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Agricultural Marketing Service, USDA.
Final rule.
The Agricultural Marketing Service (AMS) is amending the Cotton Board Rules and Regulations by increasing the value assigned to imported cotton for calculating supplemental assessments collected for use by the Cotton Research and Promotion Program. An amendment is required to adjust the assessments collected on imported cotton and the cotton content of imported products to be the same as those paid on domestically produced cotton. In addition, AMS is changing the Harmonized Tariff Schedule (HTS) statistical reporting numbers that were amended since the last assessment adjustment.
Shethir M. Riva, Chief, Research and Promotion Staff, Cotton and Tobacco Programs, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia 22406, telephone (540) 361-2726, facsimile (540) 361-1199, or email at
The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.
The Cotton Research and Promotion Act (7 U.S.C. 2101-2118) (Act) provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 12 of the Act, any person subject to an order may file with the Secretary of Agriculture (Secretary) a petition stating that the order, any provision of the plan, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the order or to be exempted therefrom. Such person is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the District Court of the United States in any district in which the person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling, provided a complaint is filed within 20 days from the date of the entry of ruling.
Amendments to the Act were enacted by Congress under Subtitle G of Title XIX of the Food, Agriculture, Conservation, and Trade Act of 1990 (Pub. L. 101-624, 104 Stat. 3909, November 28, 1990). These amendments contained two provisions that authorized changes in the funding procedures for the Cotton Research and Promotion Program.
These provisions are: (1) The authority to assess imported cotton and cotton products; and (2) the termination of the right of cotton producers to demand a refund of assessments.
As amended, the Cotton Research and Promotion Order (7 CFR part 1205) (Order) was approved by cotton producers and importers voting in a referendum held July 17-26, 1991, and the amended Order was published in the
This rule increases the value assigned to imported cotton in the Cotton Board Rules and Regulations (7 CFR 1205.510(b)(2)). The total value of assessments levied is determined using a two-part assessment. The first part of the assessment is levied on the weight of cotton imported at a rate of $1 per 500-pound bale of cotton or $1 per 226.8 kilograms of cotton. The second part of the assessment—known as the supplemental assessment—is levied at a rate of
Section 1205.510(b)(2) of the Cotton Research and Promotion Rules and Regulations provides for the calendar year weighted average price received by U.S. farmers for Upland cotton to represent the value of domestically produced cotton, imported raw cotton and the cotton content of imported cotton-containing products. Use of the same weighted average price ensures that assessments paid on domestically produced cotton and assessments on imported cotton are the same. The source of price statistics is
The current value of imported cotton as published in the
An example of the complete assessment formula and how the figures are obtained is as follows:
One bale is equal to 500 pounds.
One kilogram equals 2.2046 pounds.
One pound equals 0.453597 kilograms.
A 500-pound bale equals 226.8 kg. (500 × .453597).
$1 per bale assessment equals $0.002000 per pound or $0.2000 cents per pound (1/500) or $0.004409 per kg. or $0.4409 cents per kg. (1/226.8).
The 2011 calendar year weighted average price received by producers for Upland cotton is $0.880 per pound or $1.940 per kg. (0.880 × 2.2046).
The total assessment per kilogram of raw cotton is obtained by adding the $1 per bale equivalent assessment of $0.004409 per kg. and the supplemental assessment $0.009700 per kg. which equals $0.014109 per kg.
The current assessment on imported cotton is $0.012665 per kilogram of imported cotton. The new assessment is $0.014109, an increase of $0.001444 per kilogram. This increase reflects the increase in the average weighted price of Upland Cotton Received by U.S. Farmers during the period January through December 2011. The Import Assessment Table in section 1205.510(b)(3) indicates the conversion factors used to estimate cotton equivalent quantities and the total assessment per kilogram due for each HTS number subject to assessment. Since the weighted average price of cotton that serves as the basis of the supplemental assessment calculation has changed, total assessment rates reported in this table have been revised.
AMS also compared the current import assessment table with the U.S. International Trade Commission's (ITC) 2012 HTS and information from U.S. Customs and Border Protection and identified HTS statistical reporting numbers that have been updated and removed. In addition, AMS contacted USDA's Economic Research Service, who provided the updated cotton conversion factors for the new or updated HTS codes.
A proposed rule was published on June 12, 2012, with a comment period of June 12, 2012, through July 12, 2012 (77 FR 34855). AMS received three comments from interested organizations representing segments of the cotton or manufacturing industry. All comments received are available for public inspection at Cotton and Tobacco Programs, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia, 22406, during regular business hours. Comments may also be found at
One commenter, who represents the national trade organization representing the U.S. raw cotton industry and its membership includes producers, inners, warehousemen, cottonseed crushers and dealers, private and cooperative merchants, and textile manufacturers, supported the proposed rule and the formula developed by the Food, Agriculture, Conservation and Trade Act of 1990. This commenter urged AMS to expeditiously implement the new rate in order to properly assess imported cotton and cotton containing products at the new rate.
Two other commenters did not support the increased assessment. One of the opposing commenters, who represents 200 retailers, product manufacturers, and service suppliers, questioned the need for another increase after the increase in 2011 and stated that this increase would further escalate costs and unfairly burden many companies within the cotton supply chain. This commenter cited that this increase combined with the 2011 increase would add an additional 30 percent to the fee that retailers pay for imported cotton, costing up to hundreds of thousands of dollars a year per company.
Section 1205.510, “Levy of assessments,” provides “the rate of the supplemental assessment on imported cotton will be the same as that levied on cotton produced within the United States.” In addition, section 1205.510 provides that the 12-month average of monthly weighted average prices received by U.S. farmers will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton. AMS used the 2011 price statistics found in Agricultural Prices, a publication of the National Agricultural Statistics Service of the Department of Agriculture, to calculate the average weighted price and convert it to arrive at the new rate of 1.4109 cents per kilogram. Therefore, AMS has made no changes to the proposed rule based on this comment.
The other opposing commenter, whose organization represents the entire spectrum of international trade across all industry sectors, stated its concern that the importer fee was paid into the U.S. Treasury where only a portion of the money collected is appropriated for its stated purpose. The commenter stated its belief that the balance of such funds is often used to offset budget deficits or designated for other uses. In addition, the commenter stated that it is difficult for companies to absorb any increased costs. No monies are transferred into the general fund of the U.S. Treasury. All funds collected by the Board are used for the Cotton Research and Promotion Program in accordance with the Act. Assessments on domestic cotton production and cotton imports are maintained by the Cotton Board, who is charged with administering the Cotton Research and Promotion Program.
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 601-612], AMS examined the economic impact of this rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such action so that small businesses will not be unduly or disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (importers) as having receipts of no more than $7,000,000. An estimated 13,000 importers are subject to the rules and regulations issued pursuant to the Cotton Research and Promotion Order. Most are considered small entities as defined by the Small Business Administration.
This final rule only affects importers of cotton and cotton-containing products, and it raises the assessments paid by the importers under the Cotton Research and Promotion Order. The current assessment on imported cotton is $0.012665 per kilogram, which is equivalent to 1.088 cents per kilogram, of imported cotton. The new assessment is $0.014109 which is equivalent to 1.4109 cents per kilogram and was calculated based on the 12-month average of monthly weighted average prices received by U.S. cotton farmers. Section 1205.510, “Levy of assessments,” provides “the rate of the supplemental assessment on imported cotton will be the same as that levied on cotton produced within the United States.” In addition, section 1205.510 provides that the 12-month average of monthly weighted average prices received by U.S. farmers will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton. AMS used the 2010 price statistics found in
Under the Cotton Research and Promotion Program, assessments are used by the Cotton Board to finance
Importers with line-items appearing on U.S. Customs and Border Protection documentation with value of the cotton contained therein results of an assessment of two dollars ($2.00) or less will not be subject to assessments. In addition, imported cotton and products may be exempt from assessment if the cotton content of products is U.S. produced, cotton other than Upland, or imported products that are eligible to be labeled as 100 percent organic under the National Organic Program (7 CFR part 205) and who is not a split operation.
There are no Federal rules that duplicate, overlap, or conflict with this rule.
In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act (PRA) (44 U.S.C. chapter 35) the information collection requirements contained in the regulation that needed to be amended have been previously approved by OMB and were assigned control number 0581-0093. This rule does not result in a change to the information collection and recordkeeping requirements previously approved.
Advertising, Agricultural research, Cotton, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble 7 CFR part 1205 is amended as follows:
7 U.S.C. 2101-2118.
(b) * * *
(2) The 12-month average of monthly weighted average prices received by U.S. farmers will be calculated annually. Such weighted average will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton and will be expressed in kilograms. The value of imported cotton for the purpose of levying this supplemental assessment is 1.4109 cents per kilogram.
(3) * * *
(ii) * * *
7 U.S.C. 2101-2118.
Nuclear Regulatory Commission.
Final rule and regulatory guide, issuance.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is amending its regulations related to verification of nuclear power plant construction activities through inspections, tests, analyses, and acceptance criteria (ITAAC) under a combined license, and issuing a revision to Regulatory Guide (RG) 1.215, “Guidance for ITAAC Closure Under 10 CFR [Title 10 of the
The effective date is September 27, 2012.
Please refer to Docket ID NRC-2010-0012 when contacting the NRC about the availability of information for this final rule. You can 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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•
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Mr. Earl R. Libby, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-0522; email:
The Commission first issued 10 CFR part 52, “Early Site Permits; Standard Design Certifications; and Combined Licenses for Nuclear Power Reactors” on April 18, 1989 (54 FR 15372). Section 52.99, “Inspection during construction,” was included to make it clear that the NRC's inspection carried out during construction under a combined license would be based on ITAAC proposed by the applicant, approved by the NRC staff, and incorporated in the combined license. At that time, the Commission made it clear that, although 10 CFR 52.99 envisioned a “sign-as-you-go” process in which the NRC staff would sign off on inspection units and notice of the staff's sign-off would be published in the
On August 28, 2007 (72 FR 49352), the Commission revised 10 CFR part 52 to enhance the NRC's regulatory effectiveness and efficiency in implementing its licensing and approval processes. In that revision, the NRC amended 10 CFR 52.99 to require licensees to notify the NRC that the prescribed inspections, tests, or analyses in the ITAAC have been completed and that the acceptance criteria have been met. The revision also requires that these notifications contain sufficient information to demonstrate that the prescribed inspections, tests, or analyses have been performed and that the prescribed acceptance criteria have been met. The statement of considerations for the 2007 rule indicated that this requirement would ensure that combined license applicants and holders were aware that it was the licensee's burden to demonstrate compliance with the ITAAC and that the notification of ITAAC completion will contain more information than just a simple statement that the licensee
Under Section 185b of the AEA and 10 CFR 52.97(b), a combined license for a nuclear power plant (a “facility”) must contain those ITAAC that are “necessary and sufficient to provide reasonable assurance that the facility has been constructed and will be operated in conformity with” the license, the AEA, and the NRC regulations. Following issuance of the combined license, Section 185b of the AEA and 10 CFR 52.99(e) require that the Commission “ensure that the prescribed inspections, tests, and analyses are performed.” Finally, before operation of the facility, Section 185b of the AEA and 10 CFR 52.103(g) require that the Commission find that the “prescribed acceptance criteria
As currently required by 10 CFR 52.99(c)(1), the licensee must submit ITAAC closure notifications containing “sufficient information to demonstrate that the prescribed inspections, tests, and analyses have been performed and that the associated acceptance criteria have been met.” These notifications perform two functions. First, they alert the NRC to the licensee's completion of the ITAAC
After completing the 2007 rulemaking, the NRC began developing guidance on the ITAAC closure process and the requirements under 10 CFR 52.99. In October 2009, the NRC issued regulatory guidance for the implementation of the revised 10 CFR 52.99 in RG 1.215, “Guidance for ITAAC Closure Under 10 CFR Part 52.” This RG endorsed guidance developed by the Nuclear Energy Institute (NEI) in NEI 08-01, “Industry Guideline for the ITAAC Closure Process Under 10 CFR part 52,” Revision 3, issued January 2009 (ADAMS Accession No. ML090270415).
After considering information presented by industry representatives in a series of public meetings, the NRC realized that some additional implementation issues were left unaddressed by the various provisions in 10 CFR part 52. In particular, the NRC determined that the combined license holder should provide additional notifications to the NRC following the notification of ITAAC completion currently required by 10 CFR 52.99(c)(1). The NRC refers to the time after this ITAAC closure notification, but before the date the Commission makes the finding under 10 CFR 52.103(g), as the ITAAC maintenance period. Most recently, the NRC held two public meetings in March 2010 to discuss draft proposed rule text that it made available to the public in February 2010. The NRC considered feedback given from external stakeholders during those meetings in its development of this final rule. Finally, in March 2010, the NRC issued Inspection Procedure 40600, “Licensee Program for ITAAC Management,” which provides guidance to verify that licensees have implemented ITAAC maintenance programs to ensure that structures, systems, and components continue to meet the ITAAC acceptance criteria until the Commission makes the finding under 10 CFR 52.103(g) allowing operation.
The NRC published a proposed rule on the Requirements for Maintenance of Inspections, Tests, Analyses and Acceptance Criteria in the
The NRC received one public comment submission on the proposed rule containing 11 comments from one industry organization, NEI (ADAMS Accession No. ML11208C708). The NRC received one public comment submission, from NEI, containing 22 comments on the RG (ADAMS Accession No. ML11209C487). Comments on the proposed rule are discussed separately from the comments on the draft regulatory guide.
There were two types of comments on the proposed rule:
1. Comments that were general in nature to the proposed rule language.
2. Comments that were specific in nature to the proposed rule supplementary information.
The NEI submission contained two general comments on the proposed rule and nine specific comments on the proposed rule supplementary information. The NRC has carefully considered the public comments received during the comment period and is adopting a final rule that is substantially similar to the proposed rule with one change to § 52.99(e)(2). The NEI generally supported the approach and objective of the proposed rule and the associated regulatory guidance.
All comments are identified uniquely by using the formation [Comment X, p. Y] where [Comment X] represents the sequential comment number and [p. Y] represents the comment submission page number.
The nine specific comments received on the proposed rule contained recommendations for changes to the supplementary information to correctly reflect common terminology between the rule supplementary information, the associated RG 1.215 and the industry guidance contained within Revision 4 of NEI 08-01 (ADAMS Accession No. ML102010051). These nine specific comments all addressed discussion in the statement of considerations (SOC) (the
The NRC published the draft regulatory guide for the proposed rule, RG 1.215, “Guidance for ITAAC Closure Under 10 CFR Part 52” (DG-1250) in the
The NRC received 1 public comment submission on the regulatory guide containing 25 comments from 1 industry organization, NEI (ADAMS Accession No. ML11209C487). The NRC's responses to the public comments are contained in “Response to Public Comments on Draft Regulatory Guide DG-1250 proposed Revision 1 of RG 1.215, `Guidance for ITAAC Closure Under 10 CFR Part 52'” (ADAMS Accession No. ML11284A006).
The NRC is requiring the following new notifications with respect to ITAAC closure:
• ITAAC post-closure notification, and
• All ITAAC complete notification.
In general, the reasons for these new notifications are analogous to the reasons presented in the 2007 rulemaking for the existing 10 CFR 52.99(c) notifications: (1) To ensure that the NRC has sufficient information, in light of new information developed or identified after the ITAAC closure notification under 10 CFR 52.99(c)(1), to complete all of the activities necessary for the NRC to make a determination on ITAAC; and (2) to ensure that interested persons have access to information on ITAAC at a level of detail sufficient to address the AEA Section 189a(1)(B) threshold for requesting a hearing. After evaluating the various means of ensuring that the Commission has sufficient information to make a determination on ITAAC, and that interested persons have access to sufficient ITAAC information, the NRC has provided a rule augmented by guidance. The details of timing and content of the new notifications are captured in guidance that was issued for public comment simultaneously with the proposed rule, as discussed in more detail in Section V, “Availability of Regulatory Guidance,” of this document. The NRC believes that this approach allows more flexibility to adjust the guidance based on lessons learned during early implementation of the ITAAC process under the first combined licenses. Based upon the NRC's experience with the overall NRC oversight and verification of ITAAC, the notification provisions of the rule, the ITAAC hearing process, and the process for making the 10 CFR 52.103(g) finding, the NRC may revise and supplement the final guidance on the timing and content of notifications. The NRC notes that it would not rely solely on the existence of this rulemaking as a primary basis for the 10 CFR 52.103(g) finding. Rather, the NRC would use a holistic review using results from the NRC's construction inspection program and ITAAC closure review process as primary factors supporting a conclusion that the acceptance criteria in the combined license are met.
Each of the notification requirements in this rulemaking, and the bases for each of the requirements, are described in Section III.B, “Additional ITAAC Notifications,” of this document. The NRC also included several editorial changes to 10 CFR 52.99 in paragraphs (b), (c)(1), final (c)(3) (former (c)(2)), and (d)(1). In all of these cases, the NRC is replacing the phrase “acceptance criteria have been met” with the phrase “acceptance criteria are met” for consistency with the wording of the requirement in 10 CFR 52.103(g) on the Commission's ITAAC finding, which is derived directly from wording in the AEA. In addition, the NRC changed 10 CFR 52.99(d)(2) to replace the phrase “ITAAC has been met” with the phrase “prescribed acceptance criteria are met” for consistency with the wording in 10 CFR 52.99(d)(1).
One essential element in ensuring the maintenance of successfully completed ITAAC involves the use of established licensee programs such as the Quality Assurance Program, Problem Identification and Resolution Program, Maintenance/Construction Program, and Design and Configuration Management Program. Each program credited with supporting the maintenance of completed ITAAC should contain attributes that maintain the validity of the ITAAC determination basis. These program attributes include the following:
• Licensee screening of activities and events for impact on ITAAC;
• Licensee determination of whether supplemental ITAAC notification is required; and
• Licensee supplementation of the ITAAC completion package, as appropriate, to demonstrate that the acceptance criteria continue to be met.
The NRC expects these programs to be fully implemented and effective before the licensee takes credit for them as an appropriate means of supporting ITAAC maintenance. These programs will be subject to NRC inspection.
The first new notification is contained in 10 CFR 52.99(c)(2), “ITAAC post-closure notifications,” and would be required following the licensee's ITAAC closure notifications under 10 CFR 52.99(c)(1) until the Commission makes the finding under 10 CFR 52.103(g). This provision in 10 CFR 52.99(c)(2) would require the licensee to provide the NRC with timely notification of new information materially altering the basis for determining that either inspections, tests, or analyses were performed as required, or that acceptance criteria are met (referred to as the
The licensee is responsible for maintaining the validity of the ITAAC conclusions after completion of the ITAAC. If the ITAAC determination basis is materially altered, the licensee is expected to notify the NRC. Through public workshops and stakeholder interaction, the NRC developed thresholds to identify when activities would materially alter the basis for determining that a prescribed inspection, test, or analysis was performed as required, or finding that a prescribed acceptance criterion is met. One obvious case is that a notification under paragraph (c)(2) is required to correct a material error or omission in the original ITAAC closure notification. The “materially altered determination” is further developed in RG 1.215 and in the industry guidance in NEI 08-01, Revision 4.
Section 52.6, “Completeness and accuracy of information,” paragraph (a), requires that information provided to the Commission by a licensee be complete and accurate in all material respects. However, it might be the case that the original closure notification was complete and accurate when sent, but subsequent events materially alter the ITAAC determination basis. Also, a
1. Material errors and omissions in ITAAC closure notifications, relevant to the accuracy and completeness of the documented basis for the Commission's finding on ITAAC, may nonetheless be determined in isolation by a licensee as not having a significant implication for public health and safety or common defense and security.
2. A Commission finding of compliance with acceptance criteria in the ITAAC at the time of the finding is required, under Section 185b of the AEA, in order for the combined license holder to commence operation.
3. The addition of specific reporting requirements addressing information relevant and material to the ITAAC finding ensures that the NRC will get the necessary reports as a matter of regulatory requirement and allows the NRC to determine the timing and content of these reports so that they serve the regulatory needs of the NRC.
Therefore, the NRC intends that these issues will be reported under 10 CFR 52.99(c)(2). In addition to the reporting of material errors and omissions, the NRC has identified other circumstances in which reporting under this provision would be required (i.e., reporting thresholds). These reporting thresholds are described in more detail in Section IV, “Section-by-Section Analysis,” of this document.
When making the 10 CFR 52.103(g) finding, the NRC must have sufficient information to determine that the relevant acceptance criteria are met despite the new information prompting the notification under paragraph (c)(2). Apart from the NRC's use of the information, the NRC also believes that public availability of such information is necessary to ensure that interested persons will have sufficient information to review when preparing a request for a hearing under 10 CFR 52.103, comparable to the information provided under paragraph (c)(1), as described in the Statement of Considerations for the 2007 part 52 rulemaking. See August 28, 2007; 72 FR 49352, at 49384 (second and third columns). Accordingly, the NRC requires that after a licensee identifies new information materially altering the ITAAC determination basis, the licensee must then submit what is essentially a “resolution” notification to the NRC in the form of an ITAAC post-closure notification. The ITAAC post-closure notification, described in paragraph (c)(2), requires the licensee to submit a written notification of the resolution of the circumstances surrounding the identification of new information materially altering the ITAAC determination basis. The ITAAC post-closure notification must contain sufficient information demonstrating that, notwithstanding the information that prompted notification, the prescribed inspections, tests, and analyses have been performed as required and the prescribed acceptance criteria are met. The ITAAC post-closure notifications should explain the need for the notification, outline the resolution of the issue, and confirm that the ITAAC acceptance criteria continue to be met. The ITAAC post-closure notifications must include a level of detail similar to the level of information required in initial ITAAC closure notifications under 10 CFR 52.99(c)(1).
Section 52.99(c)(2) states that licensees must make the notification “in a timely manner.” Further discussion of what the NRC considers “timely” can be found in the NRC guidance being issued simultaneously with this final rule, as discussed in more detail in Section V, “Availability of Regulatory Guidance,” of this document.
The NRC provides that the notification be available for public review under paragraph (e)(2). This helps ensure public availability and accessibility of important information on ITAAC closure. Further explanation of the basis for the availability requirement is presented under the discussion on 10 CFR 52.99(e)(2) in Section IV, “Section-by-Section Analysis,” of this document.
Events that affect completed ITAAC could involve activities that include, but are not limited to, maintenance and engineering programs, or design changes. The NRC expects that licensees will carry out these activities under established programs to maintain ITAAC conclusions and that no post-closure notification will be necessary in most instances. The NRC can have confidence that prior ITAAC conclusions are maintained, as long as the ITAAC determination basis established by the original ITAAC closure notification is not materially altered. If the ITAAC determination basis is not materially altered, then licensee activities will remain below the notification threshold of 10 CFR 52.99(c)(2). If the ITAAC determination basis is materially altered, then the licensee is required to notify the NRC under 10 CFR 52.99(c)(2).
Although the NRC is requiring that licensees notify the NRC of information materially altering the ITAAC determination basis only after the licensee has evaluated and resolved the issue prompting the notification, the NRC encourages licensees to communicate with the NRC early in its evaluation process. The purpose of this early communication would be to alert the NRC staff to the fact that additional activities may be scheduled that affect a structure, system, or component (including physical security hardware) or program element for which one or more ITAAC have been closed. This will allow the NRC inspection staff to discuss the licensee's plans for resolving the issue to determine if the staff wants to observe any of the upcoming activities for the purpose of making a future staff determination about whether the acceptance criteria for those ITAAC continue to be met.
Another notification that the NRC is requiring is the “all ITAAC complete” notification under 10 CFR 52.99(c)(4). The purpose of this notification is to facilitate the required Commission finding under 10 CFR 52.103(g) that the acceptance criteria in the combined license are met. After, or concurrent with, the last ITAAC closure notification required by 10 CFR 52.99(c)(1), the licensee is required to notify the NRC that all ITAAC are complete. When the licensee submits the all ITAAC complete notification, the NRC would expect that all activities requiring ITAAC post-closure notifications have been completed and that the associated ITAAC determination bases have been updated.
To support the Commission's finding under 10 CFR 52.103(g) that the acceptance criteria in the combined license are met, the NRC staff will, if and when appropriate, send a recommendation to the Commission to make a finding that all of the specified acceptance criteria are met. The staff will consider that all acceptance criteria “are met” if both of the following conditions hold:
• All ITAAC were verified to be met at one time; and
• The licensee provides confidence, in part through the notifications in 10 CFR 52.99(c), that the ITAAC determination bases have been maintained and the ITAAC acceptance criteria continue to be met; and the NRC has no reasonable information to the contrary.
This approach will allow licensees to have ITAAC-related structures, systems, or components, or security or emergency preparedness related hardware, undergoing maintenance or certain other activities at the time of the 10 CFR 52.103(g) finding, if the programs credited with maintaining the validity of completed ITAAC guide those activities and the activities are not so significant as to exceed a threshold for reporting. If a reporting threshold has been exceeded, then the NRC would need to evaluate the licensee's ITAAC post-closure notification to determine whether the ITAAC continue to be met. Reporting thresholds are discussed in more detail in Section IV, “Section-by-Section Analysis,” of this document.
This final rule does not contain specific ITAAC documentation and record retention requirements. Consistent with regulatory provisions such as 10 CFR part 50, “Domestic Licensing of Production and Utilization Facilities,” Appendix B, “Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants,” licensees are expected to prepare and retain records supporting the vast majority of ITAAC processes, including the activities supporting the notifications that are required by this final rule. Accordingly, the NRC has not included specific documentation and record retention requirements in this final rule. If the NRC inspections disclose substantial issues with licensees' records on ITAAC maintenance, the NRC will revisit the need for explicit documentation and record retention requirements on ITAAC maintenance.
Section 52.99(e)(1) requires that the NRC publish in the
The 2007 10 CFR part 52 rulemaking amended 10 CFR 2.340, “Initial decision in certain contested proceedings; immediate effectiveness of initial decisions; issuance of authorizations, permits, and licenses,” to clarify, among other things, the scope of the presiding officer's decision in various kinds of NRC proceedings, and remove the requirement for direct Commission involvement in all production and utilization facility licensing proceedings.
Section 2.340(j) was intended to address these matters in connection with the Commission finding on acceptance criteria and any associated hearing under 10 CFR 52.103. In the course of developing this final rule, the NRC determined that 10 CFR 2.340(j) contains several inconsistencies with the statutory language in Section 185b of the AEA, and could more clearly describe possible ways in which a presiding officer decision may lead to a Commission decision on acceptance criteria. The changes, together with the bases for the changes, are described in the following paragraphs.
Section 2.340(j) currently states that the Commission makes a finding under 10 CFR 52.103(g) that acceptance criteria “have been or will be met.” This is incorrect; the Commission's finding under 10 CFR 52.103(g) is that the acceptance criteria “are met,” which is the statutory requirement under Section 185b of the AEA. To correct this error, the NRC has amended the introductory language of 10 CFR 2.340(j) to use the correct phrase, “acceptance criteria * * * are met * * *.”
In addition, 10 CFR 2.340(j), as currently written, does not distinguish among the various circumstances in a contested proceeding where a presiding officer's decision (that acceptance criteria have been met, or will be met) is followed by the overall finding under 10 CFR 52.103(g) that acceptance criteria are met (as required by Section 185b of the AEA). It is not clear from the current language of § 2.340(j) that the presiding officer's initial decision on a contention that acceptance criteria have been met or will be met, does not obviate the need for the Commission (or the appropriate Director) to make the required finding (under Section 185b of the AEA and 10 CFR 52.103(g)) that the acceptance criteria are met. To illustrate this point by counter example, the presiding officer could make, in the initial decision, a “predictive finding” that acceptance criteria “will be met.” Thereafter, the combined license holder would complete the prescribed inspection, test and/or analysis and inform the NRC under § 52.99 that the acceptance criteria have been met. Nonetheless, the Commission (or the appropriate Director) may determine—based on,
The primary changes on ITAAC maintenance by the NRC in this rulemaking are to 10 CFR 52.99. The changes to 10 CFR 2.340 are corrections.
Paragraph (j) was amended to allow the Commission (or the appropriate NRC Office Director) in a contested proceeding to make the finding under 10 CFR 52.103(g) that the acceptance criteria in a combined license are met, under certain circumstances that are delineated in greater detail in paragraphs (j)(1) through (4). This compares with the current rule, which
Paragraph (j)(1) clarifies that the Commission may not make the overall 10 CFR 52.103(g) finding unless it is otherwise able to find that all uncontested acceptance criteria (i.e., “acceptance criteria not within the scope of the initial decision of the presiding officer”) are met. The phrase “otherwise able to make” conveys the NRC's determination that the Commission's process for supporting a Commission finding on uncontested acceptance criteria is unrelated to and unaffected by the timing of the presiding officer's initial decision on contested acceptance criteria.
Paragraph (j)(2) clarifies that a presiding officer's initial decision, which finds that acceptance criteria have been met, is a necessary, but not sufficient prerequisite for the Commission to make a finding that the contested acceptance criteria (i.e., the criteria that are the subject of the presiding officer's initial decision) are met. The Commission must thereafter—even if the presiding officer's initial decision finds that the contested acceptance criteria have been met—be able to make a finding that the contested criteria are met after considering: 1) information submitted in the licensee notifications pursuant to 10 CFR 52.99, and 2) the NRC staff's findings, with respect to these notifications, to issue the overall 10 CFR 52.103 finding. By using the word “thereafter,” the NRC intends to emphasize that the Commission would not make a finding that contested acceptance criteria are met in advance of the presiding officer's initial decision on those acceptance criteria.
Paragraph (j)(3) expresses the same concept as paragraph (j)(2), but as applied to findings that acceptance criteria will be met. Thus, even if a presiding officer's initial decision finds that the contested acceptance criteria will be met, the Commission must thereafter be able to make a finding that the contested criteria are met after considering: (1) Information submitted in an ITAAC closure notification pursuant to 10 CFR 52.99(c)(1); 2) information submitted in the licensee notifications pursuant to 10 CFR 52.99(c)(2) and (c)(4); and 3) the NRC staff's findings with respect to such notifications, to issue the overall 10 CFR 52.103 finding.
Paragraph (j)(4) is the same as the existing provision in 10 CFR 2.340(j)(2). This paragraph provides that the Commission may make the 10 CFR 52.103(g) finding notwithstanding the pendency of a petition for reconsideration under 10 CFR 2.345, a petition for review under 10 CFR 2.341, a motion for a stay under 10 CFR 2.342, or a petition under 10 CFR 2.206.
The NRC notes that 10 CFR 2.340(j) is not intended to be an exhaustive “roadmap” to a possible 10 CFR 52.103(g) finding that acceptance criteria are met. For example, this provision does not directly address what must occur for the Commission to make a 10 CFR 52.103(g) finding where the presiding officer finds, with respect to a contention, that acceptance criteria have not been or will not be met. The NRC also notes that this provision applies only to contested proceedings. If there is no hearing under 10 CFR 52.103 or if the hearing ends without a presiding officer's initial decision on the merits (e.g., a withdrawal of the sole party in a proceeding), then 10 CFR 2.340(j) does not govern the process by which the Commission (or the appropriate staff Office Director) makes the 10 CFR 52.103(g) finding.
Although the NRC is not making changes to every paragraph under 10 CFR 52.99, for simplicity, this rulemaking would replace the section in its entirety. Therefore, the NRC is providing a section-by-section discussion for every paragraph in 10 CFR 52.99. For those paragraphs where little or no change is being proposed, the NRC is repeating the section-by-section discussion from the 2007 major revision to 10 CFR part 52 with editorial and conforming changes, as appropriate.
The purpose of this section is to present the requirements to support the NRC's inspections during construction, including requirements for ITAAC schedules and notifications and for NRC notices of ITAAC closure. The title of this section was changed from
The NRC is not making any changes to § 52.99(a). Paragraph (a) requires that the licensee submit to the NRC, no later than 1 year after issuance of the combined license or at the start of construction as defined at 10 CFR 50.10, whichever is later, its schedule for completing the inspections, tests, or analyses in the ITAAC. This provision also requires the licensee to submit updates to the ITAAC schedule every 6 months thereafter and, within 1 year of its scheduled date for initial loading of fuel, licensees must submit updates to the ITAAC schedule every 30 days until the final notification is provided to the NRC under § 52.99(c)(1). The information provided by the licensee will be used by the NRC in developing the NRC's inspection activities and activities necessary to support the Commission's finding whether all of the ITAAC are met prior to the licensee's scheduled date for fuel load. Even in the case where there were no changes to a licensee's ITAAC schedule during an update cycle, the NRC expects the licensee to notify the NRC that there have been no changes to the schedule.
The NRC is making an editorial change to the last sentence of § 52.99(b) to replace the words “have been met” with “are met” for consistency with the requirements of Section 185b of the AEA, as implemented in 10 CFR 52.103(g). The purpose of the requirement in 10 CFR 52.99(b) is to clarify that an applicant may proceed at its own risk with design and procurement activities subject to ITAAC, and that a licensee may proceed at its own risk with design, procurement, construction, and preoperational testing activities subject to an ITAAC, even though the NRC may not have found that any particular ITAAC are met.
The NRC has made editorial changes in § 52.99(c)(1) to replace the words “have been met” with “are met.” Section 52.99(c)(1) requires the licensee to notify the NRC that the prescribed inspections, tests, and analyses have been performed and that the prescribed acceptance criteria are met. Section 52.99(c)(1) further requires that the notification contain sufficient information to demonstrate that the prescribed inspections, tests, and analyses have been performed and that the prescribed acceptance criteria are met.
The NRC has renumbered current § 52.99(c)(2) as paragraph (c)(3). In addition, the NRC has made an editorial change to the last sentence in final § 52.99(c)(3) (former 10 CFR 52.99(c)(2))
Section 52.99(c) ensures that: (1) The NRC has sufficient information to complete all of the activities necessary for the Commission to make a finding as to whether all of the ITAAC are met prior to initial operation, and (2) interested persons will have access to information on both completed and uncompleted ITAAC at a level of detail sufficient to address the AEA Section 189a(1)(B) threshold for requesting a hearing on acceptance criteria. It is the licensee's burden to demonstrate compliance with the ITAAC, and the NRC expects the information submitted under paragraph (c)(1) to contain more than just a simple statement that the licensee believes the ITAAC has been completed and the acceptance criteria met. The NRC would expect the notification to be sufficiently complete and detailed so that a reasonable person could understand the basis for the licensee's representation that the inspections, tests, and analyses have been successfully completed and the acceptance criteria are met. The term “sufficient information” would require, at a minimum, a summary description of the basis for the licensee's conclusion that the inspections, tests, or analyses have been performed and that the prescribed acceptance criteria are met.
Furthermore, with respect to uncompleted ITAAC, it is the licensee's burden to demonstrate that it will comply with the ITAAC, and the NRC would expect the information that the licensee submits under proposed paragraph (c)(3) to be sufficiently detailed so that the NRC staff can determine what activities it will need to undertake to determine if the acceptance criteria for each of the uncompleted ITAAC are met, once the licensee notifies the NRC that those ITAAC have been successfully completed and their acceptance criteria met. The term “sufficient information” requires, at a minimum, a summary description of the basis for the licensee's conclusion that the inspections, tests, or analyses will be performed and that the prescribed acceptance criteria will be met. In addition, “sufficient information” includes, but is not limited to, a description of the specific procedures and analytical methods to be used for performing the inspections, tests, and analyses and determining that the acceptance criteria are met.
The NRC notes that, even though it did not include a provision requiring the completion of all ITAAC by a certain time prior to the licensee's scheduled fuel load date, the NRC staff will require some period of time to perform its review of the last ITAAC once the licensee submits its notification that the ITAAC has been successfully completed and the acceptance criteria met. In addition, the Commission itself will require some period of time to perform its review of the staff's conclusions regarding all of the ITAAC and the staff's recommendations regarding the Commission finding under 10 CFR 52.103(g).
The NRC has added a new paragraph (c)(2) that would require the licensee to notify the NRC, in a timely manner, of new information that materially alters the basis for determining that either inspections, tests, or analyses were performed as required, or that acceptance criteria are met. The notification must contain sufficient information to demonstrate that, notwithstanding the new information, the prescribed inspections, tests, or analyses have been performed as required, and the prescribed acceptance criteria are met. Fundamentally, those circumstances requiring notification under proposed paragraph (c)(2) fall into the following two categories:
• The information presented or referenced in the original 10 CFR 52.99(c)(1) notification is insufficient, either because it omits material information, or because the information is materially erroneous or incorrect, and the licensee discovers or determines there is a material omission or error after filing the original 10 CFR 52.99(c)(1) notification.
• The information presented or referenced in the original 10 CFR 52.99(c)(1) notification was complete (i.e., not omitting material information) and accurate (i.e., not materially erroneous), but there is new material information with respect to the subject of the original 10 CFR 52.99(c)(1) notification.
The term “materially altering” refers to situations in which there is information not contained in the 10 CFR 52.99(c)(1) notification that “has a natural tendency or capability to influence an agency decision maker” in either determining whether the prescribed inspection, test, or analysis was performed as required, or finding that the prescribed acceptance criterion is met. See Final Rule; Completeness and Accuracy of Information, December 31, 1987; 52 FR 49362, at 49363. Applying this concept in the context of 10 CFR 52.99(c), information for which notification would be required under paragraph (c)(2) is that information which, considered by itself or when considered in connection with information previously submitted or referenced by the licensee in a paragraph (c)(1) notification, relates to information which is necessary for any of the following:
• The licensee to assert that the prescribed inspections, tests, and analyses have been performed and the acceptance criteria are met;
• The NRC staff to determine if (and provide a recommendation to the Commission as to whether) the prescribed inspections, tests, and analyses were performed and the acceptance criteria are met; or
• The Commission to find that the acceptance criteria are met, as required by Section 185b of the AEA and 10 CFR 52.103(g).
The term “new information” falls into three categories:
• New information (i.e., a “discovery” or new determination identified after the 10 CFR 52.99(c)(1) notification) about the accuracy of material information provided in, referenced by, or necessary to support representations made in that notification.
• New information (i.e., a “discovery” or new determination identified after the 10 CFR 52.99(c)(1) notification) that previously existing information should have been, but was not provided, in the notification or referenced in the supporting documentation (i.e., an omission of material information).
• Information on a “new” event or circumstance (i.e., an event or circumstance occurring after the 10 CFR 52.99(c)(1) notification) that materially affects the accuracy or completeness of the basis—as reported or relied upon in
Applying these concepts, the NRC believes that the circumstances for which reporting under this provision would be required include:
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Additional guidance on implementing these reporting thresholds is contained in the revision to RG 1.215, being issued simultaneously with this final rule. This guidance is discussed further in Section V, “Availability of Regulatory Guidance,” of this document.
Paragraph (c)(2) would require the licensee to submit an ITAAC post-closure notification documenting the resolution of the circumstances surrounding the identification of new material information. By “resolution,” the NRC means: (1) The completion of the licensee's technical evaluation of the issue and the determination as to whether the prescribed inspection, test, or analysis was performed as required; (2) licensee completion of any necessary corrective or supplemental actions; (3) licensee documentation of the issue and any necessary corrective or supplemental actions in order to bring the ITAAC determination basis up to date; and (4) ultimate licensee determination about whether the affected acceptance criteria continue to be met.
The information provided in the notification should be at a level of detail comparable to the ITAAC closure notification under paragraph (c)(1). The dual purposes of the proposed paragraph (c)(2) notification, as described in Section III.B, “Additional ITAAC Notifications,” of this document, are comparable to the purposes of the ITAAC closure notification in paragraph (c)(1). Thus, the NRC believes that the considerations for the content of the ITAAC closure notification, as discussed in the final 2007 10 CFR part 52 rule, apply to the paragraph (c)(2) notifications. See 72 FR 49450; August 28, 2007 (second column). It is the licensee's burden to demonstrate compliance with the ITAAC, taking into account any new information that materially alters the determination that a prescribed inspection, test, or analysis was performed as required or that a prescribed acceptance criterion is met. The NRC expects the paragraph (c)(2) notification to contain more than just a simple statement that the licensee has concluded, despite the material new information, that the prescribed inspection, test, or analysis was performed as required and that a prescribed acceptance criterion is met. The NRC expects the notification to be sufficiently complete and detailed such that a reasonable person could understand the basis for the licensee's determination in the paragraph (c)(2) notification. The term “sufficient information” is comparable to the meaning given to that term in paragraph (c)(1), and requires, at a minimum, a summary description of the basis for the licensee's determination. In addition, “sufficient information” includes, but is not limited to, a description of the specific procedures and analytical methods used or relied upon to develop or support the licensee's determination. The paragraph (c)(2) notification must be in writing, and the records on which it is based should be retained by the licensee to support possible NRC inspection. Licensees should use the same process for submitting ITAAC post-closure notifications as would be used to submit initial ITAAC closure notifications. The NRC is issuing guidance on implementation of the requirements in proposed paragraph (c)(2), including the level of detail necessary to comply with the requirements of paragraph (c)(2), as discussed in Section V, “Availability of Regulatory Guidance,” of this document.
The NRC has added a new paragraph (c)(4) which requires the licensee to notify the NRC that all ITAAC are complete (All ITAAC Complete Notification). When the licensee submits the all ITAAC complete notification, the NRC expects that all activities requiring ITAAC post-closure letters have been completed, that the associated ITAAC determination bases have been updated, and that all required notifications under paragraph (c)(2) have been made.
The NRC has made editorial changes in § 52.99(d)(1) to replace the words “have been met” with, “are met” and in § 52.99(d)(2) to replace the phrase “ITAAC has been met” with the phrase “prescribed acceptance criteria are met.” Paragraph (d) states the options that a licensee will have in the event that it is determined that any of the acceptance criteria in the ITAAC are not met. If an activity is subject to an ITAAC derived from a referenced standard design certification and the licensee has not demonstrated that the ITAAC are met, then the licensee may take corrective actions to successfully complete that ITAAC or request an exemption from the standard design certification ITAAC, as applicable. A request for an exemption must also be accompanied by an application for a license amendment under 10 CFR 52.98(f). The NRC will consider and take action on the request for exemption and the license amendment application together as an integrated NRC action.
Also, if an activity that is subject to an ITAAC not derived from a referenced standard design certification and the licensee has not demonstrated that the prescribed acceptance criteria are met, the licensee may take corrective actions to successfully complete that ITAAC or request a license amendment under 10 CFR 52.98(f).
The final rule is substantially the same as the proposed rule with one change to § 52.99(e)(2) to clarify NRC notices to the public. The one language change made to the section, “NRC inspection, publication of notices, and availability of licensee notifications,” is to replace the language “The NRC shall make publicly available the licensee notifications under paragraphs (c)(1) through (4) of this section no later than the date of publication of the notice of intended operations required by 10 CFR 52.103(a)” with:
“The NRC shall, no later than the date of publication of the notice of intended operation required by 10 CFR 52.103(a), make publicly available those licensee notifications under paragraph (c) of this section that have been submitted to the NRC at least seven (7) days before that notice.” The NRC will make public all paragraph (c) ITAAC notifications that were submitted to the NRC at least seven days before the date of publication of the notice of intended operation required by 10 CFR 52.103(a)
Concurrent with this final rule, the NRC is issuing Revision 1 to RG 1.215, “Guidance for ITAAC Closure Under 10 CFR Part 52.” Revision 1 of RG 1.215 was issued in draft form for public comment with a temporary identification as Draft Regulatory Guide, DG-1250 (76 FR 27924, May 13, 2011). This guidance series was developed to describe, and make available to the public, information such as methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
In Revision 1 of RG 1.215, the NRC is endorsing Revision 4 to the existing industry ITAAC closure guidance in NEI 08-01, submitted to the NRC for endorsement on July 16, 2010 (Package ADAMS Accession No. ML102010076). The revised guidance is intended to provide an acceptable method by which licensees can implement the new requirements in this final rulemaking.
The proposed final rule requirements for ITAAC maintenance and the draft RG 1.215 were presented to the Advisory Committee on Reactor Safeguards (ACRS) on December 1, 2011 (ADAMS Accession No. ML11342A075). The ACRS conclusion and recommendations were that: (1) The proposed ITAAC rule, “Requirements for Maintenance of Inspections, Tests, Analyses, and Acceptance Criteria,” meets the goal of ensuring maintenance of ITAAC validity and should be approved. (2) The approach in RG 1.215, Revision 1, for closing and maintaining ITAAC should be revised to include an assessment that ensures a change does not introduce unintended consequences. The assessment should also include an evaluation that confirms the original inspections, tests, and analyses and their acceptance criteria are still valid and assures the functionality originally intended. (3) After revision, RG 1.215, Revision 1, should be issued. The NRC agrees to clarify RG 1.215 and the following sentence is included in Section B, where the requirements of NEI 08-01, section 8 are discussed: “The design and configuration control program should include an assessment and evaluation that confirms that the ITAAC potentially affected by a proposed change are still valid and assures the functionality originally intended.”
The NRC is making the documents identified in the following table available to interested persons through one or more of the following methods as indicated. To access documents related to this action, see the
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. The NRC has attempted to use plain language in promulgating this rule consistent with the Federal Plain Writing Act guidelines.
Under the “Policy Statement on Adequacy and Compatibility of Agreement States Programs,” approved by the Commission on June 20, 1997, and published in the
The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. The requirements in this rulemaking address procedural and information collection and reporting requirements necessary to support the NRC's regulatory activities on combined licenses under 10 CFR part 52, and to facilitate the NRC's conduct of hearings on ITAAC which may be held under Section 189 of the AEA. These requirements do not establish standards or substantive requirements with which combined license holders must comply. Thus, this rulemaking does not constitute establishment of a standard containing generally applicable requirements falling within the purview of the National Technology Transfer and Advancement Act and the implementing guidance issued by the Office of Management and Budget (OMB).
The NRC has determined that these amendments fall within the types of actions described as categorical exclusions under 10 CFR 51.22(c)(2) and (c)(3). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this regulation.
This final rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The burden to the public for these information collections is estimated to average 22 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Send comments on any aspect of these information collections, including suggestions for reducing the burden, to the Information Services Branch (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to
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.
The Commission has prepared a regulatory analysis on this final regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission.
The regulatory analysis is in ADAMS under Accession No. ML120100062.
The regulatory analysis may also be viewed and downloaded electronically via the Federal rulemaking Web site at
The regulatory analysis examines the benefits and costs of the final rule requirements. The key findings of the analysis are as follows:
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In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This final rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
The NRC has determined that neither the backfit rule, 10 CFR 50.109, nor any of the finality provisions in 10 CFR part 52, apply to this final rule. Therefore, a backfit analysis is not required because the proposed ITAAC maintenance rule does not contain any provisions that would impose backfitting as defined in the backfit rule, nor does it contain provisions that are inconsistent with the finality provisions applicable to applicants for or holders of combined licenses in 10 CFR part 52.
The final rule applies only to holders of combined licenses. The backfitting provisions in 10 CFR 50.109 and the finality provisions in Subpart C of 10 CFR part 52 protect holders of combined licenses (with the exception discussed further in this document). Subpart C of 10 CFR part 52 contains issue finality provisions which protect combined license applicants, but that protection extends only to issue resolution of matters resolved in referenced early site permits, standard design certifications, standard design approvals, or manufactured reactors. This rule does not alter issue resolution associated with referenced early site permits, standard design certifications, standard design approvals, or manufactured reactors. Instead, this final rule addresses requirements concerning the collection and reporting of information to the NRC to support the Commission's finding that ITAAC are met, and the conduct of hearings addressing whether prescribed inspections, tests, and analyses have been or will be performed and whether the prescribed acceptance criteria have been or will be met. Neither the backfit rule nor the issue finality provisions of 10 CFR part 52 apply to information collection and reporting requirements.
To the extent that the rule revises these information collection and reporting requirements for future combined licenses, these requirements do not constitute backfitting or are otherwise inconsistent with the finality provisions in 10 CFR part 52, for the additional reason that the ITAAC Maintenance Rule's requirements are prospective in nature and effect. Neither the backfit rule nor the issue finality provisions in 10 CFR part 52 were intended to apply to every NRC action, which substantially changes the obligations of future licensees under 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis or other evaluation for this final rule.
Under the Congressional Review Act of 1996, the NRC has determined that these actions are not major rules and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
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.
Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification.
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 and 52.
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, 2.321also 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).
(j)
(1) If the Commission or the appropriate director is otherwise able to make the finding under 10 CFR 52.103(g) 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
(4) Notwithstanding the pendency of a petition for reconsideration under 10 CFR 2.345, a petition for review under 10 CFR 2.341, or a motion for stay under 10 CFR 2.342, or the filing of a petition under 10 CFR 2.206.
Atomic Energy Act secs. 103, 104, 147, 149, 161, 181, 182, 183, 185, 186, 189, 223, 234 (42 U.S.C. 2133, 2201, 2167, 2169, 2232, 2233, 2235, 2236, 2239, 2282); Energy Reorganization Act secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 (2005).
(a)
(b)
(c)
(2)
(3)
(4)
(d)
A request for an exemption must also be accompanied by a request for a license amendment under 10 CFR 52.98(f).
(2) In the event that an activity is subject to an ITAAC not derived from a referenced standard design certification and the licensee has not demonstrated that the prescribed acceptance criteria are met, the licensee may take corrective actions to successfully complete that ITAAC or request a license amendment under 10 CFR 52.98(f).
(e)
(1) At appropriate intervals until the last date for submission of requests for hearing under 10 CFR 52.103(a), the NRC shall publish notices in the
(2) The NRC shall make publicly available the licensee notifications under paragraph (c) of this section. The NRC shall, no later than the date of publication of the notice of intended operation required by 10 CFR 52.103(a), make publicly available those licensee notifications under paragraph (c) of this section that have been submitted to the NRC at least seven (7) days before that notice.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Honeywell International Inc. models TFE731-4, -4R, -5, -5R, -5AR, and -5BR series turbofan engines. This AD was prompted by a report of a rim/web separation of a first stage low-pressure
This AD is effective October 2, 2012.
For service information identified in this AD, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ 85034-2802; Web site:
You may examine the AD docket on the Internet at
Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; phone: 562-627-5246; fax: 562-627-5210: email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the one comment received on the proposal and the FAA's response to the comment.
One commenter requested we change a term in paragraph (h) of the proposed AD. The commenter requested that “tie rod” be changed to “tie shaft.” The commenter said that making this change would allow a level of disassembly to access the inlet total temperature harness and other hardware without affecting the low-pressure turbine (LPT) module.
We do not agree. Mandating access to the LPT module in the AD and suspect disks when the tie rod is unstretched is consistent in achieving AD compliance sooner for the Falcon 20 and CASA 101 airplanes. LPT disk separations in these airplanes have been determined to be higher risk than for engines in other applications. We did not change the AD.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 9868, February 21, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 9868, February 21, 2012).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
We estimate that this AD will affect 1,550 engines installed on airplanes of U.S. registry. We also estimate that it will take about 1 work-hour per engine to perform the actions at next access and 165 work-hours per unscheduled engine disassembly, and that the average labor rate is $85 per work-hour. Replacement parts will cost about $175,000 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $35,195,488 per year.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General Requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 2, 2012.
None.
This AD applies to Honeywell International Inc.:
(1) Model TFE731-5 series turbofan engines, with a first stage low-pressure turbine (LPT1) rotor assembly, part number (P/N) 3075184-2, 3075184-3, or 3075184-4, installed, and
(2) Models TFE731-5AR and -5BR series turbofan engines, with a first stage LPT1 rotor assembly, P/N 3075447-1, 3075447-2, 3075447-4, 3075713-1, 3075713-2, 3075713-3, or 3074748-5, installed, and
(3) Models TFE731-4, -4R, -5AR, -5BR, and -5R series turbofan engines, with an LPT1 rotor assembly, P/N 3074748-4, 3074748-5, 3075447-1, 3075447-2, 3075447-4, 3075713-1, 3075713-2, or 3075713-3, installed.
This AD was prompted by a report of a rim/web separation of an LPT1 rotor assembly. We are issuing this AD to prevent uncontained disk separation, engine failure, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Remove the LPT1 rotor assembly at the next access to the LPT1 rotor assembly or at the next major periodic inspection, not to exceed 2,600 hours-in-service since last major periodic inspection, or 8 years after the effective date of this AD, whichever occurs first.
(2) Install an LPT1 rotor assembly that is eligible for installation.
(1) Remove the LPT1 rotor assembly at the next core zone inspection, not to exceed 5,100 hours-in-service since last core zone inspection, or at the next time the LPT1 rotor disc is removed for cause, or 8 years after the effective date of this AD, whichever occurs first.
(2) Install an LPT1 rotor assembly that is eligible for installation.
(1) For the purpose of this AD, “next access” is when the low-pressure tie rod is unstretched.
(2) For the purpose of this AD, an LPT1 rotor assembly “eligible for installation” is an LPT1 rotor assembly not having a P/N listed in this AD.
After the effective date of this AD, do not install any LPT1 rotor assembly listed by P/N in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, into any engine.
The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Use the procedures in 14 CFR 39.19 to request an AMOC.
(1) For more information about this AD, contact Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; phone: 562-627-5246; fax: 562-627-5210: email:
(2) Honeywell International Inc. Service Bulletin (SB) No. TFE731-72-3768; SB No. TFE731-72-3769; and SB No. TFE731-72-3770, pertain to the subject of this AD.
(3) For service information identified in this AD, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ 85034-2802; Web site:
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective August 28, 2012. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP
The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
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. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective August 28, 2012. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 28, 2012.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
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. It, therefore— (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPSs; and § 97.35 COPTER SIAPs, Identified as follows:
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (Commission) is adopting regulations to further implement new statutory provisions enacted by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) regarding registration of intermediaries. Specifically, the Commission is adopting certain conforming amendments to the Commission's regulations regarding the registration of intermediaries, consistent with other Commission rulemakings issued pursuant to the Dodd-Frank Act, and other non-substantive, technical amendments to its regulations.
Effective October 29, 2012.
Andrew Chapin, Associate Director, Division of Swap Dealer and Intermediary Oversight, (202) 418-5465,
On July 21, 2010, President Obama signed the Dodd-Frank Act.
As discussed below, the regulations the Commission is adopting today concern conforming and technical amendments to part 3 governing the registration of intermediaries. These final regulations are based in large part on the Commission's proposed regulations regarding part 3 (Proposal).
In response to the Proposal, the Commission received four comments from the Futures Industry Association (FIA), the National Futures Association (NFA), and two individuals, Chris Barnard and Bill Nolan. In addition, the Commission also received comments relevant to the Proposal in a global comment letter submitted by a U.S. investor and a petition for exemption submitted pursuant to Section 4(c) of the CEA
Section 3.1 proposed alterations to the scope of persons who, by reason of their ownership of securities of a registrant, must be listed as a principal. The Commission proposed to narrow the current category of persons in § 3.1(a)(2)(i) to only those individuals who are the owners or are entitled to vote or have the power to sell or direct the sale of 10 percent or more of the outstanding shares of any class of equity securities, other than non-voting securities. The Commission intended to narrow the scope of the provision because the existing provision was over-inclusive, in that it captured individuals without the ability to influence a company's actions, such as owners of 10% of a class of preferred stock. However, upon further reflection, the Commission is concerned that the Proposal might, in other ways, be under-inclusive, in that it would fail to capture an owner who might indirectly have the power—such as through a membership agreement—to dictate upfront the entity's activities that are subject to regulation by the Commission. Consequently, in order to strike the right balance between the over-inclusive existing provision and the under-inclusive proposed language, the Commission is modifying § 3.1(a)(2)(i) to include individuals who have the power to exercise a controlling influence over the entity's activities that are subject to regulation by the Commission.
Section 3.10 generally sets forth the registration requirements for various Commission registrants. Section 3.11 generally sets forth the registration requirements for floor brokers and floor traders. Section 3.12 generally sets forth the registration requirements for natural persons associated with a Commission registrant in certain capacities, referred to as associated persons (APs).
With respect to APs, the Commission proposed to amend § 3.10 to add a new paragraph (c)(5) to clarify that a person employed by either an SD or a MSP and acting as its AP is not required to separately register as an SD or MSP, respectively, solely arising out of the person's activities as an AP. The Commission sought public comment as to whether this exemption is necessary to clarify the registration responsibilities of employees, in light of the current absence of a registration requirement as an AP of an SD or an MSP, and in light of the definition requiring persons who engage in certain swap activities to register as an SD or an MSP.
With respect to intermediaries, current § 3.10(c)(2) and (3) provides exemptions from registration as a futures commission merchant (FCM) for foreign brokers and other foreign intermediaries conducting activities in commodity interest transactions on designated contract markets (DCMs) solely on behalf of customers located outside the U.S. The Commission proposed to amend this section to expand these registration exemptions to foreign brokers and foreign intermediaries engaged in commodity interest transactions solely on behalf of non-U.S. customers executed on a SEF and cleared on a designated clearing organization through the customer omnibus account maintained with a registered FCM. FIA supported the Commission's proposal to align registration exemptions for foreign intermediaries across DCMs and SEFs. The Commission also sought comment as to whether it should expand such exemption to swap transactions executed bilaterally, and FIA supported this suggestion as well. Finally, the Commission sought comment as to whether any expansion should distinguish between bilateral swap transactions that occur within the U.S. and those that occur abroad. The Commission did not receive any comments regarding such a distinction. Therefore, the Commission is amending § 3.10(c)(2) and (3) to extend the registration exemption to commodity interest transactions executed bilaterally, on or subject to the rules of a DCM, or on or subject to the rules of a SEF, that are submitted for clearing on an omnibus basis through a registered FCM.
As proposed, § 3.11 pertaining to registration of floor brokers and floor traders contained a series of technical changes, such as consolidating an exemption found in § 3.4 and removing references to DTEFs. Subsequently, the Commission has promulgated the further definition of the term “swap dealer”
Given that legal entities, in addition to natural persons, may seek to avail themselves of the exclusion set forth above, the Commission therefore is adding a reference to Form 7-R in § 3.11. Form 7-R, as the application for registration as an intermediary, is the appropriate form for NFA to process an entity's application for registration as a floor trader engaged in swaps activities. Additionally, references to SEFs are being added throughout § 3.11 as one of the two categories of facilities for which floor traders in swaps will be granted trading privileges. Although these additions were omitted in the Proposal, the Commission believes that insertion of the appropriate reference to the type of registration form, and the type of facility, that would allow the NFA to properly process applications for registration of floor traders engaged in swaps activities are conforming changes to the registration rule that are necessary to implement the SD definition.
Consequently, the Commission is adopting additional technical modifications in § 3.21 to address the processing of fingerprints for principals of a floor trader that is a non-natural person, as well as in § 3.33 to reflect the use of Form 7-W for a request for withdrawal from a floor trader that is a non-natural person. The Commission is also adopting other technical modifications in §§ 3.30 and 3.40 to reflect the registration of legal entities as floor traders,
The Commission proposed to amend § 3.12(h)(1) to provide that a person is not required to register as an AP in any capacity if such person is registered in one of the other enumerated categories, including an SD or MSP. FIA agreed with the Commission that it is highly improbable that an individual, rather than an entity, would register as an SD and MSP, but supported the Commission's proposal in light of the regulatory certainty that it provides. Accordingly, the Commission is adopting § 3.12(h)(1) as proposed.
Section 3.31 sets forth procedural requirements for a registrant to update and/or correct information previously provided to the Commission and the NFA. The NFA is a registered futures association (RFA) to which the Commission has delegated certain registration functions.
Among other changes set forth in the Proposal, the Commission proposed: (1) To adopt § 3.31(a)(5) to require re-registration in the event of a change in name or form of organization and a change in principal, while preserving the existing safe harbor in § 3.31(a)(3) in the event that there is no change in principal and the registrant will be liable for its predecessor organization. The Commission specifically requested comment on whether the additional transparency under the new provisions of § 3.31 is beneficial and necessary to fulfill the Commission's mandate to protect customers, and whether the existing safe harbors from re-registration should be maintained. In response to the Commission's request, NFA and FIA opposed the proposed re-registration requirements as unnecessary, while Bill Nolan supported the proposed re-registration requirements as necessary to ensure that the existing process is not abused by registrants to the detriment of customers.
In particular, the NFA challenged the proposed amendments to § 3.31 on the following grounds: (1) It will be more difficult for members of the public to uncover a “new” firm's true disciplinary information; (2) the change in the legal name or form of a business organization and the addition of a principal does not necessarily trigger a regulatory need for re-registration; and (3) the proposed changes do not adequately address the timing of events sufficient to require re-registration. FIA similarly opposed the proposed changes on the grounds that re-registration should not be required for concurrent changes to the name or form of an organization, or the addition of a principal because re-registration is not required separately for each of these occurrences. FIA also stated that, upon implementation of the Dodd-Frank Act, the prospective mergers of affiliated companies will be negatively impacted by the proposed requirements.
After carefully considering the foregoing comments, the Commission has determined not to adopt the amendment in § 3.31(a)(3) and (5) as proposed.
In its comment letter, the NFA also suggested a few technical edits to the language in proposed § 3.31 to clarify that: (1) It is not the electronic update reporting a change on a Form 7-R that creates any deficiency or inaccuracy; and (2) an applicant or registrant no longer lists its principals who are individuals on its application for registration, as only holding companies are listed. The Commission believes that these comments improve upon the proposed language and is adopting these suggested changes in the final regulation. Finally, as previously mentioned, the Commission is also adopting additional technical modifications in § 3.31 to reflect the use of Form 7-R for floor traders that are non-natural persons.
In the Proposal, the Commission noted that it would be necessary to harmonize any distinctions between the Proposal and other rulemakings as they become final. On January 19, 2012, the Commission published in the
The Regulatory Flexibility Act (Reg Flex Act) requires that agencies consider whether the rules they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.
As set forth in the Proposal,
Since there could be some small entities that register as IBs, commodity trading advisors, or floor traders, the Commission considered whether this rulemaking would have a significant economic impact on these registrants. The final rules would clarify the mechanics of registration by updating cross-references, consolidating exemptions, and deleting obsolete forms. The Commission does not expect registrants to incur additional expenses as a result of these clarifications. Consequently, the Commission finds that there is no significant economic impact on IBs or commodity trading advisors resulting from this rulemaking. The final rules also provide clarity to floor traders regarding existing registration requirements (for example, the revisions to § 3.11 clarify that an entity that wishes to register as a floor trader shall do so by filing Form 7-R), rather than imposing any new registration requirement. Consequently, the Commission finds that there is no significant economic impact on floor traders resulting from this rulemaking.
Accordingly, for the reasons stated in the Proposal and the additional rationale provided above, the Commission believes that the conforming and other technical amendments in this rulemaking will not have a significant economic impact on a substantial number of small entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the regulations being published today by this
Under the Paperwork Reduction Act of 1995 (PRA), 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 control number.
The currently approved rule collection covering the regulatory filings discussed in this final rule (3038-0023, which covers Forms 3-R, 7-R, 8-R and 8-T) has a burden of 78,109 respondents and 7,030 annual hours.
Therefore, the Commission has determined to revise the burden for this information collection as follows. The burden associated with the use of Form 7-R for the registration of entities as floor traders is estimated to be 60 hours, assuming 60 respondents,
The respondent burden for this collection is estimated to average 1 hour per response for the Form 7-R; 0.8 hours per response for the Form 8-R; and 0.2 hours per response for the Form 8-T.
Section 15(a) of the CEA
The regulations being adopted today conform, modernize, and make technical amendments to part 3 governing the regulation of intermediaries. Their purpose is to
The Commission received few specific comments concerning the Proposal's consideration of costs and benefits beyond general comments that the costs associated with particular rule amendments would outweigh the benefits. Those it did receive are addressed in the discussion below. None of the comments received provided a basis to quantify estimated costs or benefits.
The Commission's baseline for consideration of the costs and benefits of this rulemaking are the costs and benefits that the public and market participants would experience in the absence of this proposed regulatory action. In other words, the proposed baseline is an alternative situation in which the Commission takes no action to conform, modernize, and make technical adjustments to its existing rules as described above in light of the Dodd-Frank Act amendments to the CEA.
As set forth in the Proposal, the regulations the Commission is adopting concern conforming and technical amendments to part 3 governing the registration of intermediaries. Although the conforming amendments do not involve substantive changes to existing regulations, and hence no significant changes to the costs or benefits of the same, the final rules do benefit market participants by adding specificity to the mechanics of registration, which also benefits customers in the form of increased transparency. For example, the conforming amendments will add references to SEFs in § 3.42 to clarify that a temporary license would immediately terminate upon failure to comply with an award in an arbitration proceeding conducted pursuant to the rules of a SEF.
Current § 3.1(a) sets forth the definition of “principal,” and § 3.1(a)(3) carves out from that definition certain persons that have made capital contributions in the form of subordinated debt to a registrant, including unaffiliated banks operating in the U.S. and U.S. branches of foreign banks. The Commission is adopting amendments to expand the carve-out to accommodate the likelihood that persons with capital contributions from foreign banks might register as SDs and thus be included within the definition of principal. This expanded definitional carve-out makes the foreign bank registration process consistent with that for domestic banks. This consistency promotes market efficiency by avoiding additional costs that foreign banks would otherwise incur to comply with listing and qualification requirements.
No comments were received with respect to any cost or benefit implications of this definitional amendment, notwithstanding that the Commission specifically sought comments concerning it.
Section 3.10 generally sets forth the registration requirements for various Commission registrants. The Commission has decided to implement the expansion of the existing exemption in § 3.10(c)(2) and (3), which will introduce parity between registration obligations of foreign brokers and foreign intermediaries conducting commodity interest transactions bilaterally, on DCMs, and on SEFs. The Commission expects such expansion of the exemption to reduce compliance costs without affecting customer protection. The Commission has also decided to implement the proposed new paragraph § 3.10(c)(5), which will provide regulatory certainty that the activities engaged in solely as an associated person of an SD would not require such person to register as an SD. The Commission believes that this amendment is beneficial by reducing the costs to market participants of approaching the Commission for clarifications.
Section 3.11 is being amended to reflect the further definition of the term “swap dealer” which, among, other things, excludes certain swaps entered into by registered floor traders from the SD determination. Traditionally, natural persons have registered as floor traders. However, following promulgation of rules further defining the term “swap dealer,” the Commission foresees that firms will register as floor traders, making the previous rule requiring fingerprinting for all floor traders impractical without clarification. The new rules clarify that principals of a firm registering as a floor trader, and each individual responsible for entry of orders from that floor trader's own account, will be subject to the fingerprinting requirement. The Commission believes that this amendment is beneficial by obviating the need for potentially impacted market participants to incur costs to approach the Commission for clarifications. The other amendments extending the scope of § 3.11 to SEFs, while mainly technical in nature, will improve operational efficiency by allowing NFA to properly process applications for registration for floor traders engaged in swap activities.
Section 3.12 generally sets forth the registration requirement for APs. The Commission is adopting an amendment to § 3.12(h)(1)(i) to provide that a person is not required to register as an AP in any capacity if he or she is registered in one of the other enumerated categories, including an SD or MSP. FIA agreed with the Commission that it is highly improbable that an individual, rather than an entity, would register as an SD and MSP, but supported the Commission's proposal in light of the clarity it provides. As the change clarifies and extends the exemptions to activities of an SD or MSP, it will not create additional costs, and will benefit the markets by promoting efficiency by eliminating the need for multiple registrations by a single individual.
The rules amendments adopted today delete the term DTEF from §§ 3.2(c), 3.2(c)(2), 3.10(a)(3)(i)(A), 3.10(c)(2)(i),
As this change is mandated by statute, it will not create costs and benefits relative to the baseline. No comments were received on the costs and benefits of this aspect of the Proposal.
Section 3.1(a)(2) defines a principal to include persons who exceed a threshold for equity ownership. As a technical matter, the Commission is adopting amendments to harmonize the references to outstanding classes of securities in § 3.1(a)(2)(i) and (ii) by referring throughout to “outstanding shares of any class of equity securities, other than non-voting securities.” The primary benefit from these amended regulations is that they provide specificity for calculations involving authorized but unissued securities, or debt securities.
Also, the Commission is amending its regulations to move the concept of indirect owners found in the definition of beneficial ownership in § 3.1(d) to § 3.1(a)(4) to serve as a backstop to the requirement to list indirect owners in § 3.1(a)(2). The Commission received no comments with respect to the costs and benefits of this amendment. The Commission does not believe that this amendment will have a material impact on costs and benefits relative to the baseline.
The rules incorporate revised language further defining the definition of principal to include any person who has the power to exercise a controlling influence over an entity's activities that are subject to regulation by the Commission. As described earlier, the proposed amendments were designed to reduce the scope of persons who might potentially be covered by the definition. Under certain circumstances, the revised § 3.1(a)(2)(i) language referencing those with power to exercise a controlling influence could potentially increase the scope of persons covered by the definition. But, given that this amendment is similar to an existing requirement in Form BD covering broker-dealers, the Commission believes that any additional costs will be limited to the subset of firms that are not already registered with the SEC and within this subset, those firms which have individuals who are not subject to the existing equity ownership threshold, or the existing director or officer function threshold, but nonetheless who possess the power to exercise control. Given the nature of the control structure being addressed, while it is not feasible for the Commission to estimate the number of firms likely to be impacted by this rule, it believes that costs of complying with the rule are likely to be minimal because information on which owners of an entity exercise control is generally known to officers of that entity. Furthermore, the minimal costs are justified by the benefits to the market and market participants from ensuring that individuals cannot circumvent the fitness qualifications presently in place for principals by structuring their holdings into non-voting securities, and then exercising control through a separate agreement.
Current § 3.31 sets forth procedural requirements for a registrant to update and/or correct information previously provided to the Commission and the NFA. Section 3.33 addresses the procedural requirements for the withdrawal of registration. The Commission is adopting amendments to § 3.31(a) to reference the requirement in amended § 3.33 to withdraw registration upon certain events of dissolution, and in § 3.31(b), (c) and (d) to make technical corrections.
The adopted amendments in § 3.31 are technical and are not expected to involve costs, but will provide greater clarity by correcting references to outdated forms and by deleting duplicate instructions. The amendments to § 3.33 clarify the requirement to withdraw under certain circumstances involving dissolution of a company, and would improve the predictability of withdrawal requirements to the benefit of market participants. There were no comments on the costs and benefits of the proposed withdrawal requirements under § 3.33.
The Commission is adopting amendments to the regulations addressing the forms used during the registration process. These changes are technical in nature—for example, the changes would delete references to an obsolete form and obsolete cross-references. The Commission does not believe that increased costs to market participants or the public will result from these changes. That said, the Commission believes they do provide a benefit by addressing gaps in the current information collected through the various forms, particularly those forms cross-referencing other data.
There were no comments on the costs and benefits of the proposed technical amendments to the forms.
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The Commission believes that the amendments to § 3.33 will improve the protection of market participants and the public by requiring withdrawal of registration in the event of dissolution of a registrant, thus improving the protection of the public.
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The amendments to § 3.1 clarify the calculations used to determine who meets the definition of principal, reducing uncertainty surrounding compliance by intermediaries. The amendments to the regulations addressing the forms used during the registration process will update the description of information collection and make it more accurate, which improves the overall efficiency of our markets.
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Administrative practice and procedure, Brokers, Commodity futures, Major swap participants, Reporting and recordkeeping requirements, Swap dealers.
For the reasons stated in the preamble, the Commission amends 17 CFR part 3 as follows:
5 U.S.C. 552, 552b; 7 U.S.C. 1a, 2, 6a, 6b, 6b-1, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, 23.
(a)
(2)(i) Any individual who directly or indirectly, through agreement, holding company, nominee, trust or otherwise, is either the owner of ten percent or more of the outstanding shares of any class of equity securities, other than non-voting securities, is entitled to vote or has the power to sell or direct the sale of ten percent or more of the outstanding shares of any class of equity securities, other than non-voting securities, is entitled to receive ten percent or more of the profits of the entity, or has the power to exercise a controlling influence over the entity's activities that are subject to regulation by the Commission; or
(ii) Any person other than an individual that is the direct owner of ten percent or more of the outstanding shares of any class of equity securities, other than non-voting securities; or
(3) Any person that has contributed ten percent or more of the capital of the entity, provided, however, that if such capital contribution consists of subordinated debt contributed by either:
(i) An unaffiliated bank insured by the Federal Deposit Insurance Corporation,
(ii) An unaffiliated “foreign bank,” as defined in 12 CFR 211.21(n) that currently operates an “office of a foreign bank,” as defined in 12 CFR 211.21(t), which is licensed under 12 CFR 211.24(a),
(iii) Such unaffiliated office of a foreign bank that is licensed, or
(iv) An insurance company subject to regulation by any State, such bank, foreign bank, office of a foreign bank, or insurance company will not be deemed to be a principal for purposes of this section, provided such debt is not guaranteed by another party not listed as a principal.
(4) Any individual who, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling arrangement or any other contract, arrangement, or device with the purpose or effect of divesting such person of direct or indirect ownership of an equity security of the entity, other than a non-voting security, or preventing the vesting of such ownership, or of avoiding making a contribution of ten percent or more of the capital of the entity, as part of a plan or scheme to evade being deemed a principal of the entity, shall be deemed to be a principal of the entity.
(c) The National Futures Association shall notify the registrant, or the sponsor in the case of an applicant for registration as an associated person, and each designated contract market and swap execution facility that has granted the applicant trading privileges in the case of an applicant for registration as a floor broker or floor trader, if registration has been granted under the Act.
(2) If an applicant for registration as a floor broker or floor trader receives a temporary license in accordance with § 3.40, the National Futures Association shall notify the designated contract market or swap execution facility that has granted the applicant trading privileges that only a temporary license has been granted.
(a) Except as may be otherwise provided in the Act or in any rule, regulation, or order of the Commission, each futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, floor broker, floor trader of any commodity for future delivery, commodity trading advisor, commodity pool operator, introducing broker, leverage transaction merchant, and associated person (other than an associated person of a swap dealer or major swap participant) must register as such under the Act. Except as may be otherwise provided in the Act or in any rule, regulation, or order of the Commission, registration in one capacity under the Act shall not include registration in any other capacity.
(a) * * *
(3) * * *
(i) * * *
(A) The broker or dealer limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market, to security futures products as defined in section 1a(44) of the Act;
(c) * * *
(2)(i) A foreign broker, as defined in § 1.3(xx) of this chapter, is not required to register as a futures commission merchant if it submits any commodity interest transactions executed bilaterally, on or subject to the rules of a designated contract market, or on or subject to the rules of a swap execution facility, for clearing on an omnibus basis through a futures commission merchant registered in accordance with section 4d of the Act.
(3)(i) A person located outside the United States, its territories or possessions engaged in the activity of: An introducing broker, as defined in § 1.3(mm) of this chapter; a commodity trading advisor, as defined in § 1.3(bb) of this chapter; or a commodity pool operator, as defined in § 1.3(nn) of this chapter, in connection with any commodity interest transaction executed bilaterally or made on or subject to the rules of any designated contract market or swap execution facility only on behalf of persons located outside the United States, its territories or possessions, is not required to register in such capacity provided that any such commodity interest transaction is submitted for clearing through a futures commission merchant registered in accordance with section 4d of the Act.
(4) * * *
(ii) Such a person introduces, on a fully-disclosed basis in accordance with § 1.57 of this chapter, any institutional customer, as defined in § 1.3(g) of this chapter, to a registered futures commission merchant for the purpose of trading on a designated contract market;
(iii) Such person's affiliated futures commission merchant has filed with the National Futures Association (Attn: Vice President, Compliance) an acknowledgement that the affiliated futures commission merchant will be jointly and severally liable for any violations of the Act or the Commission's regulations committed by such person in connection with those introducing activities, whether or not
(iv) Such person does not solicit any person located in the United States, its territories or possessions for trading on a designated contract market, nor does such person handle the customer funds of any person located in the United States, its territories or possessions for the purpose of trading on any designated contract market.
(5) In determining whether a person is a swap dealer, the activities of a registered swap dealer with respect to which such person is an associated person shall not be considered.
(a)
(2) An applicant for registration as a floor broker or floor trader will not be registered or issued a temporary license as a floor broker or floor trader unless the applicant has been granted trading privileges by a board of trade designated as a contract market or registered as a swap execution facility by the Commission.
(3) When the Commission or the National Futures Association determines that an applicant for registration as a floor broker or floor trader is not disqualified from such registration or temporary license, the National Futures Association will notify the applicant and any contract market or swap execution facility that has granted the applicant trading privileges that the applicant's registration or temporary license as a floor broker or floor trader is granted.
(b)
(c)
(b)
(c)
(g)
(h)
(i) Registered under the Act as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, floor broker, or as an introducing broker;
(ii) Engaged in the solicitation of funds, securities, or property for a participation in a commodity pool, or the supervision of any person or persons so engaged, pursuant to registration
The revisions and addition read as follows:
(a) * * *
(1) A legible, accurate and complete photocopy of a fingerprint card that has been submitted to the Federal Bureau of Investigation for identification and appropriate processing and of each report, record, and notation made available by the Federal Bureau of Investigation with respect to that fingerprint card if such identification and processing has been completed satisfactorily by the Federal Bureau of Investigation not more than ninety days prior to the filing with the National Futures Association of the photocopy;
(2) A statement that such person's application for initial registration in any capacity was granted within the preceding ninety days, provided that the provisions of this paragraph (a)(2) shall not be applicable to any person who, by Commission rule, regulation, or order, was not required to file a fingerprint card in connection with such application for initial registration; or
(3) A statement that such person has a current Form 8-R on file with the Commission or the National Futures Association.
(b) * * *
(1) With respect to the fingerprints of an associated person: An officer, if the sponsor is a corporation; a general partner, if a partnership; or the sole proprietor, if a sole proprietorship;
(2) With respect to fingerprints of a floor broker or individual floor trader: The applicant for registration; and with respect to fingerprints of each individual who is responsible for entry of orders from the account of a floor trader that is a non-natural person, the applicant for registration, or
(3) With respect to the fingerprints of a principal: An officer, if the futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person, or leverage transaction merchant with which the principal will be affiliated is a corporation; a general partner, if a partnership; or the sole proprietor, if a sole proprietorship.
(c)
(4) * * *
(i) The name of the futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity trading advisor, commodity pool operator, floor trader that is a non-natural person, leverage transaction merchant, or applicant for registration in any of these capacities of which the person is an outside director;
(iii) The internal controls used to ensure that the outside director for whom exemption under this paragraph (c) is sought does not have access to the keeping, handling or processing of the items described in paragraphs (c)(2)(i) and (ii) of this section; and
(b) That the person, or any individual who, based upon his or her relationship with that person is required to file a Form 8-R in accordance with the requirements of this part, as applicable, must, within such period of time as the Commission or the National Futures Association may specify, complete and file with the Commission or the National Futures Association a current Form 7-R, or if appropriate, a Form 8-R, in accordance with the instructions thereto.
(a) The address of each registrant, applicant for registration, and principal, as submitted on the application for registration (Form 7-R or Form 8-R) or as submitted on the biographical supplement (Form 8-R) shall be deemed to be the address for delivery to the registrant, applicant or principal for any communications from the Commission or the National Futures Association, including any summons, complaint, reparation claim, order, subpoena, special call, request for information, notice, and other written documents or correspondence, unless the registrant, applicant or principal specifies another address for this purpose: Provided that the Commission or the National Futures Association may address any correspondence relating to a biographical supplement submitted for or on behalf of a principal to the futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity pool operator, commodity trading advisor, floor trader that is a non-natural person, or leverage transaction merchant with which the principal is affiliated and may address any correspondence relating to an associated person to the futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity pool operator, commodity trading advisor, floor trader that is a non-natural person, or leverage transaction merchant with which the associated person or the applicant for registration is or will be associated as an associated person.
(b) Each registrant, while registered and for two years after termination of registration, and each principal, while affiliated and for two years after termination of affiliation, must notify in writing the National Futures Association of any change of the address on the application for registration, biographical supplement, or other address filed with the National Futures Association for the purpose of receiving communications from the Commission or the National Futures Association. Failure to file a required response to any communication sent to the latest such address filed with the National Futures Association that is caused by a failure to notify in writing the National Futures Association of an address change may result in an order of default and award of claimed monetary damages or other appropriate order in any National Futures Association or Commission
(a)(1) Each applicant or registrant as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person or leverage transaction merchant shall, in accordance with the instructions thereto, promptly correct any deficiency or inaccuracy in Form 7-R or Form 8-R that no longer renders accurate and current the information contained therein, with the exception of any change that requires withdrawal from registration under § 3.33. Each such correction shall be prepared and filed in accordance with the instructions thereto to create a Form 3-R record of such change.
(2) Where a registrant has changed its form of organization to or from a sole proprietorship, the registrant must request withdrawal from registration in accordance with § 3.33.
(3) Where any person becomes a principal of an applicant or registrant subsequent to the filing of the applicant's or registrant's current Form 7-R:
(i) If the new principal is not a natural person, the registrant shall update such Form 7-R to create a Form 3-R record of change.
(ii) If the new principal is a natural person, the registrant shall file a Form 8-R, completed in accordance with the instructions thereto and executed by such person who is a principal of the registrant and who was not listed on the registrant's initial application for registration or any amendment thereto.
(b) Each applicant or registrant as a floor broker, floor trader or associated person, and each principal of a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person, or leverage transaction merchant must, in accordance with the instructions thereto, promptly correct any deficiency or inaccuracy in the Form 8-R or supplemental statement thereto to create a Form 3-R record of change.
(c)(1) After the filing of a Form 8-R or updating a Form 8-R to create a Form 3-R record of change by or on behalf of any person for the purpose of permitting that person to be an associated person of a futures commission merchant, retail foreign exchange dealer, commodity trading advisor, commodity pool operator, introducing broker, or a leverage transaction merchant, that futures commission merchant, retail foreign exchange dealer, commodity trading advisor, commodity pool operator, introducing broker or leverage transaction merchant must, within thirty days after the occurrence of either of the following, file a notice thereof with the National Futures Association indicating:
(2) Each person registered as, or applying for registration as, a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person, or leverage transaction merchant must, within thirty days after the termination of the affiliation of a principal with the registrant or applicant, file a notice thereof with the National Futures Association.
(d) Each contract market or swap execution facility that has granted trading privileges to a person who is registered, has received a temporary license, or has applied for registration as a floor broker or floor trader, must notify the National Futures Association within sixty days after such person has ceased having trading privileges on such contract market or swap execution facility.
(a) A futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity trading advisor, commodity pool operator, floor trader that is a non-natural person, or leverage transaction merchant must request that its registration be withdrawn prior to any voluntary resolution to file articles (or a certificate) of dissolution (or cancellation), and upon notice of any involuntary dissolution initiated by a third-party. A futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity trading advisor, commodity pool operator, leverage transaction merchant, floor broker or floor trader may request that its registration be withdrawn in accordance with the requirements of this section if:
(b) A request for withdrawal from registration as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity trading advisor, commodity pool operator, floor trader that is a non-natural person, or leverage transaction merchant must be made on Form 7-W, and a request for withdrawal from registration as a floor broker or individual floor trader must be made on Form 8-W, completed and filed with the National Futures Association in accordance with the instructions thereto. The request for withdrawal must be made by a person duly authorized by the registrant and must specify:
(e) A request for withdrawal from registration as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity pool operator, commodity trading advisor, floor trader that is a non-natural person, or leverage transaction merchant on Form 7-W, and a request for withdrawal from registration as a floor broker or individual floor trader on Form 8-W, must be filed with the National Futures Association and a copy of such request must be sent by the National Futures Association within three business days of the receipt of such withdrawal request to the Commodity Futures Trading Commission, Division of Swap Dealer and Intermediary Oversight, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. In addition, any floor broker or individual floor trader requesting withdrawal from registration must file a copy of his or her Form 8-W with each contract market or swap execution facility that has granted him or her trading privileges, and any floor trader that is a non-natural person requesting withdrawal from registration must file a copy of its Form 7-W with each contract market or swap execution facility that has granted it trading privileges. Within three business days of any determination by the National Futures Association under § 3.10(d) to treat the failure by a registrant to file an annual Form 7-R as a request for withdrawal, the National Futures Association shall send the Commission notice of that determination.
(a) * * *
(2) The National Futures Association may grant a temporary license to any applicant for registration as a floor broker or individual floor trader upon the contemporaneous filing with the National Futures Association of:
(iv) Evidence that the applicant has been granted trading privileges by a contract market or swap execution facility that has filed with the National Futures Association a certification signed by its chief operating officer with respect to the review of an applicant's employment, credit and other history in connection with the granting of trading privileges.
(a) A temporary license issued pursuant to § 3.40 shall terminate:
(2) Immediately upon termination of the association of the applicant for registration as an associated person with the registrant which filed the sponsorship certification, or immediately upon loss of trading privileges by an applicant for registration as a floor broker or floor trader on all contract markets and swap execution facilities which filed the certification described in § 3.40;
(6) Immediately upon failure to comply with an award in an arbitration proceeding conducted pursuant to the rules of a designated contract market, swap execution facility or registered futures association within the time specified in section 10(g) of the National Futures Association's Code of Arbitration or the comparable time period specified in the rules of a contract market or other appropriate arbitration forum.
(8) Immediately upon notice to the applicant and the applicant's sponsor or the contract market or swap execution facility that has granted the applicant trading privileges that:
(i) The applicant failed to disclose relevant disciplinary history information on the applicant's Form 8-R; or
(ii) An event has occurred leading to a required disclosure on the applicant's Form 8-R.
(a) * * *
(5) The fingerprints of the applicant, if a sole proprietor, and of each principal (including each branch office manager) thereof on fingerprint cards provided by the National Futures Association for that purpose.
(a) A temporary license issued pursuant to § 3.44 shall terminate:
(6) Immediately upon failure to comply with an order to pay a civil monetary penalty, restitution, or disgorgement within the time permitted under section 6(e), 6b, or 6c(d) of the Act;
(8) Immediately upon failure to comply with an award in an arbitration proceeding conducted pursuant to the rules of a designated contract market, swap execution facility, or registered futures association within the time specified in section 10(g) of the National Futures Association's Code of Arbitration or the comparable time period specified in the rules of a contract market, swap execution facility, or other appropriate arbitration forum.
(10) Immediately upon notice to the applicant and the guarantor futures commission merchant that:
(i) The applicant or any principal (including any branch officer manager) failed to disclose relevant disciplinary history information on the applicant's Form 7-R or on a principal's Form 8-R; or
(ii) An event has occurred leading to a required disclosure on the applicant's Form 7-R or on a principal's Form 8-R.
(b) * * *
(1) * * *
(iv) The statement accompanying the notice referred to in paragraph (a)(2) of this section and, in an effort to have his registration modified rather than suspended, the Supplemental Sponsor Certification Statement signed by a sponsor, supervising floor broker or, in the case of a floor trader, a supervising registrant, principal, contract market, or swap execution facility, as appropriate for the registrant in accordance with § 3.60(b)(2)(i) and who meets the standards set forth in § 3.60(b)(2)(i)(A) and (C).
(b) * * *
(2)(i) In the response, if the person is not an associated person, a floor broker or a floor trader or an applicant for registration in any of those capacities, the applicant or registrant shall also state whether he or she intends to show that registration would not pose a substantial risk to the public despite the existence of the disqualification set forth in the notice. If the person is an associated person, a floor broker or a floor trader or an applicant for registration in any of those capacities, the applicant or registrant shall also state whether he or she intends to show that full, conditioned or restricted registration would not pose a substantial risk to the public despite the existence of the disqualification set forth in the notice. If the person is an associated person or an applicant for registration as an associated person and intends to make such a showing, he or she must also submit a letter signed by an officer or general partner authorized to bind the sponsor whereby the sponsor agrees to sign a Supplemental Sponsor Certification Statement and supervise compliance with any conditions or restrictions that may be imposed on the applicant or registrant as a result of a statutory disqualification proceeding under this section; if the person is a floor broker or a floor trader or an applicant for registration in either capacity and intends to make such a showing, he or she must, in the case of a floor broker or applicant for registration as a floor broker, also submit a letter signed by his employer or if he or she has no employer by another floor broker or, in the case of a floor trader or applicant for registration
(f) * * *
(3) If the person is an associated person, a floor broker or a floor trader or an applicant for registration in any of those capacities, evidence that the applicant's or registrant's registration on a conditioned or restricted basis would be subject to supervisory controls likely both to detect future wrongdoing by the applicant or registrant and protect the public from any harm arising from future wrongdoing by the applicant or registrant. Any decision providing for a conditioned or restricted registration shall take into consideration the applicant's or registrant's statutory disqualification and the time period remaining on such statutory disqualification, and shall fix a time period after which the registrant and his or her sponsor, supervising employer or floor broker, or supervising registrant, principal, contract market, or swap execution facility may petition to lift or modify the conditions or restrictions in accordance with § 3.64.
(l) The failure of any sponsor, supervising employer or floor broker, or supervising registrant, principal, contract market, or swap execution facility to fulfill its obligations with respect to supervision or monitoring of a conditioned or restricted registrant as agreed to in the Supplemental Sponsor Certification Statement shall be deemed a violation of this rule under the Act.
(a) * * *
(2) In the petition, the registrant and his or her sponsor, supervising employer or floor broker, or supervising registrant, principal, contract market, or swap execution facility shall be limited to a showing, by affidavit, that the conditions or restrictions have been satisfied pursuant to the order which imposed them. The affidavit must be sworn to by a person with actual knowledge of the registrant's activities on behalf of the sponsor, supervising employer or floor broker, or supervising registrant, principal, contract market or swap execution facility.
(a) The Commission hereby delegates, until such time as it orders otherwise, to the Director of the Division of Swap Dealer and Intermediary Oversight or his or her designee the authority to grant or deny requests filed pursuant to § 3.12(g). The Director of the Division of Swap Dealer and Intermediary Oversight may submit to the Commission for its consideration any matter which has been delegated to him pursuant to § 3.12(g). The Commission hereby delegates, until such time as it orders otherwise, the authority to perform all functions specified in subparts B through D of this part to the persons authorized to perform them thereunder.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Gensler and Commissioners Sommers, Chilton and Wetjen voted in the affirmative; Commissioner O'Malia voted in the negative.
I support the final rule to amend certain provisions of Part 3 of the Commission's regulations regarding the registration of intermediaries. The final amendments are necessary to conform existing regulations to the new requirements in the Dodd-Frank Wall Street Reform and Consumer Protection Act.
The final rule would amend Part 3 to facilitate the extension of the existing registration process to apply to new categories of registrants, such as swap dealers and major swap participants. Customers will benefit from the increased transparency of the registration process. The final amendments also modernize existing provisions that will apply to all Commission registrants.
In addition, the Commission has made technical changes to permit legal entities (in addition to natural persons) to register as floor traders. This change was required to implement the exception from the definition of a swap dealer for floor traders that trade cleared swaps on swap execution facilities.
I respectfully dissent with the Commodity Futures Trading Commission's (“Commission”) final rule to adopt certain conforming amendments to part 3 of the Commission's regulations regarding the registration of intermediaries.
The Commission and NFA should follow the lead of the Securities and Exchange Commission (“SEC”) and the Financial Industry Regulatory Authority (“FINRA”) in terms of how professional and disciplinary background information is disclosed to the potential customers of SEC-registered broker-dealers. FINRA's BrokerCheck® is a tool that provides potential customers with detailed information regarding the professional backgrounds of current and former FINRA-registered brokerage firms and brokers, as well as investment adviser firms andrepresentatives.
Today's futures markets need better technology solutions that will help futures customers make informed choices about the Commission-registered intermediaries with which they may wish to do business. Instead of promising to take action in the future, the Commission's final rule should do everything it can right now to protect customer funds. I believe the final rule should enable the public to receive access to information about current and formerly registered intermediaries who may seek to attain
Office of the Secretary, Food and Drug Administration, HHS.
Direct final rule.
The Food and Drug Administration (FDA) of the Department of Health and Human Services (HHS) will be implementing a new system of records, 09-10-0020, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.” HHS/FDA is exempting this system of records from certain requirements of the Privacy Act to protect the integrity of FDA's scientific misconduct inquiries and investigations and to protect the identity of confidential sources in such investigations. HHS/FDA is issuing a direct final rule for this action because the Agency expects that there will be no significant adverse comment on this rule.
This rule is effective January 10, 2013. Submit either electronic or written comments by November 13, 2012. If HHS/FDA receives no significant adverse comments within the specified comment period, the Agency will publish a document confirming the effective date of the final rule in the
You may submit comments, identified by Docket No. FDA-2011-N-0252, by any of the following methods:
Submit electronic comments in the following way:
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Submit written submissions in the following ways:
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Frederick Sadler, Division of Freedom of Information, Office of Public Information and Library Services, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 301-796-8975,
FDA is implementing a new system of records called the “FDA Records Related to Research Misconduct Proceedings.” The purpose of this system of records is to implement FDA's responsibilities for addressing research integrity and misconduct, in accordance with the Public Health Service (PHS) Policies on Research Misconduct (42 CFR part 93), for research performed by persons who are FDA employees, agents of the Agency, or who are affiliated with the Agency by contract or agreement. The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds.” (42 CFR 93.100(a)). The PHS Policies on Research Misconduct provide for a number of HHS administrative actions that can be taken in response to a research misconduct proceeding, such as the suspension of a contract, debarment, or an adverse personnel action against a Federal employee (42 CFR 93.407). In addition, under 42 CFR 93.401, FDA shall at any time during a research misconduct proceeding notify HHS' Office of Research Integrity (ORI) immediately to ensure that FDA's Office of Criminal Investigations, HHS Office of Inspector General, the Department of Justice, or other appropriate law enforcement agencies, are notified if there is a reasonable indication of possible violations of civil or criminal law.
FDA's new system of records will be modeled after the system of records maintained by ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OPHS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 75 FR 44847, August 31, 2009).
FDA's scientific misconduct inquiry and investigation records are located in the Office of the Chief Scientist in FDA's Office of the Commissioner. FDA is preparing to organize and operate these records as a “system of records” as that term is defined by the Privacy Act. FDA is publishing a System of Records Notice (SORN) for this system in the
Under the Privacy Act (5 U.S.C. 552a), individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Privacy Act permits certain types of systems to be exempt from some of the Privacy Act requirements. For example, section 552a(k)(2) of the Privacy Act allows Agency heads to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes. This exemption's effect on the record access provision is qualified in that if the maintenance of the material results in the denial of any right, privilege, or benefit that the individual would otherwise be entitled to by Federal law, the individual must be granted access to the material except to the extent that the access would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence. In addition, section 552a(k)(5) of the Privacy Act permits an Agency to
As stated previously in this document, FDA may take administrative action in response to a research misconduct proceeding and, where there is a reasonable indication that a civil or criminal fraud may have taken place, will refer the matter to the appropriate investigative body. As such, FDA scientific misconduct inquiry and investigative files are records compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of records. Moreover, where misconduct inquiry and investigative files are compiled solely for the purpose of making determinations as to the suitability for appointment as special Government employees or eligibility for Federal contracts from PHS agencies, the subsection (k)(5) exemption is applicable.
HHS/FDA is therefore exempting this system under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access and amendment provisions of the Act (subsections (c)(3), (d)(1) to (d)(4), (e)(4)(G) and (e)(4)(H), and (f)). As described in the following paragraphs, the exemptions are necessary in order to maintain the integrity of the research misconduct proceedings and to ensure that the FDA's efforts to obtain accurate and objective information will not be hindered. However, consideration would be given to requests for notification, access, and amendment that are addressed to FDA's Research Integrity Officer (System Manager) or Privacy Act Coordinator. The specific rationales for applying each of these exemptions are as follows:
•
•
•
•
•
As stated previously in this document, FDA's new system of records will be modeled after the system of records maintained by ORI. ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, accounting, and amendment provisions of the Privacy Act, to ensure that these records will not be disclosed inappropriately (59 FR 36717, July 19, 1994). Likewise, FDA believes that exempting the new system, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA,” from the same Privacy Act provisions is essential to ensure that material in FDA's files related to research misconduct proceedings is not disclosed inappropriately. Except for information that would reveal the identity of a source who was expressly promised confidentiality, the access exemption will not prohibit HHS/FDA from granting respondents' access requests consistent with the PHS Policies on Research Misconduct (42 CFR Part 93), including in those cases in which a finding of research misconduct has become final and an administrative action has been imposed.
FDA has determined that the subject of this rulemaking is suitable for a direct final rule. HHS/FDA will be implementing a new system of records, 09-10-0020, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.” HHS/FDA is exempting this system of records from certain requirements of the Privacy Act to protect records compiled in the course of scientific misconduct inquiries and investigations and to protect the identity of confidential sources in such investigations. The Agency does not anticipate receiving any significant adverse comment on this rule.
Consistent with FDA's procedures on direct final rulemaking, we are publishing elsewhere in this issue of the
FDA is providing a comment period on the direct final rule of 75 days after the date of publication in the Federal Register. If FDA receives any significant adverse comment, we intend to withdraw this direct final rule before its effective date by publication of a notice in the
If FDA does not receive significant adverse comment, the Agency will publish a document in the
A full description of FDA's policy on direct final rule procedures may be found in a guidance document published in the
HHS/FDA has examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this final rule is not a significant regulatory action under Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule imposes no duties or obligations on small entities, the Agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
Interested persons may submit to the Division of Dockets Management (see
Privacy.
Privacy.
Therefore, the Department of Health and Human Services is amending 21 CFR part 21 and 45 CFR part 5b to read as follows:
21 U.S.C. 371; 5 U.S.C. 552, 552a.
(d) Records in the following Food and Drug Administration Privacy Act Records Systems are exempt under 5 U.S.C. 552a(k)(2) and (k)(5) from the provisions enumerated in paragraph (a)(1) through paragraph (3) of this section: FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC, 09-10-0020.
5 U.S.C. 301, 5 U.S.C. 552a.
(b) * * *
(2) * * *
(vii) * * *
(C) FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of Long Island Sound, in the vicinity of Sands Point, NY. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays. This rule is intended to restrict all vessels from a portion of Long Island Sound before, during, and immediately after the fireworks event.
This rule will be effective from 10:30 p.m. on October 6, 2012 until 11:45 p.m. on October 7, 2012. This rule will be enforced from 10:30 p.m. to 11:45 p.m. on October 6, 2012, and from 10:30 p.m. to 11:45 p.m. on October 7, 2012.
Documents mentioned in this preamble are part of docket USCG-2012-0618. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Junior Grade Kristopher Kesting, Sector NY Waterways Management, U.S. Coast Guard; Telephone (718) 354-4154, E-Mail
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 because sufficient information about the event was not received in time to publish a NPRM followed by a final rule before the effective date, thus making the publication of a NPRM impractical. The Coast Guard received the information about the event on June 25, 2012. Any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest, since immediate action is needed to provide for the safety of life and property on navigable waters from the hazards associated with fireworks including unexpected detonation and burning debris.
The rule must become effective on the date specified in order to provide for the safety of spectators and vessels operating in the area near this event. Delaying this rule would be impracticable and contrary to the public interest, and would expose spectators and vessels to the hazards associated with the fireworks event.
The legal basis for this rule is 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, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
This temporary safety zone is necessary to ensure the safety of spectators and vessels from hazards associated with the fireworks display.
This rule establishes a temporary safety zone on the navigable waters of Long Island Sound, in the vicinity of Sands Point, NY. All persons and vessels shall comply with the instructions of the Captain of the Port (COTP) New York or the designated representative during the enforcement of the temporary safety zone. Entering into, transiting through, or anchoring within the temporary safety zone is prohibited unless authorized by the COTP New York, or the designated representative.
Based on the inherent hazards associated with fireworks, the COTP New York has determined that fireworks launches in close proximity to water crafts pose a significant risk to public safety and property. The combination of increased number of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, and debris, especially burning debris falling on passing or spectator vessels has the potential to result in serious injuries or fatalities. This temporary safety zone will restrict vessels from a portion of Long Island Sound around the location of the fireworks launch platform before, during, and immediately after the fireworks display.
The Coast Guard has determined that this regulated area will not have a significant impact on vessel traffic due to its temporary nature and limited size and the fact that vessels are allowed to transit the navigable waters outside of the regulated area.
Advance public notifications will also be made to the local mariners through appropriate means, which will include, but are not limited to, the Local Notice to Mariners as well as Broadcast Notice to Mariners.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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's implementation of this temporary safety zone will be of short duration and is designed to minimize the impact to vessel traffic on the navigable waters. This temporary safety zone will only be enforced for approximately 75 minutes, in the late evening. Due to the location, vessels will be able to transit around the zone in a safe manner.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
(1) This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of the navigable waters in the vicinity of the marine event during the effective period.
(2) This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for 75 minutes; late at night when vessel traffic is low, vessel traffic could pass safely around the safety zone, and the Coast Guard will notify mariners before activating the zone by appropriate means including but not limited to Local Notice to Mariners and Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a temporary safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C 1231; 46 U.S.C Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(1)
(2)
(3)
(d)
(2) No vessels, except for fireworks barge and accompanying vessels, will be allowed to transit the safety zone without the permission of the COTP.
(3) All persons and vessels shall comply with the instructions of the COTP or the designated representative. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
(4) Vessel operators desiring to enter or operate within the regulated area shall contact the COTP or the designated representative via VHF channel 16 or 718-354-4353 (Sector New York command center) to obtain permission to do so.
(5) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through the Local Notice to Mariners, unless authorized by COTP or the designated representative.
(6) 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.
(7) The COTP or the 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.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action on the Regional Haze State Implementation Plan (SIP) submitted by the State of New York. EPA is approving seventeen source-specific SIP revisions containing permits for Best Available Retrofit Technology, revisions for Title 6 of the New York Codes, Rules and Regulations, Part 249, “Best Available Retrofit Technology (BART)” and section 19-0325 of the New York Environmental Conservation Law which regulates the sulfur content of fuel oil. These revisions to the SIP addressing regional haze were submitted by the State of New York on March 15, 2010, and supplemented on August 2, 2010, April 16, 2012 and July 2, 2012. These SIP revisions were submitted to address Clean Air Act requirements and EPA's rules for states to prevent and remedy future and existing anthropogenic impairment of visibility in mandatory Class I areas through a regional haze program. Although New York State addressed most of the issues identified in EPA's proposal, EPA is promulgating a Federal Implementation Plan to address two sources where EPA is disapproving New York's BART determinations.
This rule is effective on September 27, 2012.
EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2012-0296. All documents in the docket are listed on the
Robert F. Kelly, Air Planning Section, Air Programs Branch, EPA Region 2, 290 Broadway, New York, New York 10007-1866. The telephone number is (212) 637-4249. Mr. Kelly can also be reached via electronic mail at
Throughout this document, wherever “Agency,” “we,” “us,” or “our” is used, we mean the EPA.
EPA is approving New York's State Implementation Plan (SIP) revisions addressing regional haze submitted on March 15, 2010, and supplemented on August 2, 2010, April 16, 2012, and July 2, 2012. EPA is supplementing New York's SIP with a Federal Implementation Plan (FIP) for three units at two BART sources where EPA is disapproving these BART determinations. The following paragraphs summarize each of EPA's actions.
EPA is approving aspects of New York's Regional Haze SIP revision as follows:
• The measures enacted by New York are shown to produce emission reductions that are sufficient to meet New York's share of the emission reductions needed to meet reasonable progress goals (found at 40 CFR 51.308(d)(1)) at Class I areas affected by New York's emissions.
• New York's Long Term Strategy, since New York submitted final approvable permit modifications for all facilities on April 16, 2012 and July 2, 2012 (except for the Roseton and Danskammer Generating Stations), in a timely manner with the level of control in EPA's April 25, 2012 proposal. EPA's FIP contains BART determinations and emission limits for the Roseton and Danskammer Generating Stations.
• New York's SIP revision consisting of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR), Part 249, “Best Available Retrofit Technology (BART).”
• New York's SIP revision consisting of section 19-0325 of the New York Environmental Conservation Law which regulates the sulfur content of fuel oil.
EPA is approving the following facility BART determinations and
EPA is disapproving the following BART determinations:
• New York's Sulfur Dioxide (SO
• New York's SO
EPA is promulgating a FIP to address the BART determinations identified above in our partial disapproval of New York's Regional Haze SIP.
EPA is taking this action pursuant to section 110 of the Clean Air Act (the Act or CAA). For additional details on EPA's analysis and findings, the reader is referred to the April 25, 2012 proposal (77 FR 24794) and the May 9, 2012 Notice of Data Availability (77 FR 27162). New York's entire Regional Haze SIP revisions and the full text of the public comments are included in the Docket (EPA-R02-OAR-2012-0296) and available at
On April 25, 2012, EPA proposed to take action on a revision to the SIP addressing regional haze submitted by New York. In that proposal, EPA proposed to address through a FIP certain requirements not addressed in New York's regional haze SIP submission or, alternatively, to approve a substantively identical SIP revision by New York, should the state timely submit such a revision. In two letters, both dated April 16, 2012, New York submitted the additional materials relevant to our proposed action on its regional haze SIP submission, including proposed SIP revisions addressing the requirements for BART for a number of sources and addressing the New York State Law that regulates the sulfur content of fuel oil. Subsequently, on May 9, 2012 (77 FR 27162), EPA published a notice of data availability to notify the public that New York submitted additional information to supplement New York's Regional Haze SIP.
As discussed in the May 9, 2012 notice, EPA was aware that New York intended to submit additional information relevant to the action EPA was proposing on New York's Regional Haze SIP. EPA, therefore, discussed in its proposal the possible actions EPA would take should this information be timely submitted. EPA included in the record the draft information that New York was in the process of finalizing and submitting as part of its SIP revision. EPA evaluated this draft information as part of the Agency's proposed action on New York's Regional Haze SIP. EPA's May 9, 2012 notice indicated that EPA's final action will be based on the proposed rulemaking, the additional information identified in the notice of data availability, and an assessment of any public comments that may be received. On July 2, 2012, New York submitted the remaining adopted permits implementing BART which were not included in the April 16, 2012 submission.
New York's April 16, 2012 SIP revisions requested that EPA take action on proposed SIP revisions from New York in parallel with the state's processing of the following draft Title V permits that the state intended to submit as SIP revisions to meet the BART requirement: Bowline Generating Station, Danskammer Generating Station, Kodak Operations at Eastman Business Park, Oswego Harbor Power, Owens-Corning Insulating Systems, and Syracuse Energy Corporation.
New York's April 16, 2012 SIP revisions also requested processing of the following adopted Title V permits implementing BART for the following facilities: ALCOA Massena Operations (West Plant), Arthur Kill Generating Station, Con Edison 59th Street Station, EF Barrett Power Station, Holcim (US) Inc—Catskill Plant, International Paper Ticonderoga Mill, Lafarge Building Materials, Lehigh Northeast Cement, Northport Power Station, Ravenswood Generating Station, Ravenswood Steam Plant, Roseton Generating Station
Lastly, New York submitted a letter dated July 2, 2012 containing SIP revisions for the remaining adopted Title V permits implementing BART for five of the following facilities previously discussed in New York's April 16, 2012 letter: Bowline Generating Station, Kodak Operations at Eastman Business Park, Oswego Harbor Power, Owens-Corning Insulating Systems, and Syracuse Energy Corporation. As further discussed in the Response to Comments below, New York also submitted an updated permit for Lehigh Northeast Cement.
New York did not make any substantive changes to the source specific Title V permits to incorporate BART other than those discussed in EPA's April 25, 2012 proposal and May 9, 2012 notice or as discussed in the Response to Comments below. Since the SIP revisions match the terms of our proposed FIP, and the SIP revisions have been adopted by New York and submitted formally to EPA for incorporation into the SIP, EPA is approving the following facility BART determinations and emissions limits: ALCOA Massena Operations (West Plant), Arthur Kill Generating Station, Bowline Generating Station, Con Edison 59th Street Station, EF Barrett Power Station, Holcim (US) Inc—Catskill Plant, International Paper Ticonderoga Mill, Kodak Operations at Eastman Business Park, Lafarge Building Materials, Lehigh Northeast Cement, Northport Power Station, Oswego Harbor Power, Owens-Corning Insulating Systems, Ravenswood Generating Station, Ravenswood Steam Plant, Roseton Generating Station (NO
New York promulgated Part 249 to require BART eligible facilities to
New York's April 16, 2012 SIP revisions request that EPA include in New York's Regional Haze SIP the New York State legislation regulating the sulfur content of fuel oil, Bill Number S1145C, which amends the New York Environmental Conservation Law to include a new section 19-0325, effective July 15, 2010. EPA's May 9, 2012 notice discussed New York's SIP revision request and EPA's proposed approval of this request.
Major SO
As discussed in EPA's April 25, 2012 proposal, in the event New York did not submit a SIP revision with final permit modifications for all BART sources, which match the terms of our proposed FIP, EPA proposed to publish a final rulemaking with a FIP for those BART sources. While New York's revised SIP covered most of the units addressed in EPA's proposal, it did not include final BART permit modifications consistent with our proposed FIP for certain of the units at Dynegy's Roseton and Danskammer Generating Stations. Therefore EPA is disapproving those portions of the SIP and promulgating a FIP addressing the SO
The final FIP includes the following elements:
• NO
• SO
• PM
• SO
• Monitoring, record-keeping, and reporting requirements for the above three units to ensure compliance with these emission limitations.
EPA's April 25, 2012 proposal contained proposed regulatory language for § 52.1686 of title 40 of the Code of Federal Regulations (CFR) for the purpose of adding new provisions containing EPA's FIP for Regional Haze. EPA notes that since New York submitted SIP revisions to address most of EPA's proposed FIP, EPA is finalizing only the regulatory language in section 51.1686 that covers EPA's FIP for the Roseton and Danskammer Generating Stations.
We encourage New York at any time to submit a SIP revision to incorporate provisions that match the terms of our FIP, or relevant portion thereof. If EPA were to approve such a SIP revision, after public notice and comment, the SIP approved provisions could replace the FIP provisions.
EPA received several comments from the following parties in response to our April 25, 2012 proposal and May 9, 2012 notice of data availability: ALCOA Massena Operations (ALCOA), Dynegy Northeast Generation, Inc. (Dynegy), Earthjustice on behalf of the National Parks Conservation Association and Sierra Club (Earthjustice), GenOn Bowline, LLC (Bowline), Lehigh Northeast Cement Group (Lehigh), New York State Department of Environmental Conservation (New York), and the United States Forest Service (US Forest Service). A summary of the comments and EPA's responses are provided below.
EPA's April 25, 2012 proposal indicated NO
• By July 1, 2014, NO
• By July 1, 2014, NO
• By July 1, 2014, oil-firing is limited to 3.1 million barrels during the ozone season and 4.6 million barrels during the non-ozone season.
• The limit for oil and gas dual fuel firing periods will be heat input weighted between 0.15 lb/MMBtu and 0.25 lb/MMBtu.
The correct NO
With respect to the BART compliance date, EPA's April 25, 2012 proposal indicated a compliance date of January 1, 2014, consistent with the compliance date contained in New York's BART regulation Part 249. New York issued final BART permit modifications for the Bowline Units requiring compliance by July 1, 2014. While the July 1, 2014 compliance date is six months later than the January 1, 2014 compliance date in New York's Part 249, EPA has determined that the July 1, 2014 compliance date is still consistent with EPA's BART Guidance for compliance as expeditiously as possible but no later
EPA notes that the previous versions of the BART Permit modifications indicated these emission limits do not apply during start-up and shut-down periods. However, EPA informed New York that the BART emission limits must apply at all times. Therefore, the final BART determinations and final BART Title V permit modification submitted to EPA as part of the July 2, 2012 SIP revisions do not contain any exclusions for start-up and shut-down periods. Lastly, EPA did not receive any other comments related to Bowline's BART determinations or permit limits, except from Bowline itself. In response to Bowline's comments and additional supporting analyses and documentation provided by Bowline and New York, EPA is therefore approving Bowline's BART determinations and BART emission limit permit conditions presented above.
EPA did not receive any other comments related to Lehigh's BART determinations or permit limits, except from Lehigh and New York. In response to these comments on EPA's April 25, 2012 proposal, and additional supporting analyses and documentation provided by Lehigh and New York, EPA is therefore approving Lehigh's BART determinations and BART emission limit permit conditions presented above since the revised Title V permit is consistent with the terms of our proposed FIP, has been adopted by New York, and submitted formally to EPA for incorporation into the SIP.
New York's proposed BART determination for the Danskammer facility listed a combination of policies and practices as a control option for both SO
The engineering study identified other control options, including Flue Gas Desulfurization (“FGD”) options with Lime Based Spray Dryer; Circulating Dry Scrubber and Wet Limestone; options for Dry Sorbent Injection of minerals such as Trona; combustion of alternative coals; 100% combustion of natural gas; and co-firing natural gas. In accordance with Step Two of the BART Guidelines, the facility evaluated the technical feasibility of each control option, concluding that all options were technically feasible for the Danskammer facility. It then evaluated each control option's cost effectiveness, conducted impact analyses on cost of compliance, energy impacts, and nonair quality environmental impacts, and modeled selected control option's visibility impact using the CALPUFF modeling program; all in accordance with Steps Two through Four of the BART Guidelines. 40 CFR part 51 App. Y.
As required by New York's BART regulation, Part 249, the facility conducted a side-by-side comparison and the facility showed that the use of an emission limitation based on the application of the above practices/processes was BART for the Danskammer facility.
However, EPA's own analysis of the combination of processes/practices identified by Dynegy and the proposed determination by New York as BART showed that a lower emission limitation than that contained in the state's plan is achievable with this technology. EPA conducted its own evaluation and set a lower estimated emission limitation, 0.09 lb/MMBtu, as a control option. It concluded that “these same control option strategies can achieve a more stringent SO
Since EPA's proposed BART emission limitation was set with reference to processes/practices evaluated using the BART Guidelines, and since processes/practices can be considered as the “best system of emission reduction” pursuant to those same guidelines, EPA's proposed emission limitation is not arbitrary. 40 CFR part 51 App. Y. Therefore EPA is finalizing the SO
Secondly, Earthjustice comments and provides detailed technical reasons as to why SCR should be considered BART for this facility with a NO
Dynegy evaluated SCR plus flue gas recirculation (FGR) using a control efficiency of 91.0% that is equivalent to a NO
Furthermore, Dynegy's visibility analysis included a summary of the number of days that exceed 1.0 dv, 0.5 dv and 0.1 dv for each NO
Based upon the two visibility analyses described above, EPA concludes that Earthjustice's recommended BART technology, i.e., SCR, with an emission limit of 0.05 lb/MMBtu, would not be expected to provide any significant improvement in visibility at the seven Class I areas over Dynegy's proposed BART implementation of a combination of specific possible controls with an emission limit of 0.12 lb/MMBtu. Therefore, EPA concludes that NO
EPA concludes that it appropriately took into account the visibility impacts across all seven of the impacted Class I areas in deciding to adopt more stringent BART limits. There are many large sources of pollutants that reduce visibility and impact several Class I areas in the northeastern United States. EPA has included, in our review of the multi-factor analysis, the impact these major sources have on more than one Class I area. The smaller impacts from these major sources combine with impacts from other major sources in the northeast to have important impacts on visibility in these protected areas. While EPA is primarily concerned with impacts at the Class I area nearest each major source, EPA encourages cost-effective control strategies that improve visibility across many Class I areas. Reductions in visibility-impairing pollutants from a major facility, with reduced impacts from similarly large sources in other areas and other states, will go a long way toward improving visibility in these areas.
In summary, EPA determined the existing electrostatic precipitator control represents the BART level of control for PM for this particular facility.
Table 9 of Appendix W is the final MANE-VU emission inventory which was modeled to show that implementing the MANE-VU measures would improve visibility at MANE-VU's Class I areas sufficiently to meet the progress goals for 2018 for these areas. For the final emission inventory described in Appendix W, MANE-VU increased the emissions of SO
New York's existing sulfur in fuel rule does not cover all of the types of fuel oil included in the program agreed to by the MANE-VU states. New York estimates that there is a difference of 17,669 tons per year of SO
New York indicates it is in the process of developing regulations to expand the low sulfur fuel oil program to achieve reductions before 2018. EPA fully supports New York's timely development and adoption of these regulations.
EPA has evaluated the proposed revisions to the SIP submitted by the State of New York that address regional haze for the first planning period from 2008 through 2018. EPA is partially approving and partially disapproving the revisions to the SIP, which address the Regional Haze requirements of the Clean Air Act for the first implementation period. This approval includes the Reasonable Progress portion of the plan, New York's source-specific SIP revisions for implementation of BART for 17 BART-subject sources, 6 NYCRR Part 249, “Best Available Retrofit Technology (BART),” effective May 6, 2010, and section 19-0325 of the New York Environmental Conservation Law, effective July 15, 2010, which regulates the sulfur content of fuel oil.
EPA is finalizing amendments to 40 CFR 52.1670(d) “EPA-Approved New York Source-Specific Provisions” to incorporate those sources with new emission limitations or requirements that resulted from the BART determinations that are not part of the applicable SIP.
EPA is promulgating a partial FIP to address the deficiencies in the plan resulting from our partial disapproval of New York's Regional Haze SIP. Specifically, EPA's FIP contains BART determinations and emission limits for the Roseton and Danskammer Generating Stations.
We have fully considered all significant comments on our proposal, and, except as noted in sections II, III and IV above, have concluded that no other changes from our proposal are warranted. Our action is based on an evaluation of New York's SIP submittals
This action will promulgate emission requirements for two facilities and is therefore not a rule of general applicability. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
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 Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR Part 9.
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 a 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 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 this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The Regional Haze FIP that EPA is finalizing for purposes of the regional haze program consists of imposing Federal controls to meet the BART requirement for NO
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. It is a rule of particular applicability that affects only two facilities in the State of New York. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This rule 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 rule only applies to two facilities in the State of New York.
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 addresses the State not fully meeting its obligation to adopt a SIP that meets the regional haze requirements under the CAA. Thus, Executive Order 13132 does not apply to this action. Although section 6 of Executive Order 13132 does not apply to this action, EPA did consult with the state government in developing this action. A summary of the concerns raised during the comment period and EPA's response to those concerns is provided in section IV of this preamble.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the action EPA is taking neither imposes substantial direct compliance costs on tribal governments, nor preempts tribal law. It will not have substantial direct effects on tribal government. Thus, Executive Order 13175 does not apply to this 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 action is not subject to EO 13045 because it implements specific standards established by Congress in statutes. However, to the extent this rule will limit emissions, the rule will have a beneficial effect on children's health by reducing air pollution.
This action 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 (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 action does not involve technical standards. Today's action does not require the public to perform activities conducive to the use of voluntary consensus standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629, February 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.
We have determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This rule limits emissions of NO
The Congressional Review Act, 5 U.S.C 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 2012. Pursuant to
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401-7671q.
The additions and revisions reads as follows:
(c) * * *
(d) * * *
(e) * * *
(a)
(b)
(c)
(2) These emission limitations shall apply at all times, including startups, shutdowns, emergencies, and malfunctions.
(d)
(e)
(2)
(ii) An hourly average SO
(iii) Data reported to meet the requirements of this section shall not include data substituted using the missing data substitution procedures of subpart D of 40 CFR part 75, nor shall the data have been bias adjusted according to the procedures of 40 CFR part 75.
(f)
Fuel supplier certification shall include the following information:
(1) For distillate oil:
(i) The name of the oil supplier;
(ii) A statement from the oil supplier that the oil complies with the specifications under the definition of distillate oil in § 60.41c; and
(iii) The sulfur content or maximum sulfur content of the oil.
(2) For residual oil:
(i) The name of the oil supplier;
(ii) The location of the oil when the sample was drawn for analysis to determine the sulfur content of the oil, specifically including whether the oil was sampled as delivered to the affected facility, or whether the sample was drawn from oil in storage at the oil supplier's or oil refiner's facility, or other location;
(iii) The sulfur content of the oil from which the shipment came (or of the shipment itself); and
(iv) The method used to determine the sulfur content of the oil.
(3) For coal:
(i) The name of the coal supplier;
(ii) The location of the coal when the sample was collected for analysis to determine the properties of the coal, specifically including whether the coal was sampled as delivered to the affected facility or whether the sample was collected from coal in storage at the mine, at a coal preparation plant, at a coal supplier's facility, or at another location. The certification shall include the name of the coal mine (and coal seam), coal storage facility, or coal preparation plant (where the sample was collected);
(iii) The results of the analysis of the coal from which the shipment came (or of the shipment itself) including the sulfur content, moisture content, ash content, and heat content; and
(iv) The methods used to determine the properties of the coal.
(4) For other fuels:
(i) The name of the supplier of the fuel;
(ii) The potential sulfur emissions rate or maximum potential sulfur emissions rate of the fuel in nanograms per joule (ng/J) heat input; and
(iii) The method used to determine the potential sulfur emissions rate of the fuel.
(g)
(h)
(1) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results.
(2) All fuel supplier certifications and information identified in paragraph (f)(1), (2), (3), or (4) of this section, as applicable.
(3) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR Part 75.
(4) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS.
(5) Any other records required by 40 CFR part 75.
(i)
(1) Owner/operator shall submit quarterly excess emissions reports no later than the 30th day following the end of each calendar quarter. Excess emissions means emissions that exceed the emissions limits specified in paragraph (c) of this section. The reports shall include the magnitude, date(s), and duration of each period of excess emissions, specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted.
(2) Owner/operator shall submit quarterly CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, any CEMS repairs or adjustments, and results of any CEMS performance tests required by 40 CFR part 75 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(3) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, such information shall be stated in the report.
(4) Owner/operator shall submit semi-annual fuel certification reports no later
(5) Owner/operator shall submit an annual emissions limitation calculation report no later than the 30th day following the end of the calendar year or quarter if a rolling average is required in paragraph (c).
(j)
(2) Owner/operator shall submit semi-annual progress reports on construction of any such equipment.
(3) Owner/operator shall submit notification of initial startup of any such equipment.
(k)
(l)
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania on April 12, 2010, as amended on August 3, 2012. The SIP revision demonstrates attainment of the 1997 annual fine particulate matter (PM
This final rule is effective on September 27, 2012.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2010-0391. All documents in the docket are listed in the
Rose Quinto, (215) 814-2182, or by email at
On November 2, 2011 (76 FR 67640), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of the Pennsylvania 1997 annual PM
On November 27, 2009 (74 FR 62251), EPA published findings of failure to submit a SIP revision that demonstrates attainment of the 1997 PM
On May 12, 2005 (76 FR 70093), EPA published the Clean Air Interstate Rule (CAIR) that addresses the interstate transport requirements of the CAA with respect to the 1997 ozone and 1997 PM
On December 30, 2011, the Court issued an order addressing the status of the Transport Rule and CAIR in response to motions filed by numerous parties seeking a stay of the Transport Rule pending judicial review. In that order, the Court stayed the Transport Rule pending the Court's resolution of the petitions for review of that rule in
EPA does not believe that the circumstances set forth above preclude EPA from approving the April 12, 2012 Pennsylvania attainment plan as amended on August 3, 2012 for the Philadelphia Area. While the monitoring data that show the Philadelphia Area attained the 1997 annual PM
Most importantly, EPA notes that this action is approving an attainment plan that demonstrated that the Philadelphia Area would attain the 1997 annual PM
Pennsylvania's SIP revision demonstrates attainment of the 1997 annual PM
On August 3, 2012, Michael L. Krancer, Secretary of PADEP sent a letter to Shawn M. Garvin, Regional Administrator of EPA Region III withdrawing the analysis of RACM/RACT which had been included in the April 12, 2010 attainment plan since the requirement for the RACM/RACT analysis was suspended by the May 16, 2012 (77 FR 28782) clean data determination pursuant to 40 CFR 51.1004(c). Specifically, PADEP withdrew section IV.B. in its entirety, pages 29-31 in part, and Appendix G in its entirety.
Other specific requirements of the 1997 annual PM
EPA reviewed the methodology that PADEP used to estimate marine vessel emissions and found that proper guidance was followed pertaining to gathering characteristics of the port that included the types of vessels, the shipping traffic, arrival information, and any limitations on the data gathered. EPA verified that the marine vessels' emissions were accounted for in the supporting spreadsheets provided for nonroad emission estimates. EPA also verified that land-based sources for cargo handling equipment, such as terminal tractors, cranes, container handlers and forklifts, were accounted for in the nonroad spreadsheets by county provided by PADEP.
EPA is approving Pennsylvania's April 12, 2010 attainment plan as amended on August 3, 2012 for the 1997 annual PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
•Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to the Pennsylvania 1997 annual PM
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
Department of Health and Human Services.
Direct Final rule.
The Department of Health and Human Services (HHS or Department), through the National Institutes of Health (NIH), is implementing a new system of records, 09-25-0223, “NIH Records Related to Research Misconduct Proceedings, HHS/NIH.” HHS is exempting this system of records from certain provisions of the Privacy Act to protect the integrity of NIH research misconduct proceedings and to protect the identity of confidential sources in such proceedings. HHS is issuing a direct final rule for this action because the agency expects that there will be no significant adverse comment on this rule. Elsewhere in this issue of the
This rule is effective January 10, 2013. Submit either electronic or written comments by November 13, 2012. If HHS/NIH receives no significant adverse comments within the specified comment period, the agency will publish a document confirming the effective date of the final rule in the
You may submit comments, identified by [Docket No(s).], by any of the following methods:
Submit electronic comments in the following way:
•
Submit written submissions in the following ways:
•
•
To ensure more timely processing of comments, HHS/NIH is no longer accepting comments submitted to the agency by email. HHS/NIH encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal, as described previously, in the
Jerry Moore, NIH Regulations Officer, Office of Management Assessment, National Institutes of Health, 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, MD 20852-7669, telephone 301-496-4607, fax 301-402-0169, email
NIH is implementing a new system of records called, “NIH Records Related to Research Misconduct Proceedings” (09-25-0223). This system of records is part of NIH's implementation of its responsibilities under the Public Health Service (PHS) Policies on Research Misconduct, 42 CFR part 93. The system notice applies to alleged or actual research misconduct involving research: (1) Carried out in NIH facilities by any person; (2) funded by the NIH Intramural Research Program (IRP) in any location; or (3) undertaken by an NIH employee or trainee as part of his or her official NIH duties or NIH training activities, regardless of location. A person who, at the time of the alleged or actual research misconduct, was employed by, was an agent of, or was affiliated by contract, agreement, or other arrangement with NIH, is covered by the system if, for example, he or she is involved in: (1) NIH- or PHS-supported biomedical or behavioral research; (2) NIH- or PHS-supported biomedical or behavioral research training programs; (3) NIH- or PHS-supported activities that are related to biomedical or behavioral research or research training, such as the operation of tissue and data banks and the dissemination of research information; (4) plagiarism of research records produced in the course of NIH- or PHS-supported research, research training or activities related to that research or research training; or (5) an application or proposal for NIH or PHS support for biomedical or behavioral research, research training or activities related to that research or research training, such as the operation of tissue and data banks and the dissemination of research information (regardless of whether it is approved or funded).
The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to
NIH's system of records is modeled after the system of records maintained by ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 74 FR 44847, Aug. 31, 2009).
NIH's records related to research misconduct proceedings are located in the Office of Intramural Research in NIH's Office of the Director. NIH is updating its organization and operation of these records, to be exempt from Privacy Act requirements, as provided in this direct final rule and in a new “System of Records Notice” which NIH is publishing in the
Under the Privacy Act (5 U.S.C. 552a), individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Act permits certain types of systems to be exempt from some of the Privacy Act requirements, including the access requirement. For example, section 552a(k)(2) allows agency heads to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes. This exemption's effect on the access requirement is qualified in that if the maintenance of the material results in the denial of any right, privilege, or benefit that the individual would be otherwise entitled to by Federal law, the individual must be granted access to the material unless the access would reveal the identity of a source who furnished information to the Government under an express promise of confidentiality. In addition, section 552a(k)(5) permits an agency to exempt investigatory material from certain Privacy Act provisions where such material is compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence.
As stated above, NIH may take administrative action in response to a research misconduct proceeding and, where a civil or criminal fraud may have taken place, NIH may refer the matter to the appropriate investigative body. As such, NIH's records related to research misconduct proceedings are compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of record. Moreover, where records related to research misconduct proceedings are compiled solely for the purpose of making determinations as to the suitability for appointment as special government employees or eligibility for Federal contracts from PHS agencies, the subsection (k)(5) exemption is applicable.
Exempting the system from Privacy Act provisions pertaining to providing an accounting of disclosures, access and amendment, notification, and procedures and rules is necessary to maintain the integrity of the research misconduct proceedings and to ensure that the NIH's efforts to obtain accurate and objective information will not be hindered.
Accordingly, HHS/NIH is exempting this system under subsections (k)(2) and (k)(5) of the Privacy Act from the accounting, access, and amendment, notification and procedures and rules provisions of the Privacy Act (paragraphs (c)(3), (d)(1)-(4), (e)(4)(G) and (H), and (f)) for the reasons stated below. However, consideration will be given to requests for notification, access, and amendment that are addressed to the System Manager. The specific rationale for exempting the system from each of these provisions is as follows:
• Subsection (c)(3). An exemption from the requirement to provide an accounting of disclosures is needed during the pendency of a research misconduct proceeding. Release of an accounting of disclosures to an individual who is the subject of a pending research misconduct assessment, inquiry or investigation could prematurely reveal the nature and scope of the assessment, inquiry or investigation and could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (d)(1). An exemption from the access requirement is needed both during and after a research misconduct proceeding, to avoid revealing the identity of any source who was expressly promised confidentiality. Only material that would reveal a confidential source will be exempt from access. Protecting the identity of a source is necessary when the source is unwilling to come forward and report possible research misconduct because of fear of retaliation (e.g., from an employee or co-worker).
• Subsections (d)(2) through (d)(4). An exemption from the amendment provisions is necessary while one or more related research misconduct proceedings are pending. Allowing amendment of investigative records in a pending proceeding could interfere with that proceeding; even after that proceeding is concluded, an amendment could interfere with other pending or prospective research misconduct proceedings, or could significantly delay inquiries or investigations in an attempt to resolve questions of accuracy, relevance, timeliness, and completeness.
• Subsections (e)(4)(G) and (H). An exemption from the notification provisions is necessary during the pendency of a research misconduct proceeding, because notifying an individual who is the subject of an assessment, inquiry, or investigation of the fact of such proceedings could prematurely reveal the nature and scope of the proceedings in a manner that could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (f). An exemption from this requirement to establish procedures for notification, access to records, amendment of records, or appeals of denials of access to records, is necessary because the procedures would serve no purpose in light of the other exemptions, to the extent that those exemptions apply.
As stated above, NIH's system of records is modeled after the system of records maintained by HHS' Office of Research Integrity (ORI). ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, accounting, access, and amendment provisions of the Privacy Act, to ensure
HHS/NIH has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule imposes no duties or obligations on small entities, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. NIH does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
Privacy.
For the reasons set out in the preamble, the Department's Privacy Act Regulations, Part 5b of 45 CFR Subtitle A, are amended as follows:
5 U.S.C. 301, 5 U.S.C. 552a
(b) * * *
(2) * * *
(vii) * * *
(D) NIH Records Related to Research Misconduct Proceedings, HHS/NIH, 09-25-0223.
Federal Maritime Commission.
Final rule.
The Federal Maritime Commission amends its rules regarding the amount of bond coverage on the optional China Bond Rider for Non-Vessel-Operating Common Carriers (NVOCCs). The final rule is intended to provide NVOCCs with the ability to post a bond with the Commission that satisfies the equivalent of 800,000 Chinese Renminbi, for which the equivalent U.S. Dollar amount has fluctuated since the regulation was first adopted by the Commission.
The final rule is effective November 23, 2012.
Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001, Phone: (202) 523-5725; Rebecca A. Fenneman, General Counsel, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001, Phone: (202) 523-5740,
Under a Memorandum of Consultations pursuant to the 2003 bilateral Maritime Agreement between the United States and the People's Republic of China (China or the PRC), the PRC does not require U.S. Non-Vessel-Operating Common Carriers (NVOCCs) to make a cash deposit in a Chinese bank as would otherwise be required by Chinese regulations, so long as the NVOCC:
(1) Is a legal person registered by U.S. authorities;
(2) obtains an FMC license as an NVOCC; and
(3) provides evidence of financial responsibility in the total amount of Chinese Renminbi (RMB) 800,000 or U.S. $96,000.
An FMC-licensed U.S. NVOCC that voluntarily provides an additional surety bond in the amount of $21,000 (denominated in U.S. Dollars or Chinese Renminbi), which by its conditions is available for potential claims of the Ministry of Transport (MOT) of the PRC (as well as other Chinese agencies) for violations of the Chinese Regulations on International Maritime Transportation, may register in the PRC without paying the cash deposit otherwise required by Chinese law and regulation.
In 2004, the Commission issued a Notice of Proposed Rulemaking (NPR) to explore mechanisms for NVOCCs to file proof of such additional financial responsibility. See 69 FR 4271 (January 29, 2004). On April 1, 2004, the Commission issued a final rule that amended its regulations governing proof of financial responsibility for ocean transportation intermediaries to allow an optional bond rider to be filed with a licensed NVOCC's proof of financial responsibility to provide additional proof of financial responsibility for such carriers serving the U.S. oceanborne trade with the PRC. Docket No. 04-02,
On April 15, 2011, the Commission received a communication from the Maritime Administration of the U.S. Department of Transportation, transmitting a request from the MOT to revise the Commission's regulations at Appendix E to Subpart C of Part 515—
The Commission issued a Notice of Inquiry (NOI) soliciting public commentary on the proposal on June 10, 2011. The NOI sought general comments on the optional China Bond Rider, and also presented three questions for particular study:
1. Describe how, and to what extent, the optional rider to the required NVOCC bond has impacted your company's business operations? Does this make for more certainty in your business operation? Has the optional rider to the required NVOCC bond impacted your overall business costs? If so, how?
2. What do you see as the advantages and disadvantages of an adjustment to the current optional rider to the required NVOCC bond?
3. Please explain whether, and if so, how significantly your business costs/operations would be affected by a provision that allows for adjustments to the U.S. Dollar amount required in a NVOCC optional China bond rider when the USD (U.S. Dollar) and the RMB (Renminbi) exchange rate fluctuates 20% higher or lower.
A more reasonable approach might be for China to determine the exchange value to be assigned in a given 12 month period, and allow NVOCC's to offset the bond coverage based on total bond value, adding any additional coverage as might be required to make up any shortfall not already covered by multiple branch offices. This would limit the bond transactions significantly, while providing simplicity and stability for all involved.
The NCBFAA also accepts that the respective currencies have fluctuated, and some justification exists for the Chinese Government's request to increase the amount of the optional Bond Rider. Additionally, although the NCBFAA does not object to the Commission's consideration of an optional Bond Rider adjustment any time the currency values fluctuate more than 20%, it does not believe that an automatic adjustment “is necessary or appropriate.” The NCBFAA also echoes the beliefs of Mohawk and Econocaribe that many NVOCCs already have an aggregate coverage of greater than $125,000 (which would surpass the adjusted optional China Bond Rider amount of $122,000). If the Chinese Government assented, NCBFAA posits that allowing the NVOCCs to count all bond coverage might actually decrease the cost for many U.S.-licensed NVOCCs who do business in China. The NCBFAA looks to the Annex to the 2003 Bilateral Maritime Agreement for support, noting that it did not require a Bond Rider of a certain amount, but instead required evidence of financial responsibility of a certain total amount ($96,000). The Agreement left open how that total may be satisfied. The NCBFAA thus suggests that the Commission seek the Chinese Government's assent to accepting a total bond amount in addition to a Bond Rider in satisfying the $122,000 amount. Each NVOCC could thus determine whether it was more cost effective to procure a Bond Rider, or simply rely on its aggregate coverage amount that exceeded $122,000. This would reduce operating costs for some NVOCCs, but would still maintain adequate coverage.
The Commission also issued a Notice of Proposed Rulemaking (NPR) soliciting public commentary on the proposal on January 5, 2012. The NPR sought general comments on the optional China Bond Rider and on the proposed rulemaking. The proposed rule amended Appendix F to Subpart C of Part 515 (group bonds) to increase the amount specified from $21,000 to $50,000. In response to the comments the Commission received from the Notice of Inquiry from June 10, 2012, the proposed rule amended Appendix E to Subpart C of Part 515 (individual NVOCC bonds) to remove pre-specified rider amounts to account for variances in NVOCCs' combined total surety levels maintained to meet the Commission's other financial responsibility requirements, including $10,000 in bond coverage that NVOCCs maintain for each of their branch offices pursuant to 46 CFR 515.21(a)(4). This recognition means that NVOCCs with branch offices may have rider amounts that vary to satisfy the level of coverage requested by the PRC, so long as their total coverage equals $125,000. The Commission sought comments particularly on the feasibility of these proposed revisions.
Zehner did express concern regarding the timing of implementation as riders can generally only be altered or added in accord with “the underlying bond's anniversary cycle.” Roanoke proposes a 12-month phase-in period in order to limit the impact of immediate compliance on the industry and FMC resources. Alternatively, Roanoke would request at least 90 days notice prior to the regulation taking effect as to allow time for proper processing of bonding alterations.
Roanoke also sought “additional clarity or guidance” regarding how to represent bond amounts in paragraphs 1.a. and 1.c. of FMC Form 48A when bonded U.S. office locations are involved.
Likewise, the comment “strongly endorses” FMC proposals to allow bond amounts to be aggregated. Fedex Trade Networks explains: “Allowing NVOCCs to meet the increased bond requirement by maintaining a bond of at least $125,000.00 would both fully satisfy the terms of the U.S.-China agreement and be more cost effective and efficient.”
In the 2003 Memorandum of Consultations between the U.S. and China, it was agreed that U.S. NVOCCs operating in the China trade would provide “evidence of financial responsibility in the total amount of Chinese Renminbi (RMB) 800,000 or U.S. $96,000.” The Memorandum of Consultations specifies amounts in both Chinese and United States currency, and did not provide for adjustment in exchange rates. Nevertheless, in recognition of the recent slight improvement in the value of the RMB against the U.S. Dollar (and in a spirit of comity and in conformity with Executive Order 13609,
The rule amends Appendix F to Subpart C of Part 515 (group bonds) to increase the amount specified from $21,000 to $50,000. In response to the comments the Commission received, the rule amends Appendix E to Subpart C of Part 515 (individual NVOCC bonds) to remove pre-specified rider amounts to account for variances in NVOCCs' combined total surety levels maintained to meet the Commission's other financial responsibility requirements, including $10,000 in bond coverage that NVOCCs maintain for each of their branch offices pursuant to 46 CFR 515.21(a)(4). This recognition means that NVOCCs with branch offices may have rider amounts that vary to satisfy the level of coverage requested by the PRC, so long as their total coverage equals $125,000.
The Commission intends to review the value of the total coverage provided by the optional China Bond Rider periodically.
Pursuant to 5 U.S.C. 605(b), and in response to comments regarding small businesses affected by this optional China Bond Rider, a Regulatory Flexibility Threshold Analysis has been performed; it has been determined that the final rule will not have a significant economic impact on a substantial number of small entities.
The small entities affected are ocean transportation intermediaries (OTIs). In determining whether a significant economic impact would occur under the new rule, the first estimate costs of the bond rider coverage were assessed. The economic impact of the optional China Bond Rider has been estimated to be less than $20 for every $1,000 of bond rider coverage, with most estimates being under $15 for every $1,000 of bond rider coverage. To that end, $21,000 of bond rider coverage would cost approximately $420.00 under this analysis. Given this information, it is determined that these first estimate costs are not significant to small entities. Uncertainty remains on the
To determine whether a substantial number of small entities would be affected, the OTI licensing statistics were reviewed. There are approximately 3,500 licensed U.S. OTIs that could file for the optional China Bond Rider; currently, only 350 OTIs have filed for the available optional China Bond Rider. This amounts to less than 10% of the entire market that may reasonably participate in the optional bond rider program. Based on this data, it is determined that a substantial number of small entities will not be affected by this rule.
It is important to note that the optional China Bond Rider is not an FMC-required bond; rather it is an alternative instrument crafted by the United States and China to relieve U.S. NVOCCs from the People's Republic of China's cash deposit requirement. The rule will not have a significant economic impact on a substantial number of small entities as outlined by the Regulatory Flexibility Threshold Act.
The Commission certifies this rulemaking because the proposed changes establish an optional provision for U.S. licensed NVOCCs, which may be used at their discretion. While some of these businesses qualify as small entities under the guidelines of the Small Business Administration, the rule provides a more cost-effective alternative than would otherwise be available to assist U.S. licensed NVOCCs with their business endeavors in the PRC. As such, the rule helps to promote U.S. business interests in the PRC and facilitate U.S. foreign commerce.
The Chairman of the Commission certifies, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 601
This rule is not a “major rule” under 5 U.S.C. 804(2).
The collection of information requirements contained in this rule have been submitted to the Office of Management and Budget for review under section 3504(h) of the Paperwork Reduction Act of 1980, as amended. Public reporting burden for this collection of information was estimated to be 1.25 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Freight, Maritime carriers, Non-vessel-operating common carriers.
For the reasons stated in the supplementary information, the Federal Maritime Commission amends 46 CFR Part 515 as follows.
5 U.S.C. 553; 31 U.S.C. 9701; 46 U.S.C. 305, 40102, 40104, 40501-40503, 40901-40904, 41101-41109, 41301-41302, 41305-41307; Pub. L. 105-383, 112 Stat. 3411; 21 U.S.C. 862.
The undersigned [______], as Principal and [______], as Surety do hereby agree that the existing Bond No. [____] to the United States of America and filed with the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984 is modified as follows:
1. The following condition is added to this Bond:
a. An additional condition of this Bond is that $_____ (payable in U.S. Dollars or Renminbi Yuan at the option of the Surety) shall be available to pay any fines and penalties for activities in the U.S.-China trades imposed by the Ministry of Communications of the People's Republic of China (“MOC”) or its authorized competent communications department of the people's government of the province, autonomous region or municipality directly under the Central Government or the State Administration of Industry and Commerce pursuant to the Regulations of the People's Republic of China on International Maritime Transportation and the Implementing Rules of the Regulations of the PRC on International Maritime Transportation promulgated by MOC Decree No. 1, January 20, 2003.
b. The liability of the Surety shall not be discharged by any payment or succession of payments pursuant to section 1 of this Rider, unless and until the payment or payments shall aggregate the amount set forth in section 1a of this Rider. In no event shall the Surety's obligation under this Rider exceed the amount set forth in section 1a regardless of the number of claims.
c. The total amount of coverage available under this Bond and all of its riders, available pursuant to the terms of section 1(a.) of this rider, equals $____. The total amount of aggregate coverage equals or exceeds $125,000.
d. This Rider is effective the [____] day of [______], 20 [______], and shall continue in effect until discharged, terminated as herein provided, or upon termination of the Bond in accordance with the sixth paragraph of the Bond. The Principal or the Surety may at any time terminate this Rider by written notice to the Federal Maritime Commission at its offices in Washington, DC, accompanied by proof of transmission of notice to MOC. Such termination shall become effective thirty (30) days after receipt of said notice and proof of transmission by the Federal Maritime Commission. The Surety shall not be liable for fines or penalties imposed on the Principal after the expiration of the 30-day period but such termination shall not affect the liability of the Principal and Surety for any fine or penalty imposed prior to the date when said termination becomes effective.
2. This Bond remains in full force and effect according to its terms except as modified above.
In witness whereof we have hereunto set our hands and seals on this [____] day of [______], 20 [____],
1. * * *
a. An additional condition of this Bond is that $ [____](payable in U.S. Dollars or Renminbi Yuan at the option of the Surety) shall be available to any NVOCC enumerated in an Appendix to this Rider to pay any fines and penalties for activities in the U.S.-China trades imposed by the Ministry of Communications of the People's Republic of China (“MOC”) or its authorized competent communications department of the people's government of the province, autonomous region or municipality directly under the Central Government or the State Administration of Industry and Commerce pursuant to the Regulations of the People's Republic of China on International Maritime Transportation and the Implementing Rules of the Regulations of the PRC on International Maritime Transportation promulgated by MOC Decree No. 1, January 20, 2003. Such amount is separate and distinct from the bond amount set forth in the first paragraph of this Bond. Payment under this Rider shall not reduce the bond amount in the first paragraph of this Bond or affect its availability. The Surety shall indicate that $50,000 is available to pay such fines and penalties for each NVOCC listed on appendix A to this Rider wishing to exercise this option.
By the Commission.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; emergency action.
NMFS issues this final temporary rule to establish management measures to allow for the limited harvest and possession of red snapper in or from the South Atlantic exclusive economic zone (EEZ) in 2012, as requested by the South Atlantic Fishery Management Council (Council). This rule also announces the opening and closing dates of the 2012 commercial and recreational fishing seasons for red snapper. The intended effect of this temporary rule is to preserve a significant economic opportunity in the South Atlantic snapper-grouper fishery that otherwise might be foregone. Furthermore, limited commercial and recreational harvest of red snapper in 2012 will provide an opportunity to collect fishery-dependent data that could be useful for the 2014 red snapper stock assessment.
This temporary rule is effective August 28, 2012 through December 31, 2012. The recreational red snapper season opens at 12:01 a.m., local time, on September 14, 2012, and closes at 12:01 a.m., local time, on September 17, 2012; then reopens at 12:01 a.m., local time, on September 21, 2012, and closes at 12:01 a.m., local time, on September 24, 2012. The commercial red snapper season opens at 12:01 a.m., local time, on September 17, 2012, and closes at 12:01 a.m., local time, on September 24, 2012.
Electronic copies of the documents in support of this temporary rule, which include an environmental assessment, may be obtained from the Southeast Regional Office Web site at
Rick DeVictor, Southeast Regional Office, NMFS, telephone: 727-824-5305, email:
NMFS and the Council manage South Atlantic snapper-grouper including red snapper under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-Stevens Act provides the legal authority for the promulgation of emergency regulations under section 305(c) (16 U.S.C. 1855(c)).
Red snapper are overfished and undergoing overfishing. The harvest and possession of red snapper has been prohibited since January 4, 2010, initially through temporary rules (74 FR 63673, December 4, 2009 and 75 FR 27658, May 18, 2010), and then through the final rule to implement Amendment 17A to the FMP (75 FR 76874, December 9, 2010). Amendment 17A continued the prohibition on a permanent basis by implementing an annual catch limit (ACL) for red snapper of zero (landings only). Amendment 17A also implemented a rebuilding plan for red snapper, which specifies that red snapper biomass must increase to the target rebuilt level in 35 years, starting from 2010. The final rule implementing Amendment 17A also included a large area closure for most snapper-grouper species, however, this area closure did not become effective because it was determined not to be necessary to end the overfishing of red snapper (76 FR 23728, April 28, 2011). At its June 2012 meeting, the Council received new information regarding discard estimates for red snapper. Using this data, the Council and NMFS determined that a limited season for red snapper would be possible in 2012. Therefore, the Council voted, and NMFS is implementing, emergency rulemaking to allow for the limited harvest and possession of red snapper in or from the South Atlantic EEZ in 2012.
The most recent Southeast Data, Assessment, and Review (SEDAR) benchmark stock assessment for red snapper, SEDAR 24, was completed in October 2010. Much like the stock assessment completed in 2008, this assessment showed red snapper to be overfished and undergoing overfishing, but also showed that red snapper were undergoing overfishing at a lower rate than found in the 2008 stock assessment. The next benchmark stock
The Southeast Fisheries Science Center (SEFSC) has new discard data collected since the last benchmark assessment. The new data includes 2010 and 2011 discard estimates from commercial logbooks, the Marine Recreational Fisheries Statistical Survey (MRFSS) and the Southeast Headboat Survey. These data were used to evaluate red snapper discards in relation to the acceptable biological catch (ABC) adopted by the Council (using SEDAR 24 rebuilding projections) to determine if a limited harvest of red snapper can be allowed for snapper-grouper fishermen in 2012. Using the average of 2010 and 2011 estimated discard mortalities and the 2012 ABC, NMFS has determined that the estimated discard mortality level for 2012 is below the 2012 ABC. Therefore, a limited harvest and possession of red snapper is possible in 2012 while staying within the rebuilding plan. Based on the new discard estimates reviewed at its June 2012 meeting, the Council requested that NMFS promulgate emergency regulations to allow for the limited harvest and possession of red snapper in 2012. The Council voted to implement commercial and recreational management measures to ensure that only a limited amount of red snapper would be harvested and possessed and that this allowance would not prevent the stock from rebuilding to target levels within the specified timeframe.
NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 44421, August 21, 1997) list three criteria for determining whether an emergency exists and this temporary rule is promulgated under these criteria. Specifically, NMFS' policy guidelines require that an emergency:
(1) Result from recent, unforeseen events or recently discovered circumstances; and
(2) Present serious conservation or management problems in the fishery; and
(3) Can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process.
The Council requested dead discard estimates from the SEFSC for 2010 and 2011, in anticipation of holding discussions during the June 2012 Council meeting to consider a limited reopening of red snapper. In a letter dated April 7, 2012, the Council asked for red snapper discard mortality estimates to compare to the previously projected mortality levels from the latest stock assessment. The discard estimates provided by the SEFSC from commercial logbooks, MRFSS, and the Southeast Headboat Survey constitute recently discovered circumstances. The ABC adopted by the Council from SEDAR 24 for 2012 is 86,000 fish. Red snapper harvest can only be allowed if projected mortalities from the harvest and release of fish are less than the ABC for that year. Using the average of 2010 and 2011 estimated mortalities and the 2012 ABC, NMFS estimates there will be 72,933 red snapper killed in 2012. Since the ABC for 2012 is 86,000 fish, the ABC is higher than the estimated discard mortalities for 2012. As a result, the Council and NMFS determined 13,067 red snapper may be harvested in or from the South Atlantic in 2012.
Input from the public and from a number of fishing communities indicates the harvest prohibition for red snapper has caused socio-economic harm to individuals and associated communities. Unnecessarily prolonging the harvest prohibition presents serious conservation and management problems in the snapper-grouper fishery. Therefore, implementing a limited commercial and recreational season will likely increase socioeconomic benefits for South Atlantic snapper-grouper fishermen. Increased fishing opportunities should provide direct benefits to fishermen in the form of additional income and recreational opportunities, in addition to indirect benefits to businesses that provide supplies for fishing trips. NMFS expects the 2012 fishing season revenues to commercial vessels will increase by about $86,000 (in total; 694 snapper-grouper permitted vessels may potentially participate in this harvest) and that benefits to the recreational anglers will increase by about $232,000 to $724,000 (in total; assuming that each of the 9,399 recreational fish is harvested by an individual angler). It is also likely that revenues and profits to for-hire vessels and support businesses will increase, but their magnitude cannot be estimated with the current information. Implementing the limited harvest of red snapper should also improve compliance and conservation as fishermen view management as being responsive to their needs and support this and other regulations. Additionally, a new stock assessment for red snapper has been delayed in order to gather more data. A limited commercial and recreational season for red snapper in 2012 will provide an opportunity to collect fishery-dependent data, including age composition and catch-per-unit-effort data that could be useful for and enhance the 2014 red snapper stock assessment.
The immediate benefits of implementing a limited commercial and recreational fishing season for red snapper in 2012 provide good cause to waive advance notice and public comment. A limited red snapper season should be implemented as soon as possible in 2012 so as not to open the season too late in the fishing year when poor weather can lead to unsafe fishing conditions. Comments on this action at the June 2012 Council meeting indicated that many fishermen favored a fall season. The U.S. Coast Guard advised that a red snapper opening in late 2012 could lead to unnecessary accidents from unsafe fishing conditions. The Council took all of this information into consideration when they requested a temporary rule for emergency action.
This temporary rule implements several management measures to authorize the limited harvest and possession of red snapper in or from the South Atlantic EEZ in the 2012 fishing year. The commercial annual catch limit (ACL) is set at 20,181 lb (9,443 kg), gutted weight, which is equal to the commercial quota, and the recreational ACL is set at 9,399 fish. These ACLs are based on the total ACL selected by the Council (13,097 fish), and the current allocation ratio for red snapper (28.07 percent commercial and 71.93 percent recreational). Accountability measures (AMs) are implemented to prevent these ACLs from being exceeded. NMFS and the Council are establishing several management measures that act as AMs, in order to constrain red snapper harvest to these ACLs. Limited commercial and recreational red snapper seasons are established for 2012. The recreational season will open for two consecutive weekends made up of Fridays, Saturdays, and Sundays and the commercial season will be open for 7 days, starting on the Monday following the first recreational weekend opening. The recreational season opens at 12:01 a.m., local time, on September 14, 2012, and closes at 12:01 a.m., local time, on September 17, 2012; then reopens at 12:01 a.m., local time, on September 21, 2012, and closes at 12:01 a.m., local time, on September 24, 2012.
This action is issued pursuant to section 305(c) of the Magnuson-Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator for Fisheries, NOAA (AA), has determined that this temporary rule is necessary to preserve a significant economic opportunity for South Atlantic snapper-grouper fishermen that otherwise would be foregone and is consistent with the Magnuson-Stevens Act and other applicable laws.
This temporary rule has been determined to be not significant for purposes of Executive Order 12866.
The AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because they are contrary to the public interest. This temporary rule preserves a significant economic opportunity for South Atlantic snapper-grouper fishermen that would otherwise be forgone. Limited harvest and possession of red snapper in 2012 will likely result in revenue increases to commercial vessels and benefit increases to recreational anglers, in addition to providing opportunity to for-hire vessels in booking more trips that could increase their revenues and profits. At the June 2012 Council meeting, South Atlantic snapper-grouper fishermen discussed the merits of opening red snapper in the South Atlantic for a limited time in 2012. Fishermen will be able to keep the red snapper that they are currently required to discard. Commercial fishermen should be able to increase their incomes in 2012 by about $86,000 (in total) by being able to sell a highly marketable fish for a limited time. Additionally, limited red snapper seasons will provide an opportunity to collect fishery-dependent data that will likely be useful for the 2014 red snapper stock assessment. Currently, the lack of available red snapper data hinders the ability to assess the status of the stock. Delaying the implementation of this rulemaking to provide prior notice and the opportunity for public comment would reduce the likelihood of opening the red snapper component of the snapper-grouper fishery in the early fall months when weather conditions are more favorable and fishing conditions are safer.
For these same reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of the actions under 5 U.S.C. 553(d)(3).
Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:
16 U.S.C. 1801
(l)
(d) * * *
(1) * * *
(xi) Snappers, combined—10, of which no more than 1 may be red snapper. The 1-fish red snapper bag limit applies during the recreational red snapper season, specified in § 622.35(l). However, excluded from this 10-fish bag limit are cubera snapper, measuring 30 inches (76.2 cm), TL, or larger, in the South Atlantic off Florida, and vermilion snapper. (See § 622.32(c)(2) for limitations on cubera snapper measuring 30 inches (76.2 cm), TL, or larger, in or from the South Atlantic EEZ off Florida.)
(xii) South Atlantic snapper-grouper, combined—20. However, excluded from this 20-fish bag limit are tomtate, blue runner, and those specified in paragraphs (d)(1)(i) through (vii) and paragraphs (d)(1)(x) and (xi) of this section.
(c) * * *
(9)
(b) * * *
(25)
(ii)
Department of Energy, Office of Energy Efficiency and Renewable Energy.
Proposed rule; extension of public comment period.
This document announces that the period for submitting comments on the dehumidifier framework document is extended to October 17, 2012.
DOE will accept comments, data, and information on the dehumidifier framework received no later than October 17, 2012.
Any comments submitted must identify the dehumidifier framework document and provide docket number EERE-2012-BT-STD-0027. Comments may be submitted using any of the following methods:
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Requests for additional information may be sent to Mr. Stephen L. Witkowski, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: 202-586-7463. Email:
In the office of the General Counsel, contact Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Ave. SW., Room 6A-179, Washington, DC 20585. Telephone: 202-586-7796; Email:
On August 17, 2012, DOE published a notice of availability of a framework document to consider energy conservation standards for dehumidifiers. (77 FR 49739) The notice provided for the submission of comments by September 17, 2012. Commenters stated that the public meeting was scheduled for September 24, 2012, and that the comment period should extend past the public meeting date. DOE has determined that an extension of the public comment period is appropriate for this reason and is hereby extending the comment period. DOE will consider any comments received by October 17, 2012.
Under 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) A description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.
Defense Nuclear Facilities Safety Board.
Proposed rule; extension of comment period.
The Defense Nuclear Facilities Safety Board is extending the time for comments on its proposed rule, Procedures for Safety Investigations, which published July 27, 2012 in the
Comments are due by 5 p.m. September 26, 2012.
Submit comments to John G. Batherson, Associate General Counsel, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004. Send comments by facsimile to (202) 208-6518. Send comments by email to John G. Batherson at
John G. Batherson, Associate General Counsel, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004-2901, (202) 694-7018
The Defense Nuclear Facilities Safety Board is extending the comment period on the proposed rule, Procedures for Safety Investigations, because it has become aware of information which will best serve the public interest by extending the deadline for submission of comments for consideration by the Board. For this reason, the Board is extending the comment period to September 26, 2012.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Airbus Model A318-112 airplane. This airplane as modified by Fokker Services B.V. will have a novel or unusual design feature associated with a cooktop installation. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before October 12, 2012.
Send comments identified by docket number FAA-2012-0699 using any of the following methods:
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Dan Jacquet, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-2676; facsimile 425-227-1100; email
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.
On January 12, 2010, Fokker Services B.V. applied for a supplemental type certificate for an interior conversion on an Airbus Model A318-112 airplane, serial number 3238. The Airbus Model A318-112 airplane is a large, transport-category airplane powered by two CFM56-5B9/P engines, with a basic maximum takeoff weight of 130,071 pounds.
Fokker Services B.V. is requesting certification to convert this Airbus Model A318-112 to a corporate jet, operating for both public and private use (not for hire, not for common carriage). For private use the aircraft will be certified for a maximum of 8 crew and 23 passengers, and the public use occupancy will be a maximum of 8 crew and 19 passengers. The aircraft will be subdivided into an entrance way, executive lounge, two private lounges, and a private bathroom. The entry will include the installation of two wet galleys. One of the galleys will include the installation of two combined cooktop pan units. The addition of a cooktop to this interior conversion can lead to hazards to both occupants and the aircraft. Special consideration is needed to address the safety standards associated with this installation.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101 Fokker Services B.V. must show that the Airbus Model A318-112 airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in A28NM are 14 CFR part 25, as amended by Amendments 25-1 through 25-56, with reversions to earlier amendments, voluntary compliance to later amendments, special conditions, equivalent safety findings, and exemptions listed in the type certificate data sheet.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A318-112 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the special conditions would
In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A318-112 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.
The Airbus Model A318-112 airplane, serial number 3238, will incorporate the following novel or unusual design feature: Cooktops in the passenger cabin. Cooktops introduce high heat, smoke, and the possibility of fire into the passenger cabin environment. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards to protect the airplane and its occupants from these potential hazards. The applicant's proposed system is considered to be a novel or unusual design feature.
Currently, ovens are the prevailing means of heating food on airplanes. Ovens are characterized by an enclosure that contains both the heat source and the food being heated. The hazards presented by ovens are thus inherently limited and are well understood through years of service experience. Cooktops, on the other hand, are characterized by exposed heat sources and the presence of relatively unrestrained hot cookware and heated food. These may represent unprecedented hazards to both occupants and the airplane.
Cooktops could have serious passenger and aircraft safety implications if appropriate requirements are not established for their installation and use. The requirements identified in these proposed special conditions are in addition to those considerations identified in Advisory Circular (AC) 20-168, Certification Guidance for Installation of Non-Essential, Non-Required Aircraft Cabin Systems and Equipment (CS&E), and those in AC 25-17A, Transport Airplane Cabin Interiors Crashworthiness Handbook. The intent of these proposed special conditions is to provide a level of safety that is consistent with that on similar aircraft without cooktops.
In similar cooktop installations, the FAA has required a deployable cover and a means to automatically shut off the power when the cover was in use. In lieu of these requirements, the cooktop installation in this Airbus A318-112 will have a lid and a timer that is not covered by the lid. The timer switches the heating elements on and off, has a maximum time of 20 minutes, and is still accessible when the lid is closed. The cabin crew will be instructed on its use. In addition to the lid and timer, the applicant will supply a fire blanket that is 1,100 by 1,100 mm (catalogue no. SAP-967-T). The fire blanket meets the requirements of British Standard BS 6575:1965. These specifications contain the requirements for flexibility, heat, electrical resistance, and fire extinguishing including cooking oil fires for light duty and heavy duty (industrial) applications.
For this cooktop installation, the FAA requires evidence that with the cooktop lid closed, the temperature set on “high,” and the timer at maximum, the cooktop will maintain safe operation and will not create a hazardous condition even with cooking oil in the cooktop.
As discussed above, these special conditions are applicable to the Airbus Model A318-112. Should Fokker Services B.V. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A28NM to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the Airbus Model A318-112 airplane, serial number 3238, modified by Fokker Services B.V.
Cooktop installations with electrically powered burners must comply with the following criteria:
1. Means, such as conspicuous burner-on indicators, physical barriers, or handholds, must be installed to minimize the potential for inadvertent personnel contact with hot surfaces of both the cooktop and cookware. Conditions of turbulence must be considered.
2. Sufficient design means must be included to restrain cookware while in place on the cooktop, as well as representative contents, e.g., soup, sauces, etc., from the effects of flight loads and turbulence. Restraints must be provided to preclude hazardous movement of cookware and contents. These restraints must accommodate any cookware that is identified for use with the cooktop. Restraints must be designed to be easily utilized and effective in service. The cookware restraint system should also be designed so that it will not be easily disabled, thus rendering it unusable. Placarding must be installed which prohibits the use of cookware that cannot be accommodated by the restraint system.
3. Placarding must be installed that prohibits the use of cooktops (i.e., power on any burner) during taxi, takeoff, and landing.
4. Means must be provided to address the possibility of a fire occurring on or in the immediate vicinity of the cooktop. Two acceptable means of complying with this requirement are as follows:
a. Placarding must be installed that prohibits any burner from being powered when the cooktop is unattended, which would prohibit a single person from cooking on the cooktop and intermittently serving food to passengers while any burner is powered; a fire detector must be installed in the vicinity of the cooktop that provides an audible warning in the passenger cabin; and a fire extinguisher of appropriate size and extinguishing agent must be installed in the immediate vicinity of the cooktop. Access to the extinguisher must not be blocked by a fire on or around the cooktop. One of the fire extinguishers required by § 25.851 may be used to satisfy this requirement. If this is not possible, then the extinguisher in the galley area would be additional; or,
b. An automatic, thermally activated, fire-suppression system must be installed to extinguish a fire at the cooktop and immediately adjacent surfaces. The agent used in the system must be an approved, total-flooding agent suitable for use in an occupied area. The fire-suppression system must have a manual override. The automatic activation of the fire-suppression system must also automatically shut off power to the cooktop.
5. The surfaces of the galley surrounding the cooktop, which would be exposed to a fire on the cooktop surface or in cookware on the cooktop, must be constructed of materials that comply with the flammability requirements of 14 CFR part 25, appendix F, part III. This requirement is in addition to the flammability requirements typically required of the materials in these galley surfaces. During the selection of these materials, consideration must also be given to ensure that the flammability characteristics of the materials will not be adversely affected by the use of cleaning agents and utensils used to remove cooking stains.
6. The cooktop ventilation system ducting must be protected by a flame arrestor. In addition, procedures and time intervals must be established and included in the instructions for continued airworthiness to inspect and clean or replace the ventilation system to prevent a fire hazard from the accumulation of flammable oils. [Note: The applicant may find additional useful information in the Society of Automotive Engineers, Aerospace Recommended Practice 85, Rev. E, entitled, “Air Conditioning Systems for Subsonic Airplanes,” dated August 1, 1991.]
7. Means must be provided to contain spilled foods or fluids in a manner that prevents the creation of a slipping hazard to occupants, and that will not lead to the loss of structural strength due to corrosion.
8. Cooktop installations must provide adequate space for the user to immediately escape a hazardous cooktop condition.
9. A means to shut off power to the cooktop must be provided at the galley containing the cooktop and in the cockpit. If additional switches are introduced in the cockpit, revisions to smoke or fire emergency procedures of the airplane flight manual (AFM) will be required.
10. Cooktop installations must incorporate a timer that will switch the heating elements off after a maximum time of 20 minutes.
11. Instructions for the cabin crew to ensure safe operation of the cooktop lid and timer must be provided.
12. Evidence must be provided that with the cooktop lid closed, the temperature set on “high,” and the timer at maximum, the cooktop will maintain safe operation and will not create a hazardous condition even with cooking oil in the cooktop.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. This proposed AD was prompted by reports of the loss of the fixed frequency system, leading to the loss of power to the left and right buses and all systems serviced by these buses. This proposed AD would require modification of the wiring and changes to existing airworthiness limitations. We are proposing this AD to prevent loss of the fixed frequency system, which could lead to loss of a number of the pilot's and co-pilot's flight instruments, in addition to other avionics systems.
We must receive comments on this proposed AD by October 12, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7301; fax (516) 794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2012-09, dated February 15, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been several reported occurrences of the loss of the 400Hz [hertz] Fixed Frequency System, leading to the loss of power to the Left 115VAC [alternating current] bus, the Right 115VAC bus, the Left 26VAC bus, the Right 26VAC bus and all systems serviced by these four electrical buses. The loss of the 400Hz Fixed Frequency System has been attributed to a failure of one or two static inverters, which resulted in the loss of the remaining inverters. The loss of systems serviced by the four fixed frequency electrical buses creates an unsafe condition due to the loss of a number of the pilot's and co-pilot's flight instruments, in addition to the other avionics systems.
This [Canadian] Airworthiness Directive (AD) mandates the wiring modification to untie the 400Hz inverters and additional Airworthiness Limitation tasks introduced as a result of this modification.
Bombardier has issued the following service information:
• Bombardier Service Bulletin 8-24-87, Revision B, dated April 3, 2012;
• de Havilland Dash 8 Series 100 Temporary Revision AWL-117, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 100 Maintenance Program Manual, PSM 1-8-7.
• de Havilland Dash 8 Series 200 Temporary Revision AWL 2-48, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 200 Maintenance Program Manual, PSM 1-82-7; and
• de Havilland Dash 8 Series 300 Temporary Revision AWL 3-118, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 300 Maintenance Program Manual, PSM 1-83-7.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 94 products of U.S. registry. We also estimate that it would take about 9 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $71,910, or $765 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by October 12, 2012.
None.
(1) This AD applies to Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes, certificated in any category, serial numbers 002 through 672 inclusive.
(2) This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these actions, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (k)(1) of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.
Air Transport Association (ATA) of America Code 24; Electrical Power.
This AD was prompted by reports of the loss of the fixed frequency system, leading to the loss of power to the left and right buses and all systems serviced by these buses. We are issuing this AD to prevent loss of the fixed frequency system, which could lead to loss of a number of the pilot's and co-pilot's flight instruments, in addition to other avionics systems.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first: Incorporate the wiring modifications specified in and in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 8-24-87, Revision B, dated April 3, 2012.
Within 30 days after the effective date of this AD: Revise the airplane maintenance program by incorporating Task 2420/13, Operational Check of Relays K4, K5, K6, and K7 (Post Modsum 8Q101917), in the applicable temporary revision specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD. The initial compliance time for Task 2420/13 is within 18,000 flight hours after accomplishing the actions specified in paragraph (g) of this AD, or 30 days after the effective date of this AD, whichever occurs later.
(1) For Model DHC-8-102, -103, and -106 airplanes: de Havilland Dash 8 Series 100 Temporary Revision AWL-117, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 100 Maintenance Program Manual, PSM 1-8-7.
(2) For Model DHC-8-201 and -202 airplanes: de Havilland Dash 8 Series 200 Temporary Revision AWL 2-48, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 200 Maintenance Program Manual, PSM 1-82-7.
(3) For Model DHC-8-301, -311, and -315 airplanes: de Havilland Dash 8 Series 300 Temporary Revision AWL 3-118, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 300 Maintenance Program Manual, PSM 1-83-7.
After accomplishing the revision required by paragraph (h) of this AD, no alternative actions (e.g., inspections) or intervals may be used, unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in paragraph (k)(1) of this AD.
This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 8-24-87, dated May 26, 2011; or Bombardier Service Bulletin 8-24-87, Revision A, dated October 5, 2011.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to MCAI Canadian Airworthiness Directive CF-2012-09, dated February 15, 2012, and the service information specified in paragraphs (l)(1)(i) through (l)(1)(iv) of this AD, for related information.
(i) Bombardier Service Bulletin 8-24-87, Revision B, dated April 3, 2012.
(ii) de Havilland Dash 8 Series 100 Temporary Revision AWL-117, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 100 Maintenance Program Manual, PSM 1-8-7.
(iii) de Havilland Dash 8 Series 200 Temporary Revision AWL 2-48, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 200 Maintenance Program Manual, PSM 1-82-7.
(iv) de Havilland Dash 8 Series 300 Temporary Revision AWL 3-118, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 300 Maintenance Program Manual, PSM 1-83-7.
(2) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
Federal Aviation Administration (FAA), DOT.
Proposed policy; implementation of Section 136; opportunity to comment; correction and extension of time to comment.
The FAA is correcting an inadvertent omission in the Addresses paragraph in the Proposed Policy Regarding Access to Airports From Residential Property that was published in the
The comment period for the proposed policy document published July 30, 2012 (77 FR 44515), is extended to September 14, 2012.
Randall S. Fiertz, telephone: (202) 267-3085; facsimile: (202) 267-5257; email:
On July 30, 2012, the Federal Aviation Administration published a Notice of Proposed Policy in the
There was an inadvertent omission in the Notice which FAA is correcting through this amendment. In the Addresses paragraph, the FAA inadvertently omitted the applicable Department of Transportation Docket Number.
In the document published on July 30, 2012 (77 FR 44515) FR Doc. 2010-18058, on page 44515 in column 3, under the heading
The Experimental Aircraft Association requested the FAA extend the comment period an additional two weeks. The FAA believes this is a reasonable request and hereby extends the comment period to September 14, 2012.
Office of the Secretary, Food and Drug Administration, HHS.
Proposed rule.
The Food and Drug Administration (FDA) of the Department of Health and Human Services (HHS) will be implementing a new system of records, 09-10-0020, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.” HHS/FDA proposes to exempt this system of records from certain requirements of the Privacy Act to protect the integrity of FDA's scientific misconduct inquiries and investigations and to protect the identity of confidential sources in such investigations.
Submit either electronic or written comments by November 13, 2012. If HHS/FDA receives any significant adverse comments, the Agency will publish a document withdrawing the direct final rule within 30 days after the comment period ends. HHS/FDA will then proceed to respond to comments under this proposed rule using the usual notice and comment procedures.
You may submit comments, identified by Docket No. FDA-2011-N-0252, by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier (For paper or CD-ROM submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Frederick Sadler, Division of Freedom of Information, Office of Public Information & Library Services, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 301-796-8975,
FDA is implementing a new system of records called the “FDA Records Related to Research Misconduct Proceedings.” The purpose of this system of records is to implement FDA's responsibilities for addressing research integrity and misconduct, in accordance with the Public Health Service (PHS) Policies on Research Misconduct (42 CFR part 93), for research performed by persons who are FDA employees, agents of the Agency, or who are affiliated with the Agency by contract or agreement. The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds.” (42 CFR 93.100(a)). The PHS Policies on Research Misconduct provide for a number of HHS administrative actions that can be taken in response to a research misconduct proceeding, such as the suspension of a contract, debarment, or an adverse personnel action against a Federal employee (42 CFR 93.407). In addition, under 42 CFR 93.401, FDA shall at any time during a research misconduct proceeding notify HHS' Office of Research Integrity (ORI) immediately to ensure that FDA's Office of Criminal Investigations, HHS Office of Inspector General, the Department of Justice, or other appropriate law enforcement Agencies, are notified if there is a reasonable indication of possible violations of civil or criminal law.
FDA's new system of records will be modeled after the system of records maintained by ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OPHS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 75 FR 44847, August 31, 2009).
FDA's scientific misconduct inquiry and investigation records are located in the Office of the Chief Scientist in FDA's Office of the Commissioner. FDA is preparing to organize and operate these records as a “system of records” as that term is defined by the Privacy Act. FDA is publishing a System of Records Notice (SORN) for this system in the
Under the Privacy Act (5 U.S.C. 552a), individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Privacy Act permits certain types of systems to be exempt
As stated previously in this document, FDA may take administrative action in response to a research misconduct proceeding and, where there is a reasonable indication that a civil or criminal fraud may have taken place, will refer the matter to the appropriate investigative body. As such, FDA scientific misconduct inquiry and investigative files are records compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of records. Moreover, where misconduct inquiry and investigative files are compiled solely for the purpose of making determinations as to the suitability for appointment as special Government employees or eligibility for Federal contracts from PHS Agencies, the subsection (k)(5) exemption is applicable.
HHS/FDA is therefore proposing to exempt this system under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access and amendment provisions of the Act (subsections (c)(3), (d)(1) to (d)(4), (e)(4)(G) and (e)(4)(H), and (f)). As described in the following paragraphs, the exemptions are necessary in order to maintain the integrity of the research misconduct proceedings and to ensure that FDA's efforts to obtain accurate and objective information will not be hindered. However, consideration would be given to requests for notification, access, and amendment that are addressed to FDA's Research Integrity Officer (System Manager) or Privacy Act Coordinator. The specific rationales for applying each of these exemptions are as follows:
•
•
•
•
•
As stated previously in this document, FDA's new system of records will be modeled after the system of records maintained by ORI. ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, accounting, and amendment provisions of the Privacy Act, to ensure that these records will not be disclosed inappropriately (59 FR 36717, July 19, 1994). Likewise, FDA believes that exempting the new system, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA,” from the same Privacy Act provisions is essential to ensure that material in FDA's files related to research misconduct proceedings is not disclosed inappropriately. Except for information that would reveal the identity of a source who was expressly promised confidentiality, the access exemption will not prohibit HHS/FDA from granting respondents' access requests consistent with the PHS Policies on Research Misconduct (42 CFR Part 93), including in those cases in which a finding of research misconduct has become final and an administrative action has been imposed.
This proposed rule is a companion to the direct final rule published in the final rules section of this issue of the
A significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. In determining whether an adverse comment is significant and warrants terminating a direct final rulemaking, we will consider whether the comment
If no significant adverse comment is received in response to the direct final rule, no further action will be taken related to this companion proposed rule. Instead, we will publish a document confirming the effective date within 30 days after the comment period ends, and we intend the direct final rule to become effective 30 days after publication of the confirmation notice.
If FDA receives any significant adverse comments, the Agency will withdraw the direct final rule within 30 days after the comment period ends and proceed to respond to all of the comments under this companion proposed rule using usual notice-and-comment rulemaking procedures. The Agency will address the comments in a subsequent final rule.
A full description of FDA's policy on direct final rule procedures may be found in a guidance document published in the
HHS/FDA has examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this proposed rule is not a significant regulatory action under Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the proposed rule imposes no duties or obligations on small entities, the Agency proposes to certify that the final rule would not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount.
Interested persons may submit to the Division of Dockets Management (see
Privacy.
Privacy.
Therefore, the Department of Health and Human Services is proposing to amend 21 CFR part 21 and 45 CFR part 5b to read as follows:
1. The authority citation for 21 CFR part 21 continues to read as follows:
21 U.S.C. 371; 5 U.S.C. 552, 552a.
2. Section 21.61 is amended by adding paragraph (d) to read as follows:
(d) Records in the following Food and Drug Administration Privacy Act Records Systems are exempt under 5 U.S.C. 552a(k)(2) and (k)(5) from the provisions enumerated in paragraph (a)(1) through paragraph (a)(3) of this section: FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC, 09-10-0020.
3. The authority citation for 45 CFR part 5b continues to read as follows:
5 U.S.C. 301, 5 U.S.C. 552a.
4. Section 5b.11 is amended by adding paragraph (b)(2)(vii)(C) to read as follows:
(b) * * *
(2) * * *
(vii) * * *
(C) FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to temporarily change the enforcement period of special local regulations for one recurring marine event in the Fifth Coast Guard District. This event is the Poquoson Seafood Festival Workboat Race, which includes a series of boat races to be held on the waters of Back River, Poquoson, Virginia. These special local regulations are necessary to provide for the safety of life on navigable waters during the events. This action is intended to restrict vessel traffic during the power boat races on the Back River in the vicinity of Messick Point, in Poquoson, Virginia.
Comments and related material must be received by the Coast Guard on or before September 15, 2012.
You may submit comments identified by docket number USCG-2012-0594 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Hector Cintron, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone 757-668-5581, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
This rule involves an annually occurring marine event that takes place on the 2nd Sunday in October, as published in table to 33 CFR 100.501. The City of Poquoson has requested that the enforcement dates be changed for this year's event.
The City of Poquoson sponsors an annual workboat race which takes place on the navigable waters of the Back River in Poquoson, Virginia. This event occurs in connection with the city's annual seafood festival. A special local regulation is effective annually to create a safety zone for the workboat races.
The regulation listing annual marine events within the Fifth Coast Guard District and corresponding dates is 33 CFR 100.501. The Table to § 100.501 identifies marine events by Captain of the Port zone. This particular marine event is listed in section (c.), line No. 19 of the table.
The current regulation described in section (c.) line No. 19 of the table indicates that the workboat race event should take place this year on October 7, 2012 (the Second Sunday in October). This regulation proposes to change the date for the event to take place on September 30, 2012 for this year only.
A fleet of spectator vessels is expected to gather near the event site to view the competition. To provide for the safety of the participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area. The regulated area as described in 33 CFR 100.501 will be enforced from 1 p.m. to 4 p.m. September 30, 2012, or, in the case of inclement weather, from 1 p.m. to 4
The Coast Guard proposes to temporarily suspend the regulation listed at section (c.) line No. 19 in the Table to § 100.501 and insert this new temporary regulation at the Table to § 100.501 line No. 25 in order to reflect the change of date for this year's event. This change is needed to accommodate the change in date of the annual Seafood Festival Workboat Race Event. No other portion of the Table to § 100.501 or other provisions in § 100.501 shall be affected by this regulation.
This special local regulation will restrict vessel movement in the regulated area during the marine event. The regulated area is needed to control vessel traffic and enhance the safety of participants and spectators of the Poquoson Seafood Festival Workboat Race. The regulation will be enforced from 1 p.m. to 4 p.m. on September 30, 2012 or if necessary due to inclement weather from 1 p.m. to 4 p.m. on October 7, 2012. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the effective period.
In addition to notice in the
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
Although this rule prevents traffic from transiting a portion of certain waterways during specified events, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR § 100.501, Table to § 100.501.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. 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.
The rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in this section of the Back River during the event from 1 p.m. to 4 p.m. on September 30, 2012.
Although this regulation prevents traffic from transiting a portion of the Back River during the event, this rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. Under figure 2-1, paragraph (34)(h), of the Instruction, an environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. In § 100.501, in the Table to § 100.501, temporarily suspend line (c)19.
3. In § 100.501, in the Table to § 100.510, add temporary line 23 to read as follows:
Department of Health and Human Services.
Notice of proposed rulemaking.
The Department of Health and Human Services (HHS or Department), through the National Institutes of Health (NIH), is implementing a new system of records, 09-25-0223, “NIH Records Related to Research Misconduct Proceedings, HHS/NIH.” HHS is exempting this system of records from certain requirements of the Privacy Act to protect the integrity of NIH research misconduct proceedings and to protect the identity of confidential sources in
Submit either electronic or written comments by November 13, 2012. If HHS/NIH receives any significant adverse comments, the agency will publish withdrawing the direct final rule within 30 days after the comment period ends. HHS/NIH will then proceed to respond to comments under this proposed rule using the usual notice and comment procedures.
You may submit comments, identified by [Docket No(s).], by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
•
•
To ensure a more timely processing of comments, HHS/NIH is no longer accepting comments submitted to the agency by email. HHS/NIH encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal, as described previously, in the
Jerry Moore, NIH Regulations Officer, Office of Management Assessment, National Institutes of Health, 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, MD 20852-7669, telephone 301-496-4607, fax 301-402-0169, email
NIH is implementing a new system of records called, “NIH Records Related to Research Misconduct Proceedings” (09-25-0223). This system of records is part of NIH's implementation of its responsibilities under the Public Health Service (PHS) Policies on Research Misconduct, 42 CFR part 93. The system notice applies to alleged or actual research misconduct involving research: (1) Carried out in NIH facilities by any person; (2) funded by the NIH Intramural Research Program (IRP) in any location; or (3) undertaken by an NIH employee or trainee as part of his or her official NIH duties or NIH training activities, regardless of location. A person who, at the time of the alleged or actual research misconduct, was employed by, was an agent of, or was affiliated by contract, agreement, or other arrangement with NIH, is covered by the system if, for example, he or she is involved in: (1) NIH- or PHS-supported biomedical or behavioral research; (2) NIH- or PHS-supported biomedical or behavioral research training programs; (3) NIH- or PHS-supported activities that are related to biomedical or behavioral research or research training, such as the operation of tissue and data banks and the dissemination of research information; (4) plagiarism of research records produced in the course of NIH- or PHS-supported research, research training or activities related to that research or research training; or (5) an application or proposal for NIH or PHS support for biomedical or behavioral research, research training or activities related to that research or research training, such as the operation of tissue and data banks and the dissemination of research information (regardless of whether it is approved or funded).
The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds.” 42 CFR 93.100(a). The PHS Policies on Research Misconduct provide for a number of HHS administrative actions that can be taken in response to a research misconduct proceeding, such as an adverse personnel action against a federal employee, the suspension of a contract, or debarment. 42 CFR 93.407. In addition, pursuant to 42 CFR 93.318 and 93.401, NIH shall at any time during a research misconduct proceeding notify the HHS Office of Research Integrity (ORI) immediately to ensure that NIH's Office of Management Assessment, HHS' Office of Inspector General, the Department of Justice, or other appropriate law enforcement agencies are notified and consulted, if there is a reasonable indication of possible violations of civil or criminal law that may involve such offices.
NIH's system of records is modeled after the system of records maintained by ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 74 FR 44847, Aug. 31, 2009).
NIH's records related to research misconduct proceedings are located in the Office of Intramural Research in NIH's Office of the Director. NIH is updating its organization and operation of these records, to be exempt from Privacy Act requirements, as provided in the direct final rule and in a new “System of Records Notice” which NIH is publishing in the
Under the Privacy Act (5 U.S.C. 552a), individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Act permits certain types of systems to be exempt from some of the Privacy Act requirements, including the access requirement. For example, section 552a(k)(2) allows agency heads to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes. This exemption's effect on the access requirement is qualified in that if the maintenance of the material results in the denial of any right, privilege, or benefit that the individual would be otherwise entitled to by Federal law, the
As stated above, NIH may take administrative action in response to a research misconduct proceeding and, where a civil or criminal fraud may have taken place, NIH may refer the matter to the appropriate investigative body. As such, NIH's records related to research misconduct proceedings are compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of record. Moreover, where records related to research misconduct proceedings are compiled solely for the purpose of making determinations as to the suitability for appointment as special government employees or eligibility for Federal contracts from PHS agencies, the subsection (k)(5) exemption is applicable.
Exempting the system from Privacy Act provisions pertaining to providing an accounting of disclosures, access and amendment, notification, and procedures and rules is necessary to maintain the integrity of the research misconduct proceedings and to ensure that the NIH's efforts to obtain accurate and objective information will not be hindered.
Accordingly, HHS/NIH is exempting this system under subsections (k)(2) and (k)(5) of the Privacy Act from the accounting, access, and amendment, notification and procedures and rules provisions of the Privacy Act (paragraphs (c)(3), (d)(1)-(4), (e)(4)(G) and (H), and (f)) for the reasons stated below. However, consideration will be given to requests for notification, access, and amendment that are addressed to the System Manager. The specific rationale for exempting the system from each of these provisions is as follows:
• Subsection (c)(3). An exemption from the requirement to provide an accounting of disclosures is needed during the pendency of a research misconduct proceeding. Release of an accounting of disclosures to an individual who is the subject of a pending research misconduct assessment, inquiry or investigation could prematurely reveal the nature and scope of the assessment, inquiry or investigation and could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (d)(1). An exemption from the access requirement is needed both during and after a research misconduct proceeding, to avoid revealing the identity of any source who was expressly promised confidentiality. Only material that would reveal a confidential source will be exempt from access. Protecting the identity of a source is necessary when the source is unwilling to come forward and report possible research misconduct because of fear of retaliation (e.g., from an employee or co-worker).
• Subsections (d)(2) through (d)(4). An exemption from the amendment provisions is necessary while one or more related research misconduct proceedings are pending. Allowing amendment of investigative records in a pending proceeding could interfere with that proceeding; even after that proceeding is concluded, an amendment could interfere with other pending or prospective research misconduct proceedings, or could significantly delay inquiries or investigations in an attempt to resolve questions of accuracy, relevance, timeliness, and completeness.
• Subsections (e)(4)(G) and (H). An exemption from the notification provisions is necessary during the pendency of a research misconduct proceeding, because notifying an individual who is the subject of an assessment, inquiry, or investigation of the fact of such proceedings could prematurely reveal the nature and scope of the proceedings in a manner that could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (f). An exemption from this requirement to establish procedures for notification, access to records, amendment of records, or appeals of denials of access to records, is necessary because the procedures would serve no purpose in light of the other exemptions, to the extent that those exemptions apply.
As stated above, NIH's system of records is modeled after the system of records maintained by HHS' Office of Research Integrity (ORI). ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, accounting, access, and amendment provisions of the Privacy Act, to ensure that these investigative files will not be disclosed inappropriately [59 FR 36717 (July 19, 1994)]. Likewise, NIH believes that exempting the new system, “NIH Records Related to Research Misconduct Proceedings, HHS/NIH,” from the Privacy Act provisions is essential to ensure that material in NIH's files related to research misconduct proceedings is not disclosed inappropriately. Except for information that would reveal the identity of a source who was expressly promised confidentiality, the access exemption will not prohibit HHS/NIH from granting respondents' access requests consistent with the PHS Policies on Research Misconduct (42 CFR Part 93), including in those cases in which a finding of research misconduct has become final and an administrative action has been imposed.
HHS/NIH has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that the final rule is not a significant regulatory action under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule imposes no duties or obligations on small entities, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136
Privacy.
For the reasons set out in the preamble, the Department proposes to amend its Privacy Act Regulations, Part 5b of 45 CFR Subtitle A, as follows:
1. The authority citation for Part 5b continues to read as follows:
5 U.S.C. 301, 5 U.S.C. 552a.
2. In § 5b.11, add paragraph (b)(2)(vii)(D) to read as follows:
(b) * * *
(2) * * *
(vii) * * *
(D) NIH Records Related to Research Misconduct Proceedings, HHS/NIH, 09-25-0223.
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to update instructions for assigning basic and supplementary procurement instrument identification numbers.
Comments on the proposed rule should be submitted in writing to the address shown below on or before October 29, 2012, to be considered in the formation of a final rule.
Submit comments identified by DFARS Case 2012-D040, using any of the following methods:
○
○
○
○
Comments received generally will be posted without change to
Veronica Fallon, telephone 571-372-6087.
DoD is proposing to revise the DFARS to eliminate the requirement to utilize an “F” in the 9th position of the procurement instrument identification number (PIIN) to identify awards to certain vendors, including AbilityOne and Federal Prison Industries (UNICOR), and to other Government organizations. These vendors are uniquely identified today by their DUNS number and/or CAGE code and, therefore, associated contract actions are easily tracked. There is no longer any need for DoD to uniquely identify contract actions with these vendors. Under the proposed rule, contract actions with these vendors will be treated and identified in the same manner as those with any other vendor. This change proposes to limit the use of “F” in the 9th position of the PIIN to those task and delivery orders issued under a non-DoD issued contract or agreement. It is anticipated that this proposed change, which further standardizes DoD procedures, will also reduce data errors and interoperability problems throughout the Department's business processes.
DoD is proposing the following changes to the DFARS:
• Revise 204.7003, Basic PII number, paragraph (a)(3), Position 9, by—
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and
DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This proposed rule would affect how DoD contracting officers assign Procurement Instrument Identification Numbers (PIINs) to procurement actions. The proposed rule does not impact small entities as it only impacts the internal operating procedures of the Government by specifying how the assigned PIIN is constructed for certain procurement actions. This change would limit the use of “F” in the 9th position to those calls or orders issued under non-DoD issued contracts, basic ordering agreements, or blanket purchase agreements. As a result of the proposed rule, new awards under the AbilityOne program and the Federal Prison Industries program would no longer reflect an “F” in the PIIN.
The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no significant alternatives to accomplish the stated objectives of this rule. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D040) in the correspondence.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR part 204 is proposed to be amended as follows:
1. The authority citation for 48 CFR part 204 continues to read as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
2. Section 204.7003(a)(3) is amended by revising paragraphs (iii) and (vi) to read as follows:
(a) * * *
(3) * * *
(iii) Contracts of all types except indefinite-delivery contracts, sales contracts, and short form research contracts. Do not use this code for contracts or agreements with provisions for orders or calls—C
(vi) Calls against blanket purchase agreements and orders under contracts (including Federal Supply Schedules, Governmentwide acquisition contracts, and multi-agency contracts) and basic ordering agreements issued by departments or agencies outside DoD. Do not use the F designation on DoD-issued purchase orders, contracts, agreements, or orders placed under DoD-issued contracts or agreements—F
3. Section 204.7004(d)(2) is amended by revising paragraph (ii) to read as follows:
(d) * * *
(2) * * *
(ii) If an office is placing calls against blanket purchase agreements or orders under non-DoD issued contracts (including Federal Supply Schedules, Governmentwide acquisition contracts, and multi-agency contracts), or basic ordering agreements, the office shall identify the instrument with a 13 position supplementary PII number using an F in the 9th position. Do not use the same supplementary PII number with an F in the 9th position on more than one order. Modifications to these calls or orders shall be numbered in accordance with paragraph (c) of this section.
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the Bay skipper (
The finding announced in this document was made on August 28, 2012.
This finding is available on the Internet at
Stephen Ricks, Mississippi Field Office (see
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531
The Bay skipper was identified as a candidate for protection under the Act in the November 21, 1991,
On January 4, 2010, we received a petition dated December 29, 2009, from WildEarth Guardians and Xerces Society for Invertebrate Conservation requesting that the Bay skipper be listed as an endangered or threatened species and critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). In a January 25, 2010, letter to the petitioners, we acknowledged receipt of the petition, and stated that due to prior workload and limited funding, we would not be able to address the petition at that time, but would complete the action when workload and funding allowed. On May 6, 2010, we received a 60-day notice of intent (NOI) to sue under the provisions of the Act from petitioners for our alleged failure to make a finding within 90 days of receipt of the petition. In a June 11, 2010, letter to the petitioners, we acknowledged receipt of the NOI and stated that a publication date for the 90-day finding could not be predicted at that time. Funding became available during fiscal year 2011, and on July 12, 2011, we published a 90-day finding (76 FR 40868) that the petition presented substantial scientific or commercial information indicating that listing this species may be warranted, and requested scientific and commercial data and other information regarding this species. This notice constitutes the 12-month finding on the January 4, 2010, petition to list the Bay skipper as an endangered species.
The Bay skipper, a small butterfly, was described as
The Bay skipper has a wingspan of 1.5 to 1.75 inches (in) (3.7 to 4.4 centimeters (cm)). Males are black with a large orange patch on the top of the wings, and have a prominent black stigma (defined mark) on the forewing. The females are dark brown with yellow spots on their forewing and a yellow streak on their hindwing. The ventral (bottom) sides of both front and hind wings of the females are a shade of brown that is paler than the dorsal (upper) side, and have pale yellow spots on the forewing, with two yellow streaks from the base to the margin (Shuey 1989, p. 165; Vaughan and Shepherd 2005, pp. 1-2; Butterflies and Moths of North America (BMNA) 2009, p. 1). The Bay skipper is similar in appearance to the Dion skipper (
The life history and habitat requirements of the Bay skipper are poorly known. Bay skippers appear to have two major flight periods (late spring and fall), and the potential to produce two generations per year. The gap between the flight periods suggests that the larvae produced during the spring flight period may aestivate (become dormant) in the summer. The species may overwinter (hibernate) in the larval form. Aestivating and hibernating larvae are probably in the third or fourth instar (period between molts) (Vaughan and Shepherd 2005, p. 2).
Bay skippers have been observed only in association with estuarine herbaceous marsh, including brackish and freshwater marshes. The larval food plant is unknown, but
Until recently, the Bay skipper was considered to occur in only two locations: Bay St. Louis, Hancock County, Mississippi, and the Anahuac National Wildlife Refuge (NWR) (part of the Texas Chenier Plains NWR Complex), Chambers and Jefferson Counties, Texas. The lack of records suggested that the species had a very limited range and was very rare (Vaughan and Shepherd 2005, p. 2; NatureServe 2009, 2011). The Bay St. Louis locality was severely damaged by Hurricane Katrina in 2005, and it was unknown if the species continued to survive in that locality. The Anahuac NWR and surrounding areas were inundated by Hurricane Ike in 2008, and no Bay skippers had since been reported at that location (NatureServe 2011, WildEarth Guardians and Xerces Society for Invertebrate Conservation 2009, p. 9).
As part of the status review following the 90-day finding, we contacted lepidopterists along the Gulf Coast for additional records, photographs, specimens, and other information on the distribution and abundance of the Bay skipper. We also conducted a 1-week survey for the Bay skipper at the two known localities, and other potentially suitable habitat along the Gulf Coast between Galveston Bay, Texas, and Sandestin, Florida (Salvato 2011 pp. 1-28). No Bay skippers were found on the Anahuac NWR, or at the type locality in Bay St. Louis. However, we were able to identify seven additional localities where Bay skippers have been recently sighted, two in Texas and five in Cameron Parish, Louisiana. These new
Our survey and our review of the best available scientific and