in § 51.26(c). If the Commission reaches conclusions different from those of the presiding officer with respect to such matters, the final environmental impact statement will be deemed modified to that extent and the decision will be similarly distributed.
The Executive Director for Operations shall be responsible for overall review of NRC NEPA compliance, except for matters under the jurisdiction of a presiding officer, administrative judge, administrative law judge, Atomic Safety and Licensing Board, or the Commission acting as a collegial body.
Atomic Energy Act secs. 102, 103, 104, 161, 181, 182, 183, 186, 189, 223, 234 (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2236, 2239, 2273, 2282); Energy Reorganization Act secs 201, 202, 206 (42 U.S.C. 5841, 5842); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note).
Section 54.17 also issued under E.O.12829, 3 CFR, 1993 Comp., p.570; E.O. 13526, as amended, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 3 CFR, 1995 Comp., p.391.
A notice of an opportunity for a hearing will be published in the
Atomic Energy Act secs. 53, 57, 62, 63, 65, 81, 161, 181, 182, 183, 223, 234 (42 U.S.C. 2073, 2077, 2092, 2093, 2095, 2111, 2201, 2231, 2232, 2233, 2273, 2282); Energy Reorganization Act secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846), sec. 211, Pub. L. 95–601, sec. 10, as amended by Pub. L. 102–486, sec. 2902 (42 U.S.C. 5851). Pub. L. 95–601, sec. 10, 14, 92 Stat. 2951, 2953 (42 U.S.C. 2021a, 5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, sec. 651(e), Pub. L. 109–58, 119 Stat. 806–810 (42 U.S.C. 2014, 2021, 2021b, 2111).
(c) The Commission shall provide a copy of the notices of opportunity for hearing provided in paragraph (a)(1) of this section to State and local officials or tribal governing bodies specified in § 2.104(c) of this chapter.
Dated at Rockville, Maryland this 20th day of July 2012.
For the Nuclear Regulatory Commission.